SUCCESSION | LDCS

INTRODUCTION 4. As to the extent of rights and obligations

involved
❖ SUCCESSION DEFINED IN GENERAL
a. universal succession (covering ALL juridical
- In its generic or general sense, succession (from relations involving the deceased)
the Latin “sub” and “cedere,” meaning the
placing of one person in the place of another) is b. particular succession (covering only certain
defined as the transmission of rights and items or properties)
properties from one person to another
5. Special kind
- Succession may be inter vivos or mortis causa,
depending upon whether the transfer is a. Contractual succession — that kind where a
effective during the lifetime (inter vivos) of the future husband and a future wife give to
giver, or after his death (mortis causa). each other future property, effective mortis
causa, by means of a marriage settlement
- An example of succession inter vivos occurs in an
ordinary donation. Succession mortis causa is ❖ LAW ON SUCCESSION IS ANIMATED BY A UNIFORM
what is discussed in this Title. GENERAL INTENT

❖ SUCCESSION DEFINED IN TECHNICAL SENSE - Being so, no part should be rendered inoperative
by, but must be construed in relation to, any
- Succession is restricted to succession mortis other part as to produce a harmonious whole.
causa.The succession referred to in our Civil
Code, in this Title (Title IV) and in Art. 774 is
succession mortis causa. It is in this limited sense CHAPTER 1: GENERAL PROVISIONS
that succession denotes the transfer of title to
property under the laws of descent and 774 Succession is a mode of acquisition by virtue of
distribution, taking place as it does, only on the which the property, rights and obligations to
death of a person. the extent of the value of the inheritance, of a
person are transmitted through his death to
❖ KINDS OF SUCCESSION another or others either by his will or by
1. As to effectivity operation of law.

a. succession inter vivos (example: donation) ❖ SUCCESSION MORTIS CAUSA’ DEFINED

b. succession mortis causa (this is succession in - Art. 774 speaks of succession mortis causa; it
the specific sense meant in Art. 774) also defines the term.

2. As to whether a will exists or not ❖ IMPORTANT ELEMENTS OF THE DEFINITION

a. testamentary succession (there is a will) a. mode of acquisition (or ownership)

b. intestate or legal succession (there is NO b. transfer of property, rights, and obligations to

will) the extent of the value of the inheritance of a
person (called grantor or transferor, decedent,
c. mixed succession (part of the property has testator, or intestate)
been disposed of in a will)
c. transmission thru death (not during life)
3. As to the transferees of the property
d. transmission to another (called grantee, or
a. compulsory succession (refers to the transferee, heir, legatee, or devisee)
legitime)
e. by will or by operation of law (testamentary or
b. voluntary succession (refers to the free legal succession)
disposal)
❖ BASES FOR SUCCESSION

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a. The natural law which obliges a person to a. property

provide for those he would leave behind (this is
a consequence of family relations; a recognition b. rights not extinguished by death
of the natural law of con sanguinity, or of blood, c. obligations not extinguished by death (to the
and the natural affection of a person toward extent of the value of the inheritance)
those nearest him in relationship
❖ NACAR V. NISTAL (L-33006, Dec. 8, 1982)
b. A socio-economic postulate which would
prevent wealth from becoming inactive or - A person has no obligation to pay for the debts
stagnant (this is essential from an economic of his stepfather.
standpoint to enable social economy to be firm. ❖ PROPERTY
c. The implicit attributes of ownership which would - These include real as well as personal properties.
be imperfect, if a person is not allowed to Moreover, the transferee will also own
dispose of his property, such disposal to take accessions to the property accruing thereto,
effect when he is already dead (this is a from the moment of death to the time of actual
consequence of rights to property) receipt by said transferee.
775 In this Title, “decedent” is the general term o This is because ownership is transferred
applied to the person whose property is at the moment of death. The human
transmitted through succession, whether or corpse is not a property and is therefore
not he left a will. If he left a will, he is also called not part of the estate.
the testator.
▪ This is without prejudice to RA
❖ DECEDENT DEFINED 349, as amended by RA 1056
- The decedent is the person whose estate is to be allowing under certain
distributed. He is also called: conditions the granting to
certain entities of a person’s
a. testator — if he left a will organs after death.
b. intestate — if he left no will - It is understood, of course, that properties NOT
BELONGING to the estate must be excluded, for
776 The inheritance includes all the property, rights
they are not part of the inheritance. Hence, it is
and obligations of a person which are not
important to determine the ownership of the
extinguished by his death.
properties involved.
❖ INHERITANCE DISTINGUISHED FROM SUCCESSION
• ANDERSON V. PERKINS (L-15388, Jan. 31, 1961)
- Inheritance is the property or right acquired;
- Before the perishable and other property of the
succession is the manner by virtue of which the
estate of the deceased are sold by the special
property or right is acquired.
administrator, it is clear that proceedings must
- In American law, succession is also referred to as first be taken to segregate the alleged exclusive
“descent.” “Title by descent,’’ is defined as the property of the surviving spouse. The issue of the
title by which one person on the death of ownership of said properties should be decided
another, acquires the estate of the latter as his first, and the conjugal properties liquidated, or at
heir at law. least the surviving spouse should agree as to
which properties he or she does not mind tobe
- Administration is distinguished from succession sold. Any sale done without this requirement
as follows: the former means dealing with a should be considered premature, and the court
deceased person’s property according to law; must therefore refuse to grant permission.
the latter, the transferring to it beneficially.
• MAGALLANES V. KAYANAN (L-31048, Jan. 20,
❖ WHAT INHERITANCE INCLUDES 1976)
- Latin — “hereditas”; Spanish — “herencia”
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- The CFI (now RTC) has no jurisdiction to pass 2. Right to compel the execution of a document
finally and definitely upon the ownership of necessary for convenience, provided that
properties involved in probate proceedings or in the contract is valid and enforceable under
the summary settlement of estates. Such the Statute of Frauds.
questions must be submitted to the CFI (now
RTC) in the exercise of its general jurisdiction to 3. Right to continue a lease contract either as
try and determine ordinary actions. (Cordova lessor or lessee, unless otherwise provided
Vda. de Mañalac v. Ocampo, 73 Phil. 661). for in the contract. (Of course, it is
understood here that if the lessee heir
- The probate court may do so only for the continues as lessee, he should still pay the
purpose of determining whether or not a given rents as they fall due from time to time, even
property should be included in the inventory of if the inheritance has already disappeared —
the estate of the deceased, but such the obligations being his, and no longer the
determination is not conclusive and is still decedent’s.).
subject to a final decision in a separate action to
be instituted between the parties. (Janquera v. 4. Property right in an insurance policy (the
Borromeo, L-18498, Mar. 30, 1967; See also Vda. interest of a beneficiary in a life insurance
de Valera v. Ofi lada, L-27526, Sep. 12, 1974). policy) is a vested interest (provided, the
designation of the beneficiary is
- Likewise, the probate court may also determine irrevocable), and as such is transmissible by
questions of title to property, if the parties hereditary succession, unless by the terms of
voluntarily submitted to its jurisdiction, and the policy it is otherwise provided
introduced evidence to prove ownership.
(Cordova Vda. De Mañalac v. Ocampo, 73 Phil. [NOTE: Therefore, that generally, the life insurance policy
661). or the right to the indemnity belongs to the beneficiary,
transmissible to his own heirs; and NOT to the insured, or
❖ RIGHTS the latter’s own heirs]
- Some rights are extinguished by death: some are • MABALOT V. MADELA (L-56700, Mar. 28, 1983)
not.
- The city or municipal court has jurisdiction
- Examples of rights extinguished by death (and because the legal question about the inheritance
which therefore are not part of the estate): is only incidental in determining whether the
petitioners are entitled to the possession of the
1. intransmissible personal rights because of
apartment or not.
their nature (such as those appertaining to
family rights, marital and parental authority, • NOEL V. CA (58 SCAD 67 1995)
support, action for legal separation,
partnership, agency, life annuity). - The rights to inheritance of a person who died,
with or without a will, before the effectivity of
2. right to claim acknowledgment or the Civil Code were governed primarily by the
recognition as a natural child. provisions of the Spanish Civil Code of 1889
3. right to hold public or private offi ce or job. - Under the Spanish Civil Code of 1889, a spouse
who is survived by brothers and sisters or
[NOTE: The above-mentioned rights have no
children of brothers or sisters of the decedent,
inheritability,i.e., they are not transmissible mortis
was entitled to receive in usufruct the part of the
causa.]
inheritance pertaining to said heirs. The
- Examples of rights not extinguished by death surviving spouse, as the administrator and
(and which therefore are part of the estate): liquidator of the conjugal estate, under the law
in force in 1945, occupies the position of a
1. Right to bring or continue an action for trustee of the highest order and was not
forcible entry or unlawful detainer. permitted by the law to hold that estate or any
portion thereof adversely to those for whose

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benefit the law imposed upon him the duty of devisees. Indeed, the court may order
administration and liquidation. the sale of suffi cient property for the
satisfaction of the debts and the heirs
- Illegitimate children who were not natural were cannot question this. Such a step is
disqualifi ed to inherit under the Spanish Civil necessary for the eventual partition of
Code of 1889. the estate. No residue may also be
- The buyer of a parcel of land at a public auction divided among the creditors of said heirs
to satisfy a judgment against a widow acquires without fi rst settling the debts of the
only one-half (1/2) interest on the land deceased.
corresponding to the share of the widow and the o NOTE: A creditor of an HEIR (who is not
other half belonging to the heirs of her husband the creditor of the DECEASED), who
becomes impressed with a constructive trust in intervenes in the estate proceedings,
behalf of said heirs. cannot therefore ask the court to sell the
- The prescriptive period within which collateral properties which the HEIR-DEBTOR
heirs could fi le an action to recover their share expects to receive. This is because the
in the property sold to a third person accrued debts of the DECEASED himself must fi
from the date of the registration of the deed of rst be paid. Then and only then can we
sale with the Register of Deeds, not from the determine if there is a suffi cient residue
moment of death of the decedent. left for the HEIRS or for the HEIRS’
CREDITORS
❖ OBLIGATIONS NOT EXTINGUISHED BY DEATH
❖ CASES
- In general, all obligations are transmissible
(Araneta v. Montelibano, 14 Phil. 117) unless 1. LEDESMA V. MCLACHIN
purely personal (like the obligation to support) FACTS: A has a child B who has a child C. B is indebted to
or non-transferable by law or contract. Hence, it a stranger, but dies before he pays the same. A then died,
is proper to say, from one viewpoint, that an heir leaving C as heir. In A’s intestate proceedings, the
still pays for the debts of his deceased father, but stranger presents his claim for the credit. Question: Is C
only if same can be covered by the inheritance. bound to pay for the debt, or will A’s estate answer, or
• VIARDO V. BELMONTE ET.AL (L-14122, Aug. 21, will no one be held responsible?
1962) HELD: Neither A’s estate nor C is liable, for neither
- The children cannot be held personally liable, contracted the debt, nor may it be said that C is inheriting
despite the substitution. The remedy of the from B — for the truth is, C in the case presented, is
plaintiff, the creditor, is to proceed against the inheriting only from A. Therefore, the creditor-stranger
estate of the deceased father. must shoulder the loss himself.

• PAMPLONA V. MORETO ET.AL (L-33187, Mar. 2. MONTESA V. CA

31, 1980) - If the parties say that the properties involved in
- Under Art. 776 the heirs inherit also the the case were inherited by them from their
obligation of the deceased which are not deceased parents and grandparents, we can
extinguished by his death. assume that the properties were the conjugal
lots of said grandparents. A contrary conclusion
- NOTE: From still another angle, it is correct to say would be very technical.
that money debts are NOT inherited at all, since
only the balance is left for distribution among 3. RABADILLA V.CA
the heirs — thus it has been held — - Under Art. 776, inheritance includes all the
o That while the debts of the deceased still property, rights, and obligations of a person, not
remain unpaid, no residue may be extinguished by his death.
divided among the heirs, legatees, and

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- Conformably, whatever rights Dr. Jorge Rabadilla 777 The rights to the succession are transmitted
had by virtue of subject Codicil were transmitted from the moment of the death of the decedent
to his forced heirs, at the time of his death. And
since obligations not extinguished by death also ❖ CONDITIONS FOR THE TRANSMISSION OF
form part of the estate of the decedent, SUCCESSIONAL RIGHTS
corollarily, the obligations imposed by the 1. that indeed there has been a death (either actual
Codicil on the deceased, Dr. Jorge Rabadilla, or presumed)
were likewise transmitted to his compulsory
heirs upon his death. 2. that the rights or properties are indeed
transmissible or descendible
❖ WHEN JUDICIAL ADMINISTRATION IS NOT
ESSENTIAL 3. that the transferee is still alive (no predecease),
willing (no repudiation), is capacitated to inherit.
- Judicial administration is not essential when the [NOTE: These are also called the requisites for
deceased left no pending obligations. To compel succession mortis causa.].
the submission of the property inherited to
judicial administration is unnecessary or [NOTE: Though the law says “are transmitted,” the
superfluous proper words should be “are made effective,” for
otherwise, we may be led to believe that the decedent’s
- It is understood, of course, that the heirs inherit right to succeed are what are transmitted, and not the
the property subject to the decedent’s liabilities. rights to the inheritance.].
Such liabilities, if not monetary, can be threshed
out in an ordinary action, despite the lapse of the • GABIL V.PEREZ (GR 29541, Jan. 27, 1989)
estate proceedings.
- The rights to the succession are transmitted to
• GUICO ET. AL V. BAUTISTA ET.AL (L-14921, Dec. the heirs from the moment of death of their
31, 1960) predecessor

- The law allows the partition of the estate of a • MARIA VDA. DE REYES V.CA (GR 92436, July 26,
deceased person by the heirs, extrajudicially or 1991)
thru an ordinary action for partition, without the
- The rights to the succession are transmitted
fi ling of a special proceeding and the
from the moment of death of the decedent. The
appointment of an administrator for the purpose
estate of the decedent would then be held in co-
of the settlement of said estate only if the
ownership by the heirs. The co-heir or co-owner
decedent left no debts and the heirs and
may validly dispose of his share or interest in the
legatees are all of age, or the minors are
property subject to the condition that the
represented by their judicial guardians.
portion disposed of is eventually allotted to him
o The reason is that where the deceased in the division upon termination of the co-
dies without pending obligations, there ownership.
is no necessity for the appointment of an
• DANILO SUAREZ V. CA (GR 94918, Sep. 2, 1992)
administrator to administer the estate
for them, and to deprive the real owners - It would be useless to discuss the procedural
of their possession to which they are issue on the validity of the execution and the
immediately entitled manner of publicly selling en masse the subject
properties for auction. The law in point is Article
- The situation, however, is DIFFERENT where the
777 of the Civil Code, the law applicable at the
deceased left pending obligations. In such cases,
time of the institution of the case: “The rights to
the obligations must be first paid before the
the succession are transmitted from the
estate can be divided; and unless the heirs reach
moment of the death of the decedent.’’
an amicable settlement as to how such
obligations should be settled, the estate would - Article 888 further provides: “The legitime of the
inevitably be submitted to administration for the legitimate children and descendants consists of
payment of such debts. one-half of the hereditary estate of the father
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and of the mother. The latter may freely dispose a. Ordinary presumption because of ordinary
of the remaining half, subject to the rights of absence
illegitimate children and of the surviving spouse
as hereinafter provided.’’ Article 892, par. 2 o An absentee (who disappears under
likewise provides: “If there are two or more normal conditions, there being no
legitimate children or descendants, the surviving danger or idea of death) shall be
spouse shall be entitled to a portion equal to the presumed dead for the purpose of
legitime of each of the legitimate children or opening his succession — at the end of
descendants.’’ Thus, from the foregoing, the ten years (at the end of five years in case
legitime of the surviving spouse is equal to the he disappeared after the age of seventy-
legitime of each child. The proprietary interest of fi ve). (Art. 390, Civil Code). Here, the
petitioners in the levied and auctioned property death is presumed to have occurred at
is different from and adverse to that of their the end of the 10- year or 5-year period
as the case may be.
mother. Petitioners became co-owners of the
property not because of their mother but b. Extraordinary presumption because of
through their own right as children of their extraordinary or qualified absence
deceased father.
o Under Art. 391 of the Civil Code,
• NELSON NUFABLE V. GENEROSA NUFABLE qualified absence occurs (qualified or
ET.AL (GR 126950, July 2, 1999) extraordinary because of great
probability of death). The law says that
- Accordingly, for the purpose of transmission of
the following shall be presumed dead for
rights, it does not matter whether the Last Will
all purposes including the division of the
and Testament of the late Esdras Nufable was
estate among the heirs:
admitted on Mar. 30, 1966 or thereafter or that
the Settlement of Estate was approved on June 1. A person on board a vessel lost
6, 1966 or months later. during a sea voyage, or an aeroplane
which is missing, who has not been
❖ ACTUAL DEATH
heard of for four years since the loss
- If a decedent dies on July 5, 2002, and the of the vessel or aeroplane;
property is actually delivered to the heir only on
2. A person in the armed forces who
Aug. 4, 2002 — the heir, unless otherwise
has taken part in war, and has been
disqualifi ed, becomes the owner and possessor
missing for four years;
of the property, beginning July 5, 2002. This is
because it is not tradition (delivery) that 3. A person who has been in danger of
transfers ownership here, but succession. death under other circumstances
Moreover, the effects of an acceptance (of the and his existence has not been
inheritance) retroact to the moment of death. known for four years. (Art. 391).
(Art. 1042).
[NOTE: Please observe that in extraordinary absence, it
- If, upon the other hand, instead of acceptance, has been held that the person is presumed to have died
there is repudiation, it is as if the heir never at the time of the disappearance, that is, at the time the
owned, never possessed the property, also calamity took place, and not at the end of 4 years. In
because of the retroactive effect of a other words, at the end of 4 years, the presumption will
repudiation. (See Art. 1042). In the last case, in arise that death had occurred 4 years before. Thus, a
the absence of any other heir, the State inherits member of the Philippine Armed Forces, Geronimo
the property, and the same will be considered Gonzales, who was said to be “missing in action” when
patrimonial. our Army surrendered to the Japanese on May 7, 1942,
was presumed to have died on or before said date (May
❖ PRESUMED DEATH
7, 1942), and not later. (Judge Advocate General v.
- Two kinds of presumed death: Gonzales, [CA] 48 O.G. 5329, 17 C.J. 1174). This ruling
does not contradict the law because the law says that
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“division of the estate” will be made only at the end of 4 certain that the spurious child should
years. In other words, the succession really took place 4 inherit, despite his being born under the
years before (on the day of the disappearance) but actual old Code — there being no vested right
division will only be at the end of 4 years. In other words, of the legitimate children that would be
from the beginning of said 4 years, the heir shall be prejudiced.
considered the owner and possessor of the property, and
not only from the end thereof.]. [NOTE: Had the father died before Aug. 30, 1950, the
spurious child would not have been entitled since this
[NOTE: In both ordinary or extraordinary absences, the time, vested rights of the legitimate children would be
succession is only of provisional character because there prejudiced. This is true even if there are settlement
is always the chance that the absentee may still be alive. proceedings in court, resulting in the delivery of the
Moreover, the presumptions regarding the time of death property to the heirs only after the new Civil Code had
are rebuttable, that is, proof may be presented as to become effective. (See also Jayme v. Gamboa, 75 Phil.
when death actually occurred.]. 479). After all, the transfer of ownership takes place not
after “delivery’’ but from the moment of death,
❖ EFFECT OF ABSENTEE’SRETURN OR APPEARANCE succession being by itself (and without the necessity of
- he shall recover his property in the condition in delivery) a mode of acquiring ownership. Upon the other
which it may be found, and the price of any hand, the rights to the inheritance of a person who died,
property that may have been alienated or the with or without a will, before the effectivity of the new
property acquired therewith; but he cannot Civil Code shall be governed by the Civil Code of 1889, by
claim either fruits or rent. other previous laws and by the Rules of Court. (Members
of the Cult of San Miguel Arcangel v. Narciso, L-24843,
- Query: Suppose the heir had already spent the July 15, 1968).]
money (for food, for example), is there an
obligation to reimburse its value? It is submitted (NOTE: In the case of Lilia Juana Barles, et al. v. Don
that there is no obligation to reimburse, Alfonso Ponce Enrile, L-12894, Sep. 30, 1960, the
inasmuch as the consumption had been made in Supreme Court held that while the Civil Code nowhere
good faith.]. The recovery may not be made specifi es the period within which the action to
anymore, however, if the heir, devisee, or investigate spurious paternity should be brought, still the
legatee has acquired the property through action is similar to the action for compulsory recognition
prescription (extraordinary prescription in view of natural children. Both are actions whereby the child
of the lack of a just title, there being no true may prove that the defendant is in fact the father or
succession) mother of the plaintiff, notwithstanding the refusal of the
parent to admit the generative link. Generally, the
❖ PROBLEM ON TRANSITIONAL PROVISIONS investigation should take place during the lifetime of the
- Under the old Civil Code, spurious children were putative parent, for only the parent is in a position to
not entitled to inherit even if their filiation had reveal the true facts surrounding the claimants’
been judicially decreed or declared. Under the conception. Logically, therefore, the same time
new Civil Code, said children if recognized limitation, in the absence of an express legal provision to
voluntarily or by judicial decree are entitled to the contrary, should apply to BOTH actions.).
inherit. Now then, if a spurious child was born in ❖ SOME EFEFCTS OF TRANSMISSION OF RIGHTS
1938, but his father died in 1951, will said child FROM DEATH
inherit?
- Prior to a person’s death, his heirs merely have
o ANS.: Yes, he will inherit so long as he an inchoate right to his property. Therefore,
can prove his filiation because the rights during his lifetime, the heirs have no right of
to the succession are transmitted or disposition or alienation over said properties
effected only from the moment of death
— 1951. Thus, since it is the father’s - After death, the heirs own the property, subject
death that gave rise to the succession, to the decedent’s liabilities. Therefore, they may
and since the death occurred when the dispose of the same, and this is so, even if, in the
new Civil Code was already effective, it is meantime, the property is under administration.
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- Indeed, there is no doubt that an heir can sell necessity to appoint an administrator, and the
whatever right, interest, or participation he may heirs themselves may enter upon the
have in the property under administration. This administration of the property.
matter certainly comes under the jurisdiction of
the probate court, and if the seller-heir should o They may even decide to have a joint
die in the meantime — pending the said probate administration or if they so desire, may
proceedings — the validity of the sale should not even, by mutual agreement, partition
be threshed out in a separate action the property among themselves.

- In fact, a declaration of heirs may be made even - Even though the heirs, legatees, or devisees have
BEFORE all debts, expenses, and taxes have been already taken possession of the estate, the
paid. What is prohibited prior to such payment is possession should be surrendered by them to
the assignment or distribution of the residue of the judicial administrator, in case one be
the deceased’s estate. appointed by the court.

- Pending liquidation of the estate, the heirs are o Said administrator will now be subject to
entitled to certain allowances for their support orders from the Court, unless he allows
— and these, in the proper cases, are chargeable the heirs to remain in possession.
against the estate. - Even if an administrator has already been
- While it is true that “future” inheritance cannot appointed, the heirs still have the right to
be sold, it is valid for an heir, after the testator’s intervene in judicial proceedings, if they have
death, to sell his share in the estate even reasons to believe that the administrator’s
pending its liquidation, for here the inheritance actuations are detrimental to their rights.
is “present,” no longer “future.” o Thus, when an administrator is sued as
o “Future inheritance” is that which may defendant in a claim against the estate,
eventually be received from a person based on a promissory note, failure by
still alive. It is any property or right not him to present the available defenses
yet in existence or not yet capable of will make it possible for the heirs to
determination at the time a contract is intervene.
made which a person in the future may - Parenthetically, a suit may be brought even
acquire by succession against a special administratrix (in a suit against
o Similarly, a donation of said property the estate), otherwise, creditors would fi nd the
after the predecessor’s death but before adverse effects of the statute of limitations
a judicial declaration of heirship, is NOT running against them in cases where the
a donation of “future property.” Hence, appointment of a regular administrator is
it is VALID. delayed.

❖ WHEN THERE IS NO NECESSITY OF PRIOR o The administrator must render an

DECLARATION OF HEIRSHIP accounting. In determining whether or
not the items of expenditures
- If there are no pending settlement proceedings presented, whether supported by
for the distribution of an estate, there is no receipts or not, are correct, the court
necessity for a prior declaration of heirship may take into account their probability
before the heirs are allowed to begin an action and the reasonableness of each and
arising from any right of the deceased, such as every item thereof.
the right to bring an action to annul a deed of
sale or to bring about a partition. o The duty of an administrator to render
an account
❖ ADMINISTRATIONOF THE ESTATE
o is NOT a mere incident of an
- When the heirs are all of legal age, and there are administration proceeding which can be
no debts to be settled, there is generally no waived or disregarded when the same is
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terminated, but it is a duty that has to be - The trial court has to see to it that the inventory
performed and duly acted upon by the of the administator lists all the properties, rights,
court before the administration is fi nally and credits which
ordered closed and terminated
- the law requires the administrator to include in
o It is understood, of course, that the his inventory. Likewise, it has the inherent power
expenses of administration shall be to determine what properties, rights, and credits
borne by the properties under of the deceased the administrator should include
administration or the income therefrom. or exclude in the inventory.
- The administrator can be held personally liable - However, it has no authority to decide whether
only for any malfeasance, maladministration or the properties, real or personal, belong to the
violation of any of his duties as administrator. estate or to the persons examined. If after such
Attorney’s fees are, proper administration examination there is good reason to believe that
expenses. If the heirs had already been given the person examined is keeping properties
their shares, they should be liable belonging to the estate, then the administrator
proportionately. should fi le an ordinary action in court to recover
the same.
❖ POSSESSION OF PROPERTY BOTH BY
ADMINISTRATOR AND BY HEIRS o Thus, in case of fraudulent conveyances,
a separate action is necessary to recover
- The executor or administrator shall have the these assets
right to take possession of the properties of the
deceased so long as it is necessary for the ❖ EFFECT OF FRAUDULENT INTESTATE PROCEEDINGS
payment of the debt and expenses of
administration. Where there are no debts to be - If heirs conceal the existence of other heirs and
paid, the estate should pass to the heirs. as a result of such concealment, the intestate
proceedings should award them with property,
- While the hereditary property is materially the prejudiced heirs can still fi le an action to
possessed by the administrator (in the concept recover their shares, notwithstanding the
of holder or administrator), it cannot be denied termination of the settlement proceedings.
that it is also possessed by the heir (as owner-
possessor) thru another — the administrator. o This is because ownership of their shares
This is because the ownership and the accrued to them automatically upon the
possession of the property are transmitted to decedent’s death.
the heir from the moment of death, as long as ❖ WHEN NO TRANSMISSION OCCURS
the heir accepts. (Art. 533)
- If the heir instituted is incapacitated, repudiates
o Thus, for purposes of prescription (as the inheritance, or predeceases the testator,
when the deceased really did not own said heir inherits nothing.
the property), the time during which the
property was being administered should - The same conclusion is reached when although
be counted in favor of the heir for then the heir is ready, willing, and able — the right is
such heir would be a possessor in the not transmissible or descendible — as for
concept of owner. For the same reason, instance, the right to support.
a sale made by an administrator is really ❖ ACCRUALOF THE ESTATE TAX
a sale of the heir’s rights and properties,
and consequently said heirs cannot be - The tax at T’s death — so, the value of the estate
deemed strangers to the sale must be computed as of this time — not ten
years later.
❖ INHERENT DUTY OF TRIAL COURT RE
ADMINISTRATOR’S INVENTORY o “If death is the generating source from
which the power of the state to impose
inheritance taxes takes its being, and if
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upon the death of the decedent, death of the decedent thru

succession takes place and the right of testamentary, intestate, or mixed
the state to tax vests instantly, the tax succession. (Art. 778).
should be measured by the value of the
estate as it stood at the time of the ❖ ORDER OFADJUDICATION
decedent’s death, regardless of any - Towards the end of the testate proceedings, the
subsequent contingency affecting value court will make an “order of adjudication”
or any subsequent increase or decrease distributing the properties of the estate to those
in value. entitled thereto.
(NOTE: - This “order” is the judicial recognition that in
a. The inheritance (estate) tax is a tax not on the appointing persons as heirs, legatees, or
property itself but on the transmission (transfer devisees, the testator did not contravene the law
or devolution) of the property. and the recipients were in no way disqualified to
inherit in the same manner that a final order
b. The date the inheritance (estate) tax accrues is admitting a will to probate excludes the entire
distinct from the date on which it must be paid. world from contending that the statutory formal
requisites have not been observed in executing
c. The ESTATE tax is a virtual charge on the giver the will.
(the deceased) for the transmission of the
property; the INHERITANCE (now changed to ❖ WHERE THE WAIVER IS DEEMED VALID
estate) tax is a charge on the recipient (the heirs,
devisees, and legatees). The inheritance tax is - The waiver is valid because, contrary to
paid on what is LEFT after the estate tax has been petitioner’s protestation, the parties waived a
deducted from the residuary estate. known and existing interest — their hereditary
right which was already vested in them by
d. Estate and inheritance taxes are complements of reason of the death of their father. Article 777 of
income taxes. Generally, because of the the Civil Code provides that “[t]he rights to the
imperative needs of the government for revenue, succession are transmitted from the moment of
the usual remedies available to citizens against death of the decedent.’’
creditors do not operate to the prejudice of tax
collection. Thus, taxes are not considered debts, o Hence, there is no legal obstacle to an
and a person may be imprisoned for failure to heir’s waiver of his/her hereditary share
pay taxes. “even if the actual extent of such share
is not determined until the subsequent
e. The administrator may not be required to pay the liquidation of the estate.’’ At any rate,
taxes where the government in turn is indebted such waiver is consistent with the intent
to the same taxpayer for an amount greater than and letter of the law advocating
the amount of the tax. In fact, compensation of compromise as a vehicle for the
the concurrent debts may even take place by settlement of civil disputes
operation of law, so long as the requisites for
legal compensation are present) ❖ EFFECT WHERE BOTH PARENTS’ DEATHS OCCURED
BEFORE THE ENACTMENT OF THE NEW CIVIL CODE
[NOTE: Under the National Internal Revenue Code as IN 1950
amended, inheritance taxes have already been
- The two groups shall share equally in the subject
eliminated, along with donee’s taxes.].
property in accordance with the old Civil Code
❖ BAR QUESTION
778 Succession may be:
- When and how is the right to succeed a deceased
person acquired? (1) Testamentary;

o ANS.: The right to the succession is (2) Legal or intestate; or

transmitted from the moment of the

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(3) Mixed. 780 Mixed succession is that effected partly by will

❖ MIXED SUCCESSION and partly by operation of law
- The decedent may have died partly testate and ❖ MIXED SUCCESSION
partly intestate. Insofar as the will disposes of
certain properties, this is generally the law that - While the Civil Code (both old and new) allows
should govern. mixed succession, this was prohibited under
Roman Law. (5 Manresa 326).
❖ OTHER KINDS OF SUCCESSION
- A made a will, disposing half of his properties. If
- Aside from the three kinds of succession the will is later on declared null and void for lack
enumerated in the law, there are two more, of the proper signature, is this a case of legal or
namely: mixed succession?
a. compulsory (or necessary or forced) o ANS.: Legal because the will being void,
succession — or succession to the legitime. the entire estate descends to the heirs
by operation of law.
[NOTE: It is compulsory for the testator to give his
compulsory heirs their legitimes; but it is not compulsory 781 The inheritance of a person includes not only
for the heirs to receive or accept said legitimes, for no one the property and the transmissible rights and
is compelled to accept an economic advantage or benefit obligations existing at the time of his death,
from another.]. but also those which have accrued thereto
since the opening of the succession
b. contractual succession — (This happens
when a future husband and future wife give ❖ WHAT INHERITANCE INCLUDES
to each other in their marriage settlement as
much of their future property, in the event - the property, transmissible rights, and
of death, as they may validly dispose of in a obligations (to the extent of the value of the
will. inheritance)

(NOTE: Contractual succession does not need the - as well as those which have accrued thereto
formalities of a will; a marriage settlement [which must since the opening of the succession (such as
comply with the Statute of Frauds as to form, i.e., in alluvium)
writing] is suffi cient.) [NOTE: The accretions or accessions are not strictly
779 Testamentary succession is that which results inherited for they form part of the estate only after the
from the designation of an heir, made in a will heirs become the owners thereof; hence, properly
executed in the form prescribed by law speaking, they are acquired by accretion (as an incident
of ownership under the LAW), not by succession.].
❖ SOME RULES FOR TESTAMENTARY SUCCESSION
❖ AFTER ACQUIRED PROPERTIES
a. Testamentary succession may be done thru a will
or thru a codicil. - Note that property acquired by the testator
between the time the will is made and the time
b. The will or codicil may be: he dies, is NOT given to the designated heir
unless the contrary has been expressly provided.
1. notarial (ordinary, attested, or (Art. 793). Such property is acquired PRIOR to
acknowledged) the death, not afterwards.
2. holographic (handwritten by the testator
782 An heir is a person called to the succession
from beginning to end, complete with date
either by the provision of a will or by operation
and signature)
of law. Devisees and legatees are persons to
c. In case of doubt, testamentary succession is whom gifts of real and personal property are
preferred to legal or intestate succession. respectively given by virtue of a will

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❖ TRANSFEREES (“CAUSAHABIENTES”) IN [NOTE: While there can be heirs in either testate, legal, or
TESTAMENTARY SUCCESSION mixed succession, legatees and devisees can exist only in
testamentary succession.].
- Heirs (if they succeed by universal title, that is, to
ALL or a FRACTION or ALIQUOT PART of the ❖ TRANSFEREES (“CAUSAHABIENTES”) IN LEGAL
properties, rights and obligations). (See 6 SUCCESSION
Manresa 343).
- In legal succession, the transferees are called
[NOTE: Heirs may be compulsory (if entitled to the legal or intestate heirs.
legitime) or voluntary (like a friend). Examples — “T
institutes Y as heir”; “T gives Y 1/3 of his properties.”]. ❖ POSSIBILITY OF DUAL STATUS

- Legatees and Devisees (if they succeed by - If in a will, a compulsory heir is given more than
particular title to cash or to a particular or specifi his legitime, he assumes a dual status:
ed item or thing in the inheritance). (See 6 a. Insofar as his legitime is concerned, he is a
Manresa 343). compulsory heir.
[NOTE: They are called: b. Insofar as the excess is concerned, he is a
1. Legatees — if they succeed to particular personal voluntary heir.
properties (legacies). - This distinction is important because if a
Examples: “T gives L this Lexus car”; “T gives 5 million.’’ compulsory heir dies ahead of the testator, his
legitime is inherited by his own child.
2. Devisees — if they succeed to particular real
properties (devises). - On the other hand, the child of a voluntary heir
who predeceases or dies ahead of the testator
Example: “T gives D this piece of land.”]. gets nothing from said testator. (Art. 856).
❖ IMPORTANCE OF THE DISTINCTION BETWEEN HEIRS ❖ DIFFERENCE BETWEEN “SALE” AND “WAIVER OF
ON THE ONE HAND, AND LEGATEES AND DEVISEES HEREDITARY RIGHTS”
UPON THE OTHER HAND
- In a contract of sale, one of the contracting
- While in general, there is no difference in parties obligates himself to transfer the
capacity, effect, and solemnities, still, one ownership of and to deliver a determinate thing,
important distinction must be pointed out, and the other party to pay a price certain in
namely — that while in preterition (Art. 854) an money or its equivalent. Upon the other hand, a
instituted voluntary heir gets nothing, a legatee declaration of heirship and waiver of rights
or devisee still gets the property given as long as operates as a public instrument when fi led with
the legitime is not impaired. the Registry of Deeds whereby the intestate
heirs adjudicate and divide the estate left by the
[NOTE: On this point, Justice J.B.L. Reyes opines: “The decedent among themselves as they see fi t. It is
distinction between heir and legatee is not drawn with in effect an extrajudicial settlement between the
precision, and yet the distinction is all-important for Arts. heirs under Rule 74 of the Rules of Court
854 (preterition) and 918 (disinheritance) provide cases
where the institution of heirs is VOID, but the legacies - Sale presumes the existence of a contract or
remain valid. The Code omits to state the fundamental deed of sale between the parties. The second is,
difference: That heirs are instituted to the whole or to an technically speaking, a mode of extinction of
aliquot portion thereof, i.e., to the whole or to a fraction ownership where there is an abdication or
of the whole; while a legatee or devisee is given intentional relinquishment of a known right with
individualized items of property. As noted by Ferrara knowledge of its existence and intention to
(Rev. Der. Priv. 1923), the quality of heir does not depend relinquish it, in favor of other persons who are
on the appellation given by the testator; it does not arise co-heirs in the succession.
“ex voluntate, sed ex re.”)
❖ SITUATION WHERE HEIRS DID NOT INHERIT ANY
PROPERTY RIGHT
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- Where an applicant for homestead did not f. The will is strictly a personal act in all matters
acquire any vested right over the land and fully that are essential
owning it at the time of his death, his HEIRS did
not inherit any property right from him. g. It is effective mortis causa (i.e., it produces
effects only after the death of the testator —
- In one case, failure on the part of the Bureau of hence, the will is termed “ambulatory”). (Art.
Lands to act on the application up to the time of 777).
death of the applicant prevented his heirs to be
subrogated in all his rights and obligations with h. It is essentially revocable or ambulatory. (Art.
respect to the land applied for 828).
i. It is free from vitiated consent, i.e., it must have
been executed freely, knowingly, and
CHAPTER 2: TESTAMENTARY SUCCESSION voluntarily, otherwise it will be disallowed. (Art.
SECTION 1: WILLS 839)
SUBESECTION 1: WILLS IN GENERAL j. It is an individual (as distinguished from a joint)
act (if executed by a Filipino, whether in the
783 Will is an act whereby a person is permitted, Philippines or abroad). (See Arts. 818 and 819).
with the formalities prescribed by law, to
control to a certain degree the disposition of k. It disposes of the testator’s estate (whether
his estate, to take effect after his death. totally or partially) in accordance with his wishes
(“to a certain degree” only, because legitimes
❖ ESSENTIAL ELEMENTS AND CHARACTERISTICS OF A are reserved for compulsory heirs).
WILL
[NOTE: If the will does not dispose of property, such as
a. The making of a will is a statutory (not a natural) when a person is merely named executor, or when a
right. This is evident from the clause “permitted natural child is recognized, while the instrument may in
. . . to control to a certain degree.” The one sense still be called a will, still such will need not be
consequence of this is that the making of a will probated, for under our law, it would seem that a probate
should be considered subordinated to both the is needed only if property is to be conveyed by
law and public policy testamentary succession. (See Art. 838). Furthermore, it
o A will has been defi ned as species of has been held that for the purpose of recognizing a
conveyance whereby a person is natural child by virtue of a will, the will need not be
permitted, with the formalities probated though it must, of course, still be a valid will.]
prescribed by law, to control to a certain [NOTE: While a will is generally an act of liberality, even
degree the disposition of his estate after if certain conditions are stated therein — like the
his death condition to marry a particular person (57 Am. Jur., Sec.
b. It is a unilateral act. (This means that no 7) — still in some instances, a will may be illiberal,
acceptance by the transferees is needed while particularly if the burdens imposed are very onerous.]
the testator is still alive; any acceptance made ❖ DIFFERENCE BETWEEN A “LAST WILL” AND A
prematurely is useless.) “TESTAMENT”
c. It is a solemn or formal act (executed in - While today, common usage notes no difference
accordance with the formalities prescribed by between the two, still under Anglo-American
law). (See Art. 783). law, a “testament” disposes of personal
d. There must be animus testandi (intent to make a property; while a “will” disposes of real property.
will). ❖ PROBLEM
e. The testator must be capacitated to make a will. - In T’s will, A was given a house, effective
(Arts. 796-798). immediately.
a. Is this a disposition by virtue of a will?
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ANS.: No, since it is supposed to take effect immediately. is a strong presumption that the will was
There was, therefore, no animus testandi insofar as this regularly made.
provision is concerned.
785 The duration or effi cacy of the designation of
b. Is A entitled to get the house now? heirs, devisees or legatees, or the
determination of the portions which they are
ANS.: No, unless he signifi es his acceptance, in the form
to take, when referred to by name, cannot be
prescribed by law for donations, and unless the
left to the discretion of a third person.
instrument be notarized as a public instrument. (See Art.
749). ❖ DISCRETION OF A THIRD PERSON
c. How will the house be disposed of? - This provision reinforces the rule that the making
of a will is strictly a personal act. If, for example,
ANS.: In accordance with the rules on legal succession, in
the testator says “I give my land to X for as long
case the donation is not effective. (See Art. 960).
as my friend Y allows,’’ this would be a clear case
❖ ORAL CONVEYANCE of illegal delegation of testamentary power.

- It is not uncommon practice of country folks in 786 The testator may entrust to a third person the
the Philippines to convey their properties to distribution of specifi c property or sums of
their heirs without executing any private or money that he may leave in general to specifi
public document to that effect. The consistent ed classes or causes, and also the designation
jurisprudence in this country, despite express of the persons, institutions or establishments
codal provisions, has recognized oral contracts to which such property or sums of money are
as valid and efficacious to bring about partition to be given or applied. (671a)
of a decedent’s estate among his heirs provided
❖ WHEN A THIRD PERSON MAY BE ENTRUSTED
such partition does not affect the interest of
third persons. - This Article does not really contradict the
preceding one, for in Art. 786 the particular
784 The making of a will is a strictly personal act; it
names are not designated whereas in Art. 785,
cannot be left in whole or in part to the
the names of particular persons are given.
discretion of a third person, or accomplished
Moreover, in Art. 786, a class or a cause is what
through the instrumentality of an agent or
is specified.
attorney
❖ EXAMPLES OF SPECIFIED CLASSES
❖ WILL MAKING IS A STRICTLY PERSONAL ACT
- The high school seniors class in the Poveda
- The mechanical act of drafting may be entrusted
Learning Centre; the first ten topnotchers in the
to another, as long as the disposition itself
bar examinations.
expresses the testator’s desires, and all the
formalities of the law are complied with, such as ❖ EXAMPLES OF SPECIFIED CLAUSES
the signing by the testator and the witnesses (in
the case of a notarial will), or the copying by the - Charitable institutions.
testator in his own handwriting (in the case of NOTE: In these cases, the distribution (partition or
the holographic will). delivery) and the designation of who will receive, and
❖ ADVISABILITY OF EMPLOYING AN ATTORNEY how much (as long as they fall within the class or cause;
and as long as specific property or a sum of money — [say
- In making a will, it is advisable to employ an P5 million] — has been set aside for the purpose) can be
attorney, for if we employ an attorney in so entrusted to a third person.
many cases involving little money, it should be
wiser to employ one when our whole estate is 787 The testator may not make a testamentary
involved. Moreover, if an attorney drafts a will disposition in such manner that another
and is present at the time of its execution, there person has to determine whether or not it is to
be operative. (n)

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❖ NON-DETERMINATION BY A THIRD PERSON clear. The doubt arises only because of things
outside the will.
- This Article strengthens the rule that the making
of a will is strictly a personal act. [NOTE: In a will, this kind of ambiguity arises
- Example: “I institute X as my heir provided that a. when there is an imperfect description of the
my friend, Y will agree.” The institution of X is heir, legatee, or devisee;
void, as well as the participation or delegation of
b. when there is an imperfect description of the gift
Y.
being given;
788 If a testamentary disposition admits of
c. when only one recipient is designated but it turns
different interpretations, in case of doubt, that
out that there are two or more who fit the
interpretation by which the disposition is to be
description)
operative shall be preferred.
2. Patent or Extrinsic Ambiguity — that which
❖ POSSIBLE DIFFERENT INTERPRETATION
appears on the face of the will itself; in other
- This rule is similar to the rule in the words, by examining the provision itself, it is
interpretation of laws or contracts. evident that it — is not clear.

- The reason is that testate succession, provided Example: “I hereby institute some of my seven brothers.”
the will is valid, is preferred to intestacy.
(It is evident here that we do not know how many of the
- The provision applies only in case of DOUBT. If brothers are being instituted.)
no doubt exists, and the disposition is clearly
[NOTE: In this case, extrinsic evidence, as well as the will
illegal, same should not be given effect.
itself may be examined (but not the oral declarations of
❖ THE FIXED LAW INTERPRETATION the testator) to ascertain the testator’s intent, but if after
everything has been done, the doubt still remains, not
- The intention and desires of the testator if one of the seven brothers will get as instituted heirs,
clearly expressed in the will, constitute the fixed because then, the heirs will be considered as unknown
law of its interpretation. persons under Art. 844, 2nd par.].
789 When there is an imperfect description, or ❖ UNDER ART. 789 WHAT KIND OF AMBIGUITY IS
when no person or property exactly answers REFERRED TO?
the description, mistakes and omissions must
be corrected, if the error appears from the - The first clause — refers to a latent or intrinsic
context of the will or from extrinsic evidence, ambiguity — “imperfect description or when no
excluding the oral declarations of the testator person or property exactly answers the
as to his intention; and when an uncertainty description.”
arises upon the face of the will, as to the
o How may this be cured?
application of any of its provisions, the
testator’s intention is to be ascertained from ▪ BY EXAMINING:
the words of the will, taking into consideration
the circumstances under which it was made, • the will itself
excluding such oral declarations. • extrinsic evidence such
❖ KINDS OF AMIGUITY IN A WILL as written declarations
Of the testator
1. Latent or Intrinsic Ambiguity — that which does
not appear on the face of the will, and is (NOTE — extrinsic evidence taken from the alleged ORAL
discovered only by extrinsic evidence. Example: declarations of the testator should NOT be allowed, as
“I institute my brother-inlaw” (when it is this can result in fraud, confusion, and unfairness to the
discovered that I have two brothers-inlaw). This dead man whose words may be distorted or perjured.).
ambiguity is not found in the will itself, which is

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- The second clause — refers to a patent or 2. If it appears that the will was drafted
extrinsic ambiguity — “when an uncertainty by the testator alone, who did not
arises upon the face of the will.” know the technical meaning.
o How may this be cured? (Reason: Wills drafted by experts like lawyer are
construed more strictly than those made by ordinay
▪ ANS.: Same as what was stated laymen)
for curing a latent ambiguity.
NOTE: An idiomatic translation is preferred to a literal
[NOTE: This is because the law allows us to get the translation since the former expresses more clearly the
intention from: testator’s desires
1. the words of the will If the testator’s intention is manifest from the context of
2. the circumstances under which the will was the will and surrounding circumstances, but is obscured
made (clearly allowing extrinsic evidence also, by inapt and inaccurate modes of expression, the
like written declarations of the testator, but language will be subordinated to the intention; and in
clearly disallowing oral declarations of the order to give effect to such intent, the court may depart
testator).]. from the strict wording, and read a word or phrase in a
sense different from that which is ordinarily attributed to
[NOTE: It is submitted, therefore, that construing the law it, and for such purpose may mould or change the
as written, it would seem that the new Civil Code really language of the will, such as by restricting its application
provides for no difference in the curing of latent or patent or supplying omitted words or phrases.
ambiguities although the rule in some Anglo-Saxon
countries is different on said point.] 791 The words of a will are to receive an
interpretation which will give to every
790 The words of a will are to be taken in their expression some effect, rather than one which
ordinary and grammatical sense, unless a clear will render any of the expressions inoperative;
intention to use them in another sense can be and of two modes of interpreting a will, that is
gathered, and that other can be ascertained. to be preferred which will prevent intestacy.
Technical words in a will are to be taken in their (n)
technical sense, unless the context clearly ❖ INTERPRETATION AS A WHOLE
indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn - The will must be interpreted as a whole.
solely by the testator, and that he was
- While testacy is preferred over intestacy, this is
unacquainted with such technical sense.
true only if the will has been validly made
(675a)
❖ PRIORITY OR PREFERENCE OF TESTATE OVER
❖ RULES FOR INTERPRETATION OF WORDS INTESTATE PROCEEDINGS
1. Ordinary words have their ordinary meanings. - Testate proceedings take precedence over
EXCEPTION — If there is a clear intention that intestate proceedings for the same purpose.
another meaning was used — provided that
other meaning can be determined. (Reason for - If in the course of intestate proceedings pending
exception: The supreme law for interpretation is before the CFI (now RTC) it is found that the
INTENTION). decedent left a will, proceedings for the probate
of the will should replace the intestate
2. Technical words have technical meanings. proceedings (in the same court), even if at that
(Example — “natural child” means that kind stage, an administrator had already been
defined in the law of PERSONS.). appointed, the latter being required to render
a. EXCEPTIONS: his fi nal accounts and to turn over the estate to
the executor subsequently named. This is
1. If there is a contrary intention without prejudice to the fact that if, the will be

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disallowed, the intestate proceedings should be Example: In 2003, T made a will “giving X all my
resumed. automobiles.” At that time he had 5. In 2005, T made a
codicil, disposing of certain other properties in favor of
792 The invalidity of one of several dispositions another. One effect of the codicil is that the will must be
contained in a will does not result in the construed, for this purpose, as having been made in
invalidity of the other dispositions, unless it is 2005. If in 2005, T had 8 automobiles, and in 2007 when
to be presumed that the testator would not he died, he had 12 automobiles, how many will X inherit?
have made such other dispositions if the first
invalid disposition had not been made. ANS: X will get 8 automobiles because it is as if the will
was made in 2007. This is so even if the will had really
❖ EFFECT OF INVALID DISPOSITIONS been made in 2003, when he had only 5 automobiles.
- Even if one disposition or provision is invalid, it However, the other 3 automobiles acquired after the
does not necessarily follow that all the others are republication will not be given unless again the contrary
also invalid. intention had been expressed.

- The exception occurs when the various d. If at the time the testator made the will he
dispositions are indivisible in intent or nature erroneously thought that he owned certain
properties, the gift of said properties will not
793 Property acquired after the making of a will be valid, unless after making the will, said
shall only pass thereby, as if the testator had properties will belong to him. (See Art. 930).
possessed it at the time of making the will,
should it expressly appear by the will that such Example: In 2003, T made a will “giving X my 5
was his intention. automobiles.” However, at that time, one of the
automobiles was not really his. Therefore, ordinarily, X
❖ GENERAL RULE RESPECTING AFTER ACQUIRED should get only 4 at the time T dies. But if after making
PROPERTIES the will T becomes the owner of the 5th automobile, and
at T’s death, he was owner of the 5 automobiles, all of
- What are given by the will are only those
said 5 automobiles will be given to X.
properties already possessed and owned by the
testator at the time the will was made, not those e. Legacies of credit or remission are effective
acquired after (“after-acquired property”). only as regards that part of the credit or debt
existing at the time of the death of the
- Example: In 2003, T made a will “giving X all my
testator. (Art. 935, par. 1).
automobiles.” In 2003, T had 5 automobiles; but
in 2005, when T died, he had at the time of his Examples:
death 8 automobiles. How many will X get?
1. Legacy of a credit
o ANS.: X will get only 5 automobiles,
because the rest were acquired after the T is the creditor of D to the amount of P1,000,000. T
making of the will. made a will in 2003 giving this credit to X. If by 2006, at
T’s death D has paid already
- Exceptions (Here, the after-acquired properties
are also given to the persons designated in the P600,000 to T, how much will X get?
will.) ANS.: Only the remaining P400,000, which still exists at
a. If it expressly appears in the will that it was T’s death.
the intention to give such “after-acquired” [NOTE: If upon the other hand, D borrowed P600,000
properties. more instead of paying, how much will X get, P1,600,000
b. If the will is republished or modified by a which represents the total credit, or only P1,000,000
subsequent will or codicil (in which case, the which represents the credit originally existing at the time
properties owned at the time of such the will was made?
republication or modifi cation shall be ANS.: Only the original P1,000,000, since the extra
given). (Art. 836) P600,000 will be “after-acquired property.” It is clear that

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 SUCCESSION | LDCS

Art. 935 cannot apply because said article contemplates a will, but to the legal or intestate heirs
a credit that is reduced, not increased.]. and relatives.
[NOTE: It is understood, of course, that the legacy - It would seem wise, therefore, to apply the
includes all interests on the credit or debt which may be Article only to legatees and devisees. It would
due the testator at the time of his death.] even be better to eliminate the Article
altogether; and instead substitute one which will
2. Legacy of Remission pass all the property existing at the time of
T is the creditor of D to the amount of P1,000,000. T death, unless a contrary intention has been
made a will in 2002 remitting or waiving D’s debt. This is expressed. This, it is believed, would better
a legacy of a remission of a debt, in favor, naturally, of express the testator’s presumed intention
the debtor. If in 2004, D who does not know of the Note carefully the difference between “after-acquired”
provision in the will, (and even if he does know) pays property (that acquired between the time of making the
P600,000 to T, how much is the legacy of remission if T will and the testator’s death) and the property “accruing
subsequently dies? since the opening of the succession” (or the property
ANS.: Only P400,000 because this is the debt still added after death referred to under Art. 781).
remaining at the time of T’s death, including interests
794 Every devise or legacy shall convey all the
due, if any, of course.
interest which the testator could devise or
[NOTE: It is important to know how much exactly is the bequeath in the property disposed of, unless it
legacy, in order to determine whether or not it is inoffi clearly appears from the will that he intended
cious or impairs the legitime.]. to convey a less interest. (n)

❖ QUERY ❖ GENERAL RULE AS TO WHAT INTEREST MAY BE

DISPOSED OF
- Does Art. 793 apply if an heir (as distinguished
from a mere legatee or devisee) is instituted? In - The entire interest of the testator in the property
other words, if in 2003, T makes a will “instituting is given — not more, not less.
X as my heir” and T dies in 2003, will X get only
- Examples: The owner of a house who devises the
the properties owned in 2003 or should the
same transfers ownership over the entire house;
inheritance include those properties acquired
if he were a mere co-owner or a usufructuary, he
between 2003 and 2005?
conveys his share in the coownership, or his
o ANS.: Strictly speaking since the law usufructuary right, no more, no less.
makes no distinction, Art. 793 should
- Exceptions
also apply to this case. Therefore, X will
get only the properties owned in 2003. a. He can convey a lesser interest if such intent
The “after-acquired” properties will clearly appears in the will. (Art. 794).
have to go to the legal heirs by intestate
succession. Example: The owner in his will states “I hereby give to X
the usufruct of my house.”
o Yet, this would seem to destroy the
testator’s intent, and if thus applied, the b. He can convey a greater interest, thus, the
rule would apply not only to properties law provides “If the testator … owns only a
and rights, but also to transmissible part of, or an interest in the thing
obligations, thus rending as under the bequeathed, the legacy or devise shall be
basic philosophy behind the “institution understood limited to such part or interest,
of heirs.” UNLESS the testator expressly declares that
he gives the thing in its entirety.” (Art. 929).
o Moreover, the Article was taken from
Sec. 615, Act 190 (The Code of Civil [NOTE: This can be done thru the purchase by the testator
Procedure), and under said Act the word or his executor or administrator of the extra interest or
“heir” did not apply to one instituted in

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 SUCCESSION | LDCS

by giving its equivalent value to the legatee or devisee. 1. From the viewpoint of TIME — what must be
(See Art. 931).]. observed is the law in force at the time the
will is MADE (executed). (Art. 795).
c. He can even convey property which he very
well know does not belong to him (See Arts. 2. From the viewpoint of PLACE or COUNTRY —
930 and 931), provided that it also does not what law must be observed depends:
belong to the legatee or devisee. (See Art.
937). a. If the testator is a Filipino, he can
observe Philippine laws (Arts. 804-814);
Art. 931 provides: “If the testator orders that a thing or those in the country where “he may
belonging to another be acquired in order that it be given be” (Art. 815); or those in the country
to a legatee or devisee, the heir upon whom the where he executes the will (Art. 17) (lex
obligation is imposed or the estate must acquire it and loci celebrationis or locus regit actum).
give the same to the legatee or devisee; but if the owner
of the thing refuses to alienate the same or demands an b. If the testator is an alien who is abroad,
excessive price therefor, the heirs or the estate shall only he can follow the law of his domicile, or
be obliged to give the just value of the thing.” his nationality or Philippine laws (Art.
816) or where he executes the will. (Art.
[NOTE: If the testator thought the property was his, 17).
although it is not really his, the legacy or devise is void,
unless the property subsequently becomes his. (See Art. c. If the testator is an alien in the
930).]. Philippines, he can follow the law of his
nationality (Art. 817) or the laws of the
795 The validity of a will as to its form depends Philippines, since he executes the will
upon the observance of the law in force at the here. (Art. 17).
time it is made. (n)
- INTRINSIC VALDITY
❖ KINDS OF VALIDITY WITH RESPECT TO WILLS
1. From the viewpoint of TIME — successional
1. extrinsic validity rights are governed by the law in force at the
time of the DECEDENT’S DEATH. (See Art.
2. intrinsic validity 2263).
[NOTE: 2. From the viewpoint of PLACE or COUNTRY —
a. Extrinsic validity refers to the forms and the national law of the decedent, that is, the
solemnities needed. (Examples: the number of law of his country or nationality (Art. 16) —
witnesses to a will; the kind of instrument — regardless of the place of execution or the
whether public or private — that is needed). place of death. Thus, a proviso in the will of
Extrinsic validity may be seen also from two an alien to the effect that his properties
viewpoints, the viewpoint of TIME and the should be distributed in accordance with
viewpoint of PLACE (or country). internal Philippine law, and not in
accordance with his own national law, is void
b. Intrinsic validity — refers to the legality of the because said proviso contravenes Art. 16,
provisions in an instrument, contract or will. par. 2 of the Civil Code.
(Examples: whether or not the omission of a child
in the will renders the whole will void; whether or o However, if the conflict rules under the
not a [disposition in favor of a friend impairs the national law of the deceased refer the
legitime; whether or not a compulsory heir has matter to the law of the domicile and the
been given his rightful share]. Intrinsic validity foreigner was domiciled in the
may also be viewed from the viewpoint of TIME Philippines at the moment of death, our
and the viewpoint of PLACE.). courts will have to apply the Philippine
internal law on succession. (This is an
❖ GENERAL RULES ON VALIDITY instance where we ACCEPT THE RENVOI
- EXTRINSIC VALIDITY
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 SUCCESSION | LDCS

which is the referring back to the forum b. soundness of mind at the time the will is made.
of the problem.)
3. A convict under civil interdiction is allowed to
❖ PARTICULAR USE OF 795 make a will. This is because civil interdiction
prohibits a disposition of property inter vivos,
- As has been seen, Art. 795 refers to extrinsic not mortis causa. (Art. 34, Revised Penal Code).
validity from the viewpoint of time. Said
provision “is the same principle enunciated by 4. Since the law does not disqualify them, it is
our Supreme Court in the cases of Bona v. believed that spendthrifts or prodigals, even if
Briones under guardianship, can make a will provided
they are at least 18 years old and are of sound
- The Legislature cannot validate a will void at the mind.
time it was made by changing the formalities
required 5. Art. 796 refers to “all persons,’’ but this should
be understood to refer only to natural persons,
o This is because if it were otherwise, the not juridical ones, like corporations. This is
testator would be deprived of property evident from the requirement of soundness of
without due process of law. (See mind.
Thompson, pp. 53-64). However, said
rule applies only to formal or extrinsic 6. Capacity to make a will is called
validity. Change in successional rights or “testamentifaccion active,’’ whereas capacity to
intrinsic validity may be done even after inherit or to receive by will is “testamentifaccion
the will is made, as long as the testator passive
is still alive.
797 Persons of either sex under eighteen years of
▪ This is because until death age cannot make a will.
comes, no right has become
vested as yet, the right to the ❖ AGE REQUIREMENT – 18
property accruing only at the 1. Under Spanish Law, a person should have passed
moment of death (Art. 777). his 18th birthday before he can make a will. (6
❖ REASON FOR ART. 795 Sanchez Roman 212). Under American Law, he
can make a will on the day just before his 18th
- A testator cannot be expected to know the birthday, on the ground that by that time, 18
future, hence, it is enough that he follows the years shall have passed. (See Gardner, p. 86).
law in force at the time he makes the will Obviously, we follow the Spanish concept.
❖ “RECOGNITION” IS OF TWO KINDS 2. The age of 18 has been fi xed for at this age, an
individual is generally no longer subject to fraud,
1. Compulsory
influence, or insidious machinations.
2. Voluntary
3. An individual, though a minor, may thus still
❖ ILLUSTRATION OF ART. 795 (BAR QUESTION) make a will, and the consent of his parents is not
required. Upon the other hand, if he be less than
- Refer to cases provided in the book. 18, his will should be considered void (not
796 All persons who are not expressly prohibited merely voidable), and this is true whether or not
by law may make a will parental consent had been obtained.

❖ WHO CAN MAKE WILLS 4. According to a member of the Code Commission,

the computation of the age 18 may even be to
1. The general rule is CAPACITY. It is incapacity that the very hour of birth. (Capistrano, II Civil Code
is the exception. 179). It is believed that this would be too strict
inasmuch as the law does not recognize the
2. Two general qualifications:
fractions of a day
a. 18 years old or over;
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 SUCCESSION | LDCS

798 In order to make a will it is essential that the d. insane delusions — belief in things which no
testator be of sound mind at the time of its rational mind would believe to exist.
execution
e. drunkenness if this results in failure to know the
❖ SOUNDNESS OF MIND nature of the testamentary act

- It should be observed that the soundness of f. idiocy — congenital intellectual deficiency

mind must exist at the time of the execution of
g. a comatose stage, resulting from hypertension
the will, not before nor after.
and cerebral thrombosis, and preventing the
799 To be of sound mind, it is not necessary that testator from talking or understanding.
the testator be in full possession of all his
h. state of delirium
reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by 800 The law presumes that every person is of
disease, injury or other cause. sound mind, in the absence of proof to the
contrary.
It shall be sufficient if the testator was able at
the time of making the will to know the nature The burden of proof that the testator was
of the estate to be disposed of, the proper not of sound mind at the time of making his
objects of his bounty, and the character of the dispositions is on the person who opposes
testamentary act the probate of the will; but if the testator,
one
❖ REQUISITES FOR SOUNDNESS OF MIND
month, or less, before making his will was
a. that testator knows the nature of the estate to
publicly known to be insane, the person
be disposed of (character, ownership of what he
who maintains the validity of the will must
is giving)
prove that the testator made it during a
b. that testator knows the proper objects of his lucid interval.
bounty (by persons who for some reason expect
❖ PRESUMPTION OF SOUNDESS OF MIND
to inherit something from him — like his
children) - Sanity is the general rule; insanity is the
exception hence, as a rule, he who alleges the
c. that testator knows the character of the
testator’s insanity must prove the same.
testamentary act (that it is really a will, that it is
a disposition mortis causa, that it is essentially ❖ INSTANCES THE TESTATOR IS PRESUMED SANE
revocable
a. If the testator, one month or less before making
❖ SENILITY the will was publicly known to be insane (here,
the person — proponent — who maintains the
- Senility (infi rmity of old age) should be
will’s validity must prove that the will was made
distinguished from “senile dementia” (decay of
during a lucid interval).
mental faculties). The latter, when advanced or
absolute, may produce unsoundness of mind b. If the testator made the will after he had been
resulting in testamentary incapacity judicially declared insane, and before such
judicial order had been set aside.
❖ HOW UNSOUNDNESS OF MIND IS MANIFESTED
❖ ABSENCE OF PRESUMPTION
a. religious delusion resulting in the unsettling of
judgment. - No presumption of insanity arises from:
b. blind extraordinary belief in spirits while a. The presence of a mere delirium, since this is
executing a will. temporary nor from intoxication, for the
same reason.
c. monomania (insanity on a single subject) — if
this happens to be on the subject of wills or
succession.
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 SUCCESSION | LDCS

b. The insanity of the parents and children of 2. The law says that the wife can dispose of her
the testator. share of the conjugal property. Suppose she
disposes of, say, the conjugal house, how will this
❖ EVIDENCE OF SOUNDNESS OF MIND affect the inheritance?
- The attesting or subscribing witnesses’ ANS.: It depends. Ordinarily, the heir gets only half of the
testimony as to the mental condition of the house, but if in the liquidation proceedings the house is
testator should be given great weight and should awarded entirely to the wife’s estate (the husband
prevail over that given by a non-attending receiving some other property, like cash), the heir gets
physician who merely speculates the whole house.
801 Supervening incapacity does not invalidate 3. It is understood that the married woman must
an effective will, nor is the will of an respect the legitime of her compulsory heirs.
incapable validated by the supervening of
capacity SUBSECTION 3 – FORM OF WILLS

❖ EXAMPLE ❖ KIND OF WILLS ALLOWED UNDER THE NEW CIVIL

CODE
- When insane, T made a will. Later, he became
well, but he did not change the will. Is the will a. Ordinary or notarial will — that which requires,
valid? among other things, an attestation clause, and
acknowledgment before a notary public.
ANS.: No, because his becoming capacitated later on is
no important. What is important is that his mind was not b. Holograph or holographic will — the most
sound at the time he executed the will. important feature of which is its being written
entirely, from the date to the signature, in the
802 A married woman may make a will without handwriting of the testator. Here, neither an
the consent of her husband, and without attestation clause nor an acknowledgment
the authority of the court before a notary public is needed.
❖ CAPACITY OF WIFE TO MAKE A WILL [NOTE: Our new Civil Code does not recognize the validity
- The Article is to be applied only if the married of nuncupative wills — wills orally made by the testator
woman is at least 18 years old, and is of sound in contemplation of death, and before competent
mind at the time of execution. witnesses.].

o Thus, if a 17-year-old wife makes a will, ❖ LIBERALIZATION IN THE FORMALITIES REQUIRED

same will be null and void, even if the - According to the Code Commission, “the
husband consents underlying and fundamental objective
o This discussion is without prejudice to permeating the provisions on the law on wills in
“contractual succession” in a marriage this Project consists in the liberalization of the
settlement between the future spouses. manner of their execution with the end in view
of giving the testator more freedom in
803 A married woman may dispose by will of all expressing his last wishes but with sufficient
her separate property as well as her share safeguards and restrictions to prevent the
of the conjugal partnership or absolute commission of fraud and the exercise of undue
community property. and improper pressure and influence upon the
testator. This objective is in accord with the
❖ WHAT WIFE CAN DISPOSE OF IN HER WILL modern tendency in respect to the formalities in
1. The wife cannot dispose of her husband’s the execution of wills
capital, in her will, unless she knows that the
804 Every will must be in writing and executed in a
same is not hers, and intends that her
language or dialect known to the testator
administrator or executor will purchase the
same from her husband, for distribution to the ❖ WRITTEN WILLS
heirs. (See Arts. 930 and 931).
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 SUCCESSION | LDCS

- Article 804 does not recognize oral wills a. A method is used to identify the party sought
to be bound and to indicate said party’s
❖ HANDWRITING AND HANDWRITING
access to the e-document necessary for his
EXPERTS’EXPLAINED consent or approval thru the e-signature;
- The “handwriting” of a person may be proved by b. Said method is reliable and appropriate for
any witness who believes it to be the the purpose for which the e-document was
handwriting of such person because he has seen generated or communicated in light of all
the person write, or has seen writing purporting circumstances, including any relevant
to be his upon which the witness has acted or agreement;
been charged, and has, thus, acquired
knowledge of the handwriting of such person c. It is necessary for the party sought to be
bound in order to proceed further with the
- Handwriting experts” are usually helpful in the transaction, to have executed or provided
examination of forged documents, but resort to the e-signature; and
these experts is not mandatory or indispensable
to the examination or the comparison of d. The other party is authorized and enabled to
handwriting, and because the judge must verify the e-signature and to make the
conduct an independent examination of the decision to proceed with the transaction
questioned signature in order to arrive at a authenticated by the same.” (Sec. 8, id.).
reasonable conclusion as to its authenticity
[NOTE: An e-signature is NOT A HANDWRITTEN
- The opinions of handwriting experts, athough SIGNATURE that is scanned or graphically imprinted on
helpful in the examination of forged documents the e-document.]
because of the technical procedure involved in
the analysis, are not binding upon the courts. [NOTE further that in the Supreme Court Resolution re
Resort to these experts is not mandatory or Rules on Electronic Evidence, an authenticated e-
indispensable to the examination or the signature or a digital signature (also authenticated is
comparison of handwriting admissible in evidence as the functional equivalent of the
signature of a person on a written document. (Rule 6,
❖ A RARE THING Secs. 1 and 2, id.).]
- It is an accepted fact that it is very rare that two 805 Art. 805. Every will, other than a holographic
(2) specimens of a person’s signature are exactly will, must be subscribed at the end thereof by
alike. the testator himself or by the testator’s name
written by some other person in his presence,
❖ ELECTRONIC COMMERCE
and by his express direction, and attested and
- Suffi ce it to say, from all appearances, it would subscribed by three or more credible witnesses
seem that any contractual agreement entered in the presence of the testator and of one
into may be deemed valid and enforceable even another.
if it is in the form of an e-document EXCEPT IN
The testator or the person requested by him to
THE EXECUTION OF A WILL
write his name and the instrumental witnesses
- There is that other point apropos to of the will, shall also sign, as aforesaid, each
electronic/digital signature. As laid down by the and every page thereof, except the last, on the
ECA, “[a]n electronic signature on the e- left margin, and all the pages shall be
document shall be equivalent to the signature of numbered correlatively in letters placed on the
a person on a written document if the signature upper part of each page.
is an e-signature and proved by showing that a
The attestation shall state the number of pages
prescribed procedure, not alternable by the
used upon which the will is written, and the
parties interested in the e-document, existed
fact that the testator signed the will and every
under which —
page thereof, or caused some other person to
write his name, under his express direction, in

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 SUCCESSION | LDCS

the presence of the instrumental witnesses, dialect in said locality. (Abangan v. Abangan, 42
and that the latter witnessed and signed the Phil. 476).
will and all the pages thereof in the presence
- Naturally, it is useless to avail of this
of the testator and of one another.
presumption if the will is notwritten in the
If the attestation clause is in a language not dialect of the locality. Moreover, the
known to the witnesses, it shall be interpreted presumptionis only prima facie, and therefore,
to them. the contrary may be proved.

❖ WHAT ART 805 PROVIDES - Thus, it may be shown, for example, by proof in
court that the testator was really ignorant of the
- Art. 805 of the new Civil Code particularly language of the community or locality, or of the
segregates the requirement that the language in which the will had been written
instrumental witnesses sign each page of the
will, from the requisite that the will be “attested - The fact that the testator knew the will’s
and subscribed by [the instrumental witnesses]” language need not appear on the face of the will.
–– the respective intents behind these two Extrinsic evidence is allowed to prove this.
classes of signature are distinct from each other.
- Where the formal requisites for the validity of
Even if instrumental witnesses signed the
the will have been satisfactorily established,
lefthand margin of the page containing the
except the language requirement, the parties
unsigned clause, such signatures cannot
should be afforded, in the interest of justice, an
demonstrate these witnesses‘ undertakings in
opportunity to present evidence, if they so
the clause, since the signatures that do appear
desire, on this controverted issue.
on the page were directed towards a wholly-
different crowd 3. The will must be subscribed (signed) at the end
thereof by the testator himself or by the
- It is the attestation clause which contains the
testator’s name written by another person in his
utterances reduced into writing of the
presence, and by his express direction.
testamentary witnesses themselves –– it is the
witnesses, and not the testator, who are [NOTE:
required under Art. 805 of the new Civil Code to
state the number of pages used upon which the a. If the will is not signed at the END but
will was written somewhere else, the will is NOT VALID.

❖ REQUIREMENTS TO A NOTARIAL OR RODINARY b. So important is this requirement that if after the

WILL signature there are additional clauses or
provisions, not only should those clauses be
- Aside from the fundamental requisites that the considered void, but also the WHOLE WILL from
testator be at least 18 years old, and possessed beginning to end, and will, therefore, be denied
of a sound mind: probate (Please observe that Sec. 618 of the
Code of Civil Procedure, as amended by Act
1. The will must be in WRITING (handwritten,
2645, did not specify where the testator’s
typed, or printed; material on which it is written
signature should be placed; in the new Civil
is immaterial).
Code, the law expressly requires that it be placed
[Note that the validity of a will is not affected by its at the end of the will.).
having been written on poor stationery, or its non-
c. “END” of the will — means the LOGICAL, not the
preparation by an attorney or the absence of copies.].
physical end of the will. Thus, if a will starts on
2. The will must be executed in a language or the 1st page, continues on the 3rd page, but is
dialect known to the testator. concluded on the 2nd page the end of the 2nd
page is the logical end.
- If the testator resides in a certain locality, it can
be presumed that he knows the language or d. If the testator’s first name appears, without the
surname, the will is valid

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 SUCCESSION | LDCS

e. If the testator’s name is misspelled, abbreviated, puts down his own name, and omits that of the
or by nickname, or by “Father” or “Mother,” or testator, this would be a substantial violation of
in an assumed name, this is all right provided the the law and would render the will invalid
testator intended same to be his signature. This
is true even in the case of a will signed by the l. If the person who signs the name of the testator
testatrix after her second marriage in the name is one of the subscribing witnesses, this is all
she had borne under her former marriage. right.

f. A testator can sign with his thumbmark or with m. The delegate must sign in the TESTATOR’S
his initials , or even with a rubber stamp or an PRESENCE [this does not necessarily mean that
engraved dye, provided he intends the same to the testator must actually see the signing; it is
be his signature. Even if the testator’s hand is enough that he could have done so, or felt it —
guided by another when the signing or marking (as when he is blind) — without any physical
is made, the signing will still be valid, and will be obstruction, had he wanted to].
considered as having been done by the testator n. “Express direction” — means that the delegate
himself. must be expressly authorized to do so. Hence,
g. A testator can sign with a mere cross if he mere knowledge on his part that the will is being
intends that to be his signature but when signed in his behalf or his acquiescence to such
SOMEBODY ELSE writes the testator’s name for an act is NOT suffi cient. However, an express
him, the mere placing by the testator of a cross direction may be given by the testator even
after his name, without there being in the will a without using words — mere clear gestures or
statement that somebody had signed for the motions or conduct is sufficient. Thus, in one
testator, is NOT SUFFICIENT, and the will is case, when a witness asked the testatrix if he
considered void, not because of the cross, but should sign for her, and she answered “Yes” or
because of failure to state the signing of name by nodded her head, it was held that there was
somebody else. The Court in the La Cuesta case express authorization.
said it would have been different had it been 4. The will must be attested and subscribed by
proved that the cross was the usual signature of three or more credible witnesses in the presence
the testator, or was even one of the ways by of the testator and of one another
which he signed his name. If this were so, failure
to state the writing by somebody else would [NOTE:
have been immaterial, since he would be a. This requirement is aside from the other
considered to have signed the will himself requirement that there must be an attestation
h. Even if a person knows how to write his name, clause, because this requires an ATTESTING.
he can still sign by the use of a mark. Aside from the ATTESTING itself, there must be
PROOF of such attesting, and this proof is what
i. Somebody else may write the TESTATOR’S NAME we call the Attestation Clause. (This will be
for the latter, provided this is done in the latter’s discussed later.)
presence and at the latter’s express direction.
(Art. 806). The person writing for the testator b. “In the presence” does not necessarily require
should NOT be one of the 3 witnesses. Of course, actually seeing, but possibility of seeing without
if there be more than 3 witnesses, one of them any physical obstruction. Hence, when a person
may sign for the testator. merely has his back turned, the signing is done in
his presence since he could have cast his eyes in
j. The signing by another may be done as follows: the proper direction. Upon the other hand, if
“For the testator, Mr. Ty by Miss Ty,’’ or “Mr. Ty, there is a curtain separating the testator and
by Miss Ty.’’ some witnesses — from the other witness —
k. As a matter of fact, the person signing for the there would be a physical obstruction, and the
testator does not even have to put his own will cannot be valid. In case a testator is blind,
name. All the law requires is that he puts the the “presence” may be complied with if the
name of the testator. Upon the other hand, if he signing or action is within the range of the OTHER
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 SUCCESSION | LDCS

senses like hearing, touch, etc., of the testator. are needed since these would be purposeless as
What is important is that he realizes whatis being the page already has, at the end thereof, all the
done. An authority has referred to this as the necessary signatures.
TEST of “AVAILABLE SENSES.” (See Page on
Wills). e. Whenever the marginal signatures are required,
although the law says “left margin,” the purpose
c. Purpose of requiring “presence”: to avoid is served if they are on the “right, top, or bottom
fraudulent substitution of the will; and to make margin,” for the only purpose is to identify the
more difficult the invention of false testimony by pages used, and thus prevent fraud.
the witnesses, since they may be the witnesses
of one another. f. Failure to have the marginal signatures of the
testator and of the witnesses, when needed, is a
d. It is important that the testator signs in the FATAL defect. Thus, even if the second page
presence of the witnesses, hence, if he brings to bears the signature or thumbmark, as the case
their attention a document purportedly to be a may be, of the testator, but absent on said first
will but already previously signed, the page, the will cannot be admitted to probate.]
requirements of the law have not been complied
with. However, as long as the signing is done g. A credible witness is one possessed of the
within the presence of one another, it really does qualifications imposed by law. He must be able
not matter much whether the witnesses signed or competent to testify. At the probate,
ahead of or after the testator — as testator — as however, the testimony of the witnesses need
long as the signing is sufficiently not be a detailed or accurate account of the
contemporaneous. In either case, the will is proceedings (one, for instance, which would
valid. recall the exact order for the signing of the
document by the witnesses).
[NOTE: As will be seen later on, while the attesting must
be done in the presence of all, the act of acknowledging h. The witness can sign with a cross or mark,
before the notary public does not have to be provided that such is the usual signature, and
contemporaneous. It does not even have to be done in provided further, that he really knows how to
the presence of all of them, since the law does not read and write. Otherwise, he cannot of course
mention this as a requirement; neither does the law be a witness.
require that execution and acknowledgment of a will be 6. All the pages shall be numbered correlatively in
made on the same day.]. letters placed on the upper part of each page.
5. The testator or the person requested by him to [NOTE:
write his name, and the instrumental witnesses
of the will shall sign each and every page thereof 1. Purpose: to guard against fraud, and to afford
except the last, on the left margin means of preventing substitution or of detecting
the loss of any of its pages.
[NOTE:
2. Correlative numbering in letter — means “One,”
a. The law says “page” not sheet. (A sheet has two “Two,” “Three,” etc. BUT “A,” “B,” “C,” would be
pages, the front and reverse sides; if both are suffi cient (Ibid.), or “Page 1,” “Page 2,” “Page
used, both must be paged). 3,”, or even plain “1,” “2,” or “3,” since this
b. The last page need not be signed on the margin, would amount to substantial compliance with
the law. As a matter of fact, it has been held that
since the signatures already appear at the end.
(It is wrong to say that the last page needs no “the omission to put a page number on a sheet if
signature at all.). that be necessary, may be supplied by other
forms of identification more trustworthy than
c. If the last page contains ONLY the attestation the conventional numeral words or characters
clause, the testator need not sign on the margin
3. It is not necessary to number the first page nor
d. If the whole will including the attestation clause, even the last page as long as, for example, said
consists of only one page, no marginal signatures page, in its attestation clause states that “the will
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 SUCCESSION | LDCS

consists of three pages, besides this one” for f. Failure to have the marginal signatures of the
here, it is evident that the last page is really the testator and of the witnesses, when needed, is a
fourth page. This is true also even if there is no FATAL defect. Thus, even if the second page
reference to “besides,” if the last page contains bears the signature or thumbmark, as the case
solely the attestation clause. may be, of the testator, but absent on said first
page, the will cannot be admitted to probate.
4. It is important that the testator signs in the
presence of the witnesses, hence, if he brings to g. A credible witness is one possessed of the
their attention a document purportedly to be a qualifications imposed by law. He must be able
will but already previously signed, the or competent to testify. At the probate,
requirements of the law have not been complied however, the testimony of the witnesses need
with. However, as long as the signing is done not be a detailed or accurate account of the
within the presence of one another, it really does proceedings
not matter much whether the witnesses signed
ahead of or after the testator — as testator — as h. The witness can sign with a cross or a mark,
long as the signing is sufficiently provided that such is the usual signature, and
contemporaneous. In either case, the will is valid provided further, that he really knows how to
read and write. Otherwise, he cannot of course
[NOTE: As will be seen later on, while the attesting must be a witness
be done in the presence of all, the act of acknowledging
before the notary public does not have to be 6. All the pages shall be numbered correlatively in
contemporaneous. It does not even have to be done in letters placed on the upper part of each page
the presence of all of them, since the law does not [NOTE:
mention this as a requirement; neither does the law
require that execution and acknowledgment of a will be a. Purpose: to guard against fraud, and to afford
made on the same day.] means of preventing substitution or of detecting
the loss of any of its pages.
5. The testator or the person requested by him to
write his name, and the instrumental witnesses b. Correlative numbering in letter — means “One,
of the will shall sign each and every page thereof “Two,” “Three,” etc., BUT “A,” “B,” “C,” would be
except the last, on the left margin. suffi cient (Ibid.), or “Page 1,” “Page 2,” “Page 3,”
(Nayue v. Mojal and Aguilar, 47 Phil. 152), or
[NOTE: even plain “1,” “2,” or “3,” since this would
a. The law says “page” not sheet. (A sheet has two amount to substantial compliance with the law.
pages, the front and reverse sides; if both are As a matter of fact, it has been held that “the
used, both must be paged omission to put a page number on a sheet if that
be necessary, may be supplied by other forms of
b. The last page need not be signed on the margin, identification more trustworthy than the
since the signatures already appear at the end. conventional numeral words or characters
c. If the last page contains ONLY the attestation c. It is not necessary to number the first page nor
clause, the testator need not sign on the margin. even the last page as long as, for example, said
page, in its attestation clause states that “the will
d. If the whole will including the attestation clause, consists of three pages, besides this one” for
consists of only one page, no marginal signatures here, it is evident that the last page is really the
are needed since these would be purposeless as
fourth page. This is true also even if there is no
the page already has, at the end thereof, all the reference to “besides,” if the last page contains
necessary signatures. solely the attestation clause
e. Whenever the marginal signatures are required, 7. The attestation (attestation clause) shall
although the law says “left margin,” the purpose provide:
is served if they are on the “right, top, or bottom
margin,” for the only purpose is to identify the a. the number of pages used — upon which the will
pages used, and thus prevent fraud. is written;
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 SUCCESSION | LDCS

b. that the testator signed (or expressly caused f. While the testator is required to know the
another person to sign) the will and every page language of the will, the witnesses are not
thereof in the presence of the instrumental required to know the language of the attestation
witnesses; clause. It is sufficient that it be translated to
them
c. that the instrumental witnesses witnessed and
signed the will and all the pages thereof in the g. Purposes of the attestation clause
presence of the testator and of one another
1) To preserve in permanent form a record of
[NOTE: the facts attending the execution of the will
so that in case of failure of the memory of
a. Example of a very simple attestation clause — the subscribing witnesses, or any other
“This Will consisting of one page was signed by casualty, they may still be proved.
the testator and by all of us in the presence of all
of us and the testator. 2) To render available proof that there has
been a compliance with the statutory
(Sgd.) A requisites for the execution of the will.
(Sgd.) B 3) And, incidentally, to minimize the
(Sgd.) C.” commission of fraud or undue influence

b. The absence of the attestation clause is a fatal ❖ OTHER COMMENTS ON FORMALITIES OF NOTARIAL
defect. if the attestation clause is not signed by WILLS
the attesting witnesses at the bottom thereof, 1. It is not essential that the will has to be read to
the will is void since omission negates the the witnesses, or that they know their contents.
participation of said witnesses.] While they are required to participate in the
[NOTE: In the Cagro case, the dissenting opinion argued acknowledgment before the notary public, still
for the validity of the will for, after all, the attesting what they will acknowledge is NOT the will but
witnesses had signed at the left hand margin, and attestation clause.
anyway, the law does not require this signing by the 2. It is not necessary that the notarial will be dated.
attesting witnesses at the end or bottom of the Even if erroneous, the date will not defeat a
attestation clause. It is suffi cient that said clause be notarial will since the law does not even require
signed, at the bottom, or at the margins.] it to be dated.
c. While Art. 809 requires mere substantial [NOTE: The holographic will on the other hand has to be
compliance — still — the failure of the dated, otherwise it is null and void.]
attestation clause to state the number of pages
is a fatal defect. However, even if not in the 3. It is not essential to state the place where the will
attestation itself, if the number of pages is put is being made or executed. It is not essential to
down somewhere else in the will, as long as no state in the attestation clause that the person
evidence aliunde or extrinsic evidence is delegated by the testator to sign in his behalf did
required, there is deemed a substantial so in the presence of the testator. It is enough
compliance with the law that it be proved in court that this was what
happened. Nor is it possible to state therein that
d. The attestation is, properly speaking, not part of another person was requested by the testator to
the will itself, but same may of course be sign for him, when the testator himself has
incorporated into the will itself. Or it may, of thumb marked the will
course, be written on a separate page.
4. Essential requirements for notarial will other
e. The attestation clause is an act of the witnesses, than those mentioned in Arts. 804 and 805:
hence, it need not contain the signature of the
testator. If present, said signature will be treated 1) Art. 806 (acknowledgment before notary
as mere surplusage. public)

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 SUCCESSION | LDCS

2) Arts. 807 and 808 (special cases — when the of the document has attested to the notary that
testator is deaf, mute, or blind). the same is his own free act and deed
[NOTE: When asked in the BAR EXAMINATIONS for the ❖ MEANING OF JURAT
essential requisites for notarial wills, the following
articles should all be given: Arts. 804- 809, inclusive.]. - A jurat is that part of an affidavit whereby the
notary certifies that before him, the document
5. Absence of documentary stamp not a fatal was subscribed and sworn by the executor
defect - the probate court can require the
proponent of the will to affix the needed stamp ❖ INTERVENTION OF THE NOTARY PUBLIC
the the acknowledgment of said will. - The notary public does not have to be present at
the execution of the will. He may, of course, be
806 Every will must be acknowledged before a
present, if he wants. He cannot, however, be one
notary public by the testator and the
of the 3 instrumental witnesses, referred to in
witnesses. The notary public shall not be
the law. Note further that his presence is
required to retain a copy of the will, or fi le
required for the acknowledgment.
another with the office of the Clerk of Court.
- Ordinarily, the notary public is not required, not
❖ NECESSITY OF ACKNOWLEDGEMEN (NOTARIAL
even allowed, to read the will, or to know the
WILLS)
contents of the will, unless the testator permits
- Though the Article says “every Will,” it is him to do so. It should be remembered that the
understood to refer only to notarial or ordinary notary public is not the person acknowledging
Wills, not to holographic Wills. This is evident the will, it is he before whom it is acknowledged.
because the law says that the acknowledgment The only instance when the notary public is
should be “by the testator and the witnesses,” required to read the will is in the case
and a holographic Will needs no witnesses contemplated by Art. 808 — regarding a blind
testator.
- The express requirement of Art. 806 of the new
Civil Code is that the will is to be - The testator and the instrumental witnesses do
“acknowledged,’’ and not merely subscribed and not have to make the acknowledgment in the
sworn to. The acknowledgment coerces the presence of one another. This is required only in
testator and the instrumental witnesses to the attestation, not in the acknowledgment.
declare before an officer of the law that they had
- Note that it is the subscribing or attesting
executed and subscribed to the will as their own
witnesses who should acknowledge together
free act or deed
with the testator, not ordinary or other
- If a will is duly acknowledged before a notary witnesses.
public, there is in its favor the presumption of
- A notarial will is NOT a public instrument,
regularity.
although acknowledged. This is evident from the
❖ A ‘NOTARIAL WILL’ NOT ACKNOWLEDGED BEFORE fact that unlike in the case of public instruments,
A NOTARY PUBLIC BY TESTATOR AND THE “the notary public shall not be required to retain
WITNESSES IS FATALLY DEFECTIVE a copy of the will, or fi le another, with the Office
of the Clerk of Court.
- This is even if it is subscribed and sworn to before
a notary public ❖ LACK OF DOCUMENTARY STAMP

❖ ACKNOWLEDGEMENT DEFINED - What the probate court should have done was to
require the petitioner or proponent to affix the
- This is the act of one who has executed a deed in requisite thirty-centavo documentary stamp to
going before some competent officer or court the notarial acknowledgment of the will which is
and declaring it to be his act or deed. It involves the taxable portion of that document; after all,
an extra-step undertaken whereby the signor the documentary stamp may be affixed at the
actually declares to the notary that the executor

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 SUCCESSION | LDCS

time the taxable document is presented in ANS.: The law is silent on this point, but it would seem
evidence. that for the better protection of the testator, it is
advisable to have same done before the notary public so
807 If the testator be deaf, or a deaf-mute, he must that the blind man may have the benefit of the notary
personally read the will, if able to do so; public’s participation even before he signs the will.
otherwise, he shall designate two persons to
read it and communicate to him, In some d. If a testator is a deaf-mute and also blind, may
practicable manner, the contents thereof. he still make a will?

❖ RULES WHEN TESTATOR IS A DEAF OR A DEAF- ANS.: No, unless in some way, the contents thereof may
MUTE properly be communicated to him in accordance with the
legal requirements.
a. The Article speaks of a testator who is deaf or a
deaf-mute. ❖ DISQUALIFICATION OF NOTARY PUBLIC

b. If he cannot read the will (illiterate), two persons - The notary public before whom the will is
must communicate its contents to him. acknowledged cannot be one of the three
witnesses to said will, in view of the absurdity of
c. The two persons designated need not be the one person acknowledging something before
attesting witnesses. himself
d. That this Article has been complied with must be 808 In the absence of bad faith, forgery, or fraud,
proved in the probate proceedings. And this is or undue and improper pressure and influence,
why it would seem wise to state either in the defects and imperfections in the form of
notarial acknowledgment or in the attestation attestation or in the language used therein
clause itself that the Article has been complied shall not render the will invalid if it is proved
with. Yet, it is not essential to do so, as long as that the will was in fact executed and attested
suffi cient proof (even extrinsic or parol evidence in substantial
is enough) is presented.
compliance with all the requirements of Article
e. In a case involving an illiterate testator, it was 805
held that the fact that the will had been read to
him, need not be stated in the attestation, and ❖ EFFECT OF SUBSTANTIAL COMPLIANCE
that it is sufficient if this fact is proved during the
probate proceedings. - This Article provides the rule for substantial
compliance that is, as long as the purpose sought
808 If the testator is blind, the will shall be read to by the attestation clause is obtained, the same
him twice; once, by one of the subscribing should be considered valid
witnesses, and again, by the notary public
- Note however that the law speaks not of defects
before whom the will is acknowledged.
of substance but defects and imperfections —
❖ RULES IF THE TESTATOR IS BLIND
a. In the FORM of attestation, or
a. This Article applies if the testator is BLIND.
b. in the LANGUAGE used therein.
Comments (d) and (e) under the preceding
article are also applicable. ❖ HOW SUBSTANTIVE DEFECT CAN BE CURED
b. Note that the reading is twice — - It is believed that defects of substance can be
cured only by evidence WITHIN the will itself —
1) once by one of the subscribing witnesses,
not by evidence aliunde (extrinsic evidence). It
2) and once by the notary public. should be noted that the phraseology of the
article is indeed misleading. Thus, Justice J.B.L.
c. Should this will be signed and executed in the Reyes of the Supreme Court has made the
presence of the notary public? following observation:

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 SUCCESSION | LDCS

o “I submit that the rule here is so broad ❖ PURPOSE OF THE LAW REQUIRING ATTESTATION
that no matter how imperfect the CLAUSE
attestation clause happens to be, the
same should be cured by evidence - to state the number of pages on which the will is
aliunde. It thus renders the attestation written is to safeguard against possible
of NO VALUE in protecting against fraud interpolation or omission of one or some of its
or really defective execution. The rule pages and to prevent any increase or decrease in
must be limited to disregarding those the pages
defects that can be supplied by an 810 A person may execute a holographic will which
examination of the will itself; whether all must be entirely written, dated, and signed by
the pages are consecutively numbered; the hand of the testator himself. It is subject to
whether the signatures appear in each no other form, and may be made in or out of
and every page; whether the subscribing the Philippines, and need not be witnessed.
witnesses are three or the will was
notarized. All these are facts that the will ❖ DEFINITION OF HOLOGRAPHIC WILLS
itself can reveal, and defects or even
- A holographic will is one entirely written, dated,
omissions concerning them in the
and signed by the hand of the testator.
attestation clause can be safely
disregarded. But the total number of ❖ ADVANTAGE OF HOLOGRAPHIC WILL
pages, and whether all persons required
to sign did so in the presence of each a. easier to make
other must substantially appear in the b. easier to revise
attestation clause,
c. easier to keep secret
❖ PURPOSE OF THE ARTICLE
❖ DISADVANTAGE
- Art. 809 has been designed to attain the main
objective of the new Civil Code in the a. easier to forge by expert falsifiers
liberalization of the manner of executing wills.
b. easier to misunderstand since the testator may
(Comment of the Code Commission). The Court’s
have been faulty in expressing his last wishes
policy is to require satisfaction of the legal
requirements in order to guard against fraud and c. no guaranty that there was no fraud, force,
bad faith, but without undue or unnecessary intimidation, undue influence; and no guaranty
curtailment of the testamentary privilege. regarding testator’s soundness of mind.
❖ EFFECT OF THE ENEACTMENT OF THE NEW CIVIL ❖ FORMALITIES FOR A HOLOGRAPHIC WILL
CODE IN 1950 RE ATTESTATION CLAUSE
a. The language must be known to the testator.
- The enactment of the new Civil Code in 1950 did (Art. 804). (Therefore, it is not sufficient that it
put in force a rule of intrepretation of the be interpreted to him.)
requirements of wills, at least insofar as the
attestation clause is concerned. b. The will must be entirely written in the hand of
the testator himself. (Therefore, if it is
- For instance, a failure by the attestation clause typewritten, printed, in a computer print-out, or
to state that the testator signed every page can mimeographed, it is void. If the testator has no
be liberally-construed, since that fact can be hands, but can write with his foot, this would be
checked by a visual examination, while a failure all right, since what the law requires is a personal
by the attestation clause to state that the distinctiveness.)
witnesses signed in one another’s presence
should be considered a fatal flaw since the c. The will must be DATED.
attestation is the only textual guarantee of [NOTE:
compliance.

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 SUCCESSION | LDCS

1. The will must be dated — so that in case of a a. No witnesses are required. [If there be witnesses
revision of the Will, that of later date should be or an attestation clause, the witnesses and the
preferred as expressing truly the last Will and clause will just be disregarded, and considered as
testament. mere surplusage, the will itself remaining valid)
2. If the date is not given, the Will is null and void, b. No marginal signatures on the pages are
since the date in the holographic Will is a required.
mandatory requisite.
c. No acknowledgment is required.
3. The date must be in the handwriting of the
testator, hence, if printed, the whole Will is null d. In case of any insertion, cancellation, erasure or
and void. alteration, the testator must authenticate the
same by his full signature. (Art. 814).
4. The date must be complete, that is, it must
contain the year, month, and day. e. May be made in or out of the Philippines, even
“Independence Day, 2002” would be all right, by Filipinos. (See Art. 810). (Note that Art. 815 is
however, since here, there is no doubt as to the only permissive.)
exact date. “June 8/02’’ would also be sufficient, f. May be made even by a blind testator, as long as
since it is understood that the year is “2002.’’ But he is literate, at least 18, and possessed of a
“June 8, 200__’’ would not be proper, since the sound mind.
date would then be considered incomplete.
g. Even the mechanical act of drafting a
5. Although generally the date should be the true holographic will may be left to someone other
one, an incorrect date, as long as it was made in than the testator, as long as the testator himself
good faith, does not invalidate the will. But if the copies the draft in his own handwriting, dates it,
wrong date was inserted intentionally, it is as if and signs it. (See Art. 810).
there is no date, hence, the will is considered
void. ❖ FUNCTION OF A PROBATE COURT

d. The will must be SIGNED by the testator himself. - Its main task is to settle and liquidate the estates
of deceased persons either summarily or thru
[NOTE: the process of administration. Thus, the
1. The full or customary signature is needed, hence, determination of a person’s suitability for the
the full name is not required. If, therefore, the offi ce of administrator rests, to a great extent,
testator’s habitual signature is “Ed Paras,” this is in the sound judgment of the court exercising the
sufficient. power of appointment and such judgment will
not be interfered with on appeal unless it
2. The signature must appear at the end of the will. appears affirmatively that the court below was in
This is evident from the fact that additional error.
dispositions can be “written below his signature.
811 In the probate of a holographic will, it shall be
3. There must be animus testandi. (Therefore, a will necessary that at least one witness who knows
in the form of a letter is all right, as long as the the handwriting and signature of the testator
intent to leave a will is clear, but a letter which explicitly declare that the will and the signature
incidentally contains testamentary dispositions are in the handwriting of the testator. If the will
or probable property dispositions cannot be is contested, at least three of such witnesses
considered a valid holographic will.) shall
4. It must be executed at the time that holographic be required.
wills are allowed, not before, the time of death
being immaterial In the absence of any competent witness
referred to in the preceding paragraph, and if
❖ OTHER FEATURES OF HILOGRAPHIC WILL the court deem it necessary, expert testimony
may be resorted to.

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 SUCCESSION | LDCS

❖ PROBATE OF HOLOGRAPHIC WILLS 812 In holographic wills, the dispositions of the

testator written below his signature must be
- Probate means the allowance of a will by the
dated and signed by him in order to make them
court after its due execution has been proved.
valid as testamentary dispositions.
- Proof of identity of the signature and
❖ DISPOSITION WRITTEN BELOW THE SIGNATURE
handwriting of the testator is important,
otherwise, the will cannot be valid. - A testator may draft one part of a holographic
will at one time, and another part at another
- The probate may be —
time. It may even happen that the latter
1) Uncontested dispositions are made even after the signature
had been written. Hence, the necessity for a
2) or contested provision like Art. 812.
- If uncontested, at least one identifying (not - Dispositions after the signature must be both
necessarily a subscribing) witness is required to DATED and SIGNED by the testator to be valid. If
avoid the possibility of fraud. If no witness is SIGNED — but NOT dated, or if DATED but NOT
available, experts may be resorted to. signed, the additional dispositions are void, for
- If contested, at least three such identifying lack of an essential requisite. Note that said
witnesses should be required. If none are dispositions are really considered independent
available, experts may be called upon, otherwise of the will itself. (Refer however to Art. 813
the will of the testator may be frustrated thru no 813 When a number of dispositions appearing in a
fault of his own. Upon the other hand, even if holographic will are signed without being
ordinary witnesses are available, still if they are dated, and the last disposition has a signature
unconvincing, the court may still, and in fact and date, such date validates the dispositions
should resort to handwriting experts. The duty of preceding it, whatever be the time of prior
the Court, in fi ne, is to exhaust all available lines dispositions.
of inquiry, for the state is very much interested
in carrying into effect the true intention of the ❖ RULES FOR CURING DEFECTS
testator. Because, however, the law leaves it to
a. If the last disposition is SIGNED and DATED —
the trial court to decide if experts are still
needed, no unfavorable inference can be drawn 1. preceding dispositions which are SIGNED but
from the party’s failure to offer expert evidence, NOT DATED are validated.
until and unless the court expresses
dissatisfaction with the testimony of the lay 2. preceding dispositions which are NOT
witnesses SIGNED but DATED are VOID. (This can be
inferred from the wording of the law.)
❖ EFFECT OF HOLOGRAPHIC WILL IF LOST OR
DETROYED 3. preceding dispositions which are NOT
SIGNED and NOT DATED are of course VOID,
- it CAN NEVER be probated because the BEST and unless written on the SAME date and
ONLY evidence therefor is the HANDWRITING of occasion as the latter disposition.
the testator in SAID will. Evidence of sample
handwritten statements of the testator cannot b. The discussion in (a) presupposes that the latter
be admitted because there would be no disposition was DATED and SIGNED by the
handwritten will with which to make a testator HIMSELF. Therefore:
COMPARISON. It is believed however that a 1. if done by ANOTHER, without the testator’s
photostatic copy of the holographic will may be consent, same will not affect the previous
allowed because here, there can be a dispositions, which remain VOID if in
COMPARISON. Evidently, the probate of a lost or themselves VOID; and remain VALID if in
destroyed will referred to in the last paragraph themselves VALID.
of Art. 830 can only refer to a notarial, not a
holographic will
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 SUCCESSION | LDCS

2. if done by ANOTHER with the testator’s might be proved and allowed by the law of his
CONSENT, same effects as (1), because the own country, shall have the same effect as if
latter disposition is not really HOLOGRAPHIC executed according to the laws of the
(not done by the testator himself). Philippines
815 When a Filipino is in a foreign country, he is ❖ FORMALITIES OF WILL EXECUTED BY ALIENS IN THE
authorized to make a will in any of the forms PHILIPPINES
established by the law of the country in which
he may be. Such will may be probated in the - If a Chinese lives in Manila, he can follow the
Philippines. (n) extrinsic formalities of wills required.

❖ FORMALITIES OF WILL EXECUTED BY FILIPINOS a. in China (Art. 817) — lex nationalii

ABROAD b. or in the Philippines (Art. 17) — lex loci
- Note the word “authorized.” This makes the celebrationis
Article permissive, not mandatory. Therefore, by ❖ REASON FOR THE PROVISIONS
way of example, a Filipino, if in California, can
make a will there in accordance with the forms - Reason for allowing him to make a will following
(extrinsic validity) of: his own country’s formalities: Being a citizen
thereof, he may be more cognizant of said laws
a. California than those in the Philippines.
b. or of the Philippines (even if the Philippine ❖ IN RE ESTATE OF JOHNSON, 39 PHIL 156
form is not recognized in California)
- A will executed in Manila by a citizen of Illinois
[NOTE: There is one exception to this article and that is, a living in Manila, and which follows the
Filipino cannot execute abroad a joint will even if the requirements in Illinois, can be admitted to
same is valid there. (See Art. 819).]. probate in the Philippines.
816 The will of an alien who is abroad produces 818 Two or more persons cannot make a will
effect in the Philippines if made with the jointly, or in the same instrument, either for
formalities prescribed by the law of the place their reciprocal benefit or for the benefi t of a
in which he resides, or according to the third person
formalities observed in his country, or in
conformity with those which this Code ❖ JOINT WILLS DEFINED
prescribes. (n)
- Joint wills are those which contain in ONE
❖ FORMALITIES OF WILLS EXECUTED BY ALIENS instrument the will of two or more persons
ABROAD jointly signed by them.

- An alien abroad may make a will in accordance - Example: A and B, friends, made a will in one
with the formalities (extrinsic validity) instrument, making C their heir. (Under the law,
prescribed by the law of: joint wills are VOID.)

a. the place of his residence or domicile; ❖ RECIPROCAL OR MUTUAL WILLS DEFINED

b. his own country or nationality; - They are those that provide that the survivor of
the testators will succeed to all or some of the
c. the Philippines; properties of the decedent.
d. the law of the place of execution. (Art. 17, - Example: A made a will making B his heir. B also
par. 1). made a will making A as his heir.
817 A will made in the Philippines by a citizen or [NOTE: Mutual wills or reciprocal wills by themselves are
subject of another country, which is executed VALID, but if made in one instrument, they are void, not
in accordance with the law of the country of because they are reciprocal, but because they are joint.].
which he is a citizen or subject, and which
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 SUCCESSION | LDCS

[NOTE: Joint wills, whether reciprocal or not, are void.]. - Note, however, that the prohibition refers only
to Filipinos. Hence, if made by foreigners abroad,
❖ REASON WHY JOINT WILLS ARE VOID and valid in accordance with Art. 816, the same
1. To allow as much as possible SECRECY, a will should be considered as valid here.
being a purely personal act. - How about joint wills executed by foreigners?
2. To prevent undue infl uence by the more ANS.:
aggressive testator on the other.
1. If executed abroad and valid in accordance
3. In case of death of the testators at different with Art 816, same should be considered
times, probate would be harder. valid here. (This is a clear implication from
4. It militates against the right of a testator to Art. 819.
revoke his will at any time. (Example: One 2. if executed in the Philippines, same should
testator would be prevented from revoking by be considered VOID because although
an overt act, like tearing or burning, for the other apparently allowed under Art. 817, still Art.
may not agree.) 818, which refers specifically to joint wills,
5. In case of a husband and wife, one may be and which should be considered as an
tempted to kill the other expression of public policy, should prevail

❖ WILLS THAT ARE NOT JOINT WILLS Subsection 4. — WITNESSES TO WILLS

- Those made on a single sheet of paper, the first 820 Any person of sound mind and of the age of
on the front, and the second on the reverse side. eighteen years or more, and not blind, deaf or
(Reason: There are really two wills here.) dumb, and able to read and write, may be a
witness to the execution of a will mentioned in
- Those made even on the same page with or Article 805 of this Code. (n)
without a dividing line between them, but
neither combining the signature of BOTH ❖ QUALIFICATIONS FOR WITNESS TO NOTARIAL
together. (Reason: Here again there are really WILLS
two instruments or two wills, which are
- At the time of attesting (Arts. 820 and 821), the
INDEPENDENT of each other.)
witness must:
[NOTE: Reciprocal wills between a husband and wife, as
a. be of sound mind (Art. 820)
long as not made jointly, are valid. This is true even if the
same witnesses are used.] b. be at least 18 years (Art. 820)
❖ RULES IN OTHER COUNTRIES c. be able to read and write (Art. 820)
- Among the countries that prohibit the execution d. not be blind, deaf, or dumb (Art. 820)
of joint wills are Argentina, Brazil, Lower Canada,
France, and Mexico. In Germany, however, joint e. be domiciled in the Philippines (Art. 821)
will may be made, but only by a married couple f. not have been CONVICTED (by fi nal
819 Wills, prohibited by the preceding article, judgment of FALSIFICATION of a document;
executed by Filipinos in a foreign country shall PERJURY; or FALSE TESTIMONY (Art. 821)
not be valid in the Philippines, even though 821 821. The following are disqualifi ed from being
authorized by the laws of the country where witnesses to a will:
they may have been executed.
1. Any person not domiciled in the Philippines;
❖ EFFECT OF JOINT WILLS EXECUTED ABROAD
2. Those who have been convicted of falsifi
- Note that Art. 819 is an expression of public cation of a document, perjury or false
policy, and is clearly one exception to the rule of testimony.
lex loci celebrationis.
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 SUCCESSION | LDCS

❖ MORE QUALIFICATIONS FOR WITNESSESS THAN act as a witness to a will. This is because there is
TESTATORS no mental dishonesty.
- Note that the qualifications of a witness to a b. If the absolute pardon was an act of Executive
notarial will are numerically more than those grace of clemency, it is submitted that the
required of a testator. disqualification remains, for even an absolute
pardon does not remove civil consequences. The
- Example: While a blind or illiterate person can would-be witness still has a taint of mental
make a will, he cannot be a witness to a notarial dishonesty
one.
- Example: Even an absolute pardon granted a
- (Of course, a blind person can witness a wife by the Chief Executive, after a wife has
holographic will, since after all, said will requires committed the crime of adultery, will not
no witness.) prevent the husband from instituting a suit for
- Observe however that it is not essential that the LEGAL SEPARATION, as long as the prescriptive
witness be a citizen of the Philippines, for period has not yet lapsed.
domicile is what the law merely requires. ❖ DISQUALIFICATION OF NOTARY PUBLIC
Domicile is defi ned in Art. 6 of the new Civil Code CONCERNED
as the place of habitual residence
- The notary public before whom the notarial will
❖ RULE IF WILL IS EXECUTED ABROAD is acknowledged is disqualified to be a witness to
- [NOTE: Of course, it should be observed that said will. It would be absurd for him (as witness)
generally, there are two reasons for the to be acknowledging something before himself
requirement of Philippine domicile: (as notary public)

a. the assurance that the witness will be ❖ CREDIBILITY OF WITNESS TO A NOTARIAL WILL
available at the time the will is presented for - While the instrumental witnesses to a will must
probate; be shown to have the qualifi cations under Art.
b. the likeliness of personal acquaintance with 820 of the Civil Code and none of the disqualifi
the testator (hence, greater credibility as a cations under Art. 821, it is presumed that they
witness, for example, on the soundness of are trustworthy and reliable, unless the contrary
mind of the testator is established

❖ RULES REGARDING CONVICTED WITNESSES 822 If the witnesses attesting the execution of a will
are competent at the time of attesting, their
- Note that regarding convicts, only three crimes becoming subsequently incompetent shall not
have been mentioned: prevent the allowance of the will.
a. falsification of a document (whether the ❖ EFFECT OF SUBSEQUENT INCAPACITY
document be public, commercial, or even
private) a. Observe that subsequent incapacity is
immaterial. Of course, if the witness is
b. perjury incapacitated to testify at the time of probate, he
c. false testimony cannot testify as a witness This does not mean,
however, that the validity of the will is impaired
d. By implication, conviction for other crimes by such fact.
such as murder or arson or rape cannot be
said to be a disqualification. b. Note also that capacity as a witness to a will is
different from capacity as a witness in court. To
❖ EFFECT OF PARDON be a witness in court, it is sufficient that a person
be “possessed of organs of perception, and
a. If the pardon was given because of the man’s
perceiving can make known what he has
innocence, as when somebody else had been
proved to be the really guilty person, he can now
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 SUCCESSION | LDCS

perceived.” Hence, a 15-year-old person, for [NOTE: Other relatives of the witness, like his brother or
example, may be a witness in court. sister, to whom a devise or legacy has been given, can get
the inheritance.]
823 If a person attests the execution of a will, to
whom or to whose spouse, or parent, or child, ❖ EFFECT IF WITNESS IS A COMPULSORY HEIR
a devise or legacy is given by such will, such
- If the witness, spouse, parent or child (of the
devise or legacy shall, so far only as concerns
witness) is a compulsory heir (as when the
such person, or spouse, or parent, or child of
witness is the child of the testator), said heir is
such person, or any one claiming under such
still entitled to the LEGITIME, otherwise this
person or spouse, or parent, or child, be void,
would be an easy way to sort of disinherit him
unless there are three other competent
without any justifiable cause. (See Art. 915). The
witnesses to such will. However, such person
purpose of the law being to prevent undue
so attesting shall be admitted as a witness as if
influence, it is understood that the prohibition
such devise or legacy had not been made or
refers only to the free portion.
given. (n)
[NOTE: While the law says only devise or legacy, it should
❖ WITNESSES CANNOT INHERIT
be understood to refer also to the institution of an heir
- Observe that the persons named in the Article (voluntary), and or even of compulsory heirs also, but
are incapacitated to inherit, but not only insofar as he has been given the free portion or an
incapacitated as witnesses. Hence, only the part excess of his legitime. (See also Art. 1027, par. 4 which
appertaining to them should be considered void. does not distinguish between heirs on the one hand, and
devisees or legatees on the other hand.)]
- Example: T made a notarial will with A, B, and C
as witnesses. In the will, A was given a piece of 824 A mere charge on the estate of the testator for
land as a devise. There were of course other the payment of debts due at the time of the
testamentary provisions. Is the will valid? testator’s death does not prevent his creditors
from being competent witnesses to his will.
- ANS.: The will is valid, since there were three
credible witnesses, A being one of them. ❖ CREDITOR AS WITNESSES
However, while A is capacitated as a witness, he
is incapacitated to receive the devise, hence, the a. The charge referred to here is a debt of the
provision regarding said devise should be estate or of the testator.
disregarded, the rest of the will being valid. b. While a creditor who acts as a witness is
- If in the example given above, there were three disqualified to inherit, he is qualified to receive
witnesses other than A, A would be entitled to his credit, which after all cannot be considered a
get the land gift.

- The disqualifi cation extends to — Subsection 5. — CODICILS AND INCORPORATION BY

REFERENCE
1. the witness
825 A codicil is a supplement or addition to a will,
2. the spouse of the witness made after the execution of a will and annexed
to be taken as a part thereof, by which any
3. the parent of the witness
disposition made in the original
4. the child of the witness
will is explained, added to, or altered
5. anyone claiming the right of said witness,
❖ CODICIL DFEINED
spouse, parent, or child. (Example: the
creditor of the witness if said creditor has - “Codicil” is derived from the Latin “codex” and
not been paid his credit.) literally means a little code or a little will
(although, of course, physically it may be larger
or longer than a will).

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❖ TIME WHEN CODICIL IS MADE (4) It must be signed by the testator and the
witnesses on each and every page, except in
- A codicil, since it refers to a will, cannot be made
case of voluminous books
before a will; it is always made after. (Of course,
even the codicil may later on be revoked by of account or inventories.
another will or codicil.)
❖ INCORPORATION BY REFERENCE
❖ RULE IN CASE OF CONFLICT BETWEEN WILL AND
COIDICIL - The purpose of the Article is to provide for those
cases when a testator wishes to incorporate to
- In case of confl ict between a will and a codicil, it his will only by reference (i.e., without copying
is understood that the latter should prevail, it the whole thing) certain documents or papers,
being the later expression of the testator’s especially inventories and books of accounts.
wishes (Report of the Code Commission, p. 108).
Thereby, the testator is able to save time and
826 In order that a codicil may be effective, it shall
energy.
be executed as in the case of a will
- Said documents or inventories, when referred to
❖ FORMALITIES OF CODICIL in a notarial will, do not need any attestation
- As in the case of wills, there can be: clause, because the attestation clause of the will
itself is sufficient.
a. notarial or ordinary codicils
❖ REQUISITIES FOR VALDIITY OF DOCUMENTS
b. holographic codicils INCORPORATED BY REFERENCE
NOTE: A notarial will may be revoked by either a notarial a. The document or paper referred to in the will
or holographic codicil; similarly, a holographic will may must be in existence at the time of the execution
be revoked by a holographic or notarial codicil. of the will.
NOTE further: [Therefore:
a. If a codicil is not executed with the formalities of 1. Reference to future papers will render the
a will, said codicil is void. incorporation void. (See In Re Goods of Pied, 38
b. A valid will can never be revoked, expressly or LJ, [NS] P and M 1). (However, the will itself
impliedly, by an invalid codicil remains valid.)
2. The will must refer to the papers as having been
827 If a will, executed as required by this Code,
already made; it is not enough that in truth it was
incorporates into itself by reference any already in existence.]
document or paper, such document or paper
b. The will must clearly describe and identify
shall not be considered a part of the
(locations, general appearance) the same,
will unless the following requisites are present: stating among other things, the number of pages
thereof. (This is true even in the case of
(1) The document or paper referred to in the voluminous books of account or inventories.)
will must be in existence at the time of the
execution of the will; c. It must be identified by clear and satisfactory
proof as the document or paper referred to
(2) The will must clearly describe and identify therein (parol evidence or evidence aliunde is
the same, stating among other things the needed here of course).
number of pages thereof;
d. It must be signed by the testator and the (same
(3) It must be identified by clear and instrumental) witnesses on each and every page,
satisfactory proof as the document or paper except in case of voluminous books of account or
referred to therein; and inventories.

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[NOTES: c. It must be identified by clear and satisfactory

proof as the document or paper referred to
1. Observe that even the number of pages of
therein (parol evidence or evidence aliunde is
voluminous accounts or inventories must be needed here of course).
stated. (Art. 827, par. 2).
d. It must be signed by the testator and the (same
2. The exception refers only to the signing of all instrumental) witnesses on each and every page,
pages; and even here, while not every page has except in case of voluminous books of account or
to be signed, still it is believed that there must be inventories.
a signature on at least several pages thereof for
the purpose of identifying same as the [NOTES:
documents really referred to.].
1. Observe that even the number of pages of
❖ INCORPORATION CAN GENERALLY BE DONE ONLY voluminous accounts or inventories must be
IN NOTARIAL WILLS stated. (Art. 827, par. 2).
- From the fact that Art. 827(4) speaks of 2. The exception refers only to the signing of all
“witnesses,” it is reasonable to believe that as a pages; and even here, while not every page has
rule, only notarial wills can have this to be signed, still it is believed that there must be
incorporation by reference. However, it is a signature on at least several pages thereof for
submitted that the purpose of identifying same as the
documents really referred to.].
a. If a holographic will happen to have at least
three credible and qualified witnesses, there ❖ INCORPORATION CAN GENERALLY BE DONE ONLY
can be proper incorporation by reference. IN NOTARIAL WILLS
b. Moreover, if a holographic will (with NO - From the fact that Art. 827(4) speaks of
witnesses) refers to a document entirely “witnesses,” it is reasonable to believe that as a
written, dated, and signed in the rule, only notarial wills can have this
handwriting of the testator, there can also incorporation by reference. However, it is
be a proper incorporation by reference. submitted that
❖ REQUISITES FOR VALIDITY OF DOCUMENTS a. If a holographic will happen to have at least
INCORPORATED BY REFERENCE three credible and qualified witnesses, there
can be a proper incorporation by reference
a. The document or paper referred to in the will
must be in existence at the time of the execution b. Moreover, if a holographic will (with NO
of the will. witnesses) refers to a document entirely
written, dated, and signed in the
[Therefore: handwriting of the testator, there can also
1. Reference to future papers will render the be a proper incorporation by reference.
incorporation void. (However, the will itself
remains valid.)
2. The will must refer to the papers as having been
already made; it is not enough that in truth it was
already in existence.
Subsection 6. — REVOCATION OF WILLS AND
b. The will must clearly describe and identify
(locations, general appearance) the same, TESTAMENTARY DISPOSITIONS
stating among other things, the number of pages 828 A will may be revoked by the testator at any
thereof. (This is true even in the case of time before his death. Any waiver or restriction
voluminous books of account or inventories.) of this right

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 SUCCESSION | LDCS

is void. (737a) NOTE: This is true whether or not the domicile is in the
Philippines.].
❖ REVOCABILITY OF WILL
830 No will shall be revoked except in
- Until the death of the testator, a will is the following cases:
ambulatory and revocable, since after all, the will
concerns a disposition of properties and rights (1) By implication of law; or
effective after death.
(2) By some will, codicil, or other
- The heirs do not acquire any vested right to the writing executed as provided in
disposition in a will until after the testator’s case of wills; or
death.
(3) By burning, tearing, cancelling,
- Provisions in a will which are ordered to be or obliterating the will with the
effected immediately, even during the testator’s intention of revoking it, by the
lifetime, are all right, provided the proper testator himself, or by some other
formalities and requisities are present, but they person in his presence, and by his
are not really testamentary disposition express direction. If burned, torn,
cancelled, or obliterated by some
829 A revocation done outside the other person, without the express
Philippines, by a person who does direction of the testator, the will
not have his domicile in this may still be established, and the
country, is valid when it is done estate distributed in accordance
according to the law of the place therewith, if its contents, and due
where the will was made, or execution, and the fact of its
according to the law of the place in unauthorized destruction,
which the testator had his cancellation, or
domicile at the time; and if the
revocation takes place in this obliteration are established
country, when it is in accordance according to the Rules of Court.
with the provisions of this Code.
❖ LOCAL OR DOMESTIC WAYS OF REVOCATION
(n)
- The Civil Code speaks of revocation in three
❖ CONFLICTS RULES FOR REVOCATION OF WILLS
ways:
- For revocation OUTSIDE the Philippines
a. by implication or operation of law (totally or
1. If not domiciled in the Philippines partially)

a. follow law of place where will was MADE b. by virtue of an overt act (like burning,
tearing, cancelling, or obliterating totally or
b. or follow law of place where testator partially in some instances)
was DOMICILED at the time.
c. by virtue of a revoking will or codicil (totally
2. If domiciled in the Philippines (not provided or partially, or expressly or impliedly). (This
for in the law) — is discussed last, and also under Art. 831.)
a. follow law of the Philippines (since his ❖ REVOCATION BY IMPLICATION OF LAW
domicile is here) —
- Meaning — the kind of revocation produced by
b. or follow the general rule of lex loci OPERATION of LAW when certain acts or events
celebrationis of the REVOCATION. (Art. take place after a will has been made, rendering
17). void or useless either the whole will or certain
- If revocation is IN the Philippines, follow testamentary dispositions therein.
Philippine law. (Civil Code).

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 SUCCESSION | LDCS

[Note, however, that the revocation of a legacy does not mind by executing a new will or codicil. American
operate to revoke the entire will. Only total and absolute Jurisprudence provides: “Where the revocation
revocation of the entire will prevent the probate of the of a will is presumed by law from a change in the
revoked testament. ] testator’s circumstances, evidence is generally
not admissible to rebut the presumption, at least
- Reason for allowing revocation by implication of not evidence of subsequent unexecuted
law: There may be certain changes in the family intentions of the testator.’’ (57 Am. Jur., Wills,
or domestic relations or in the status of his Sec. 521). In some cases though, if the
property, such that the law presumes a change subsequent intention has been executed or
of mind on the part of the testator. manifested by a new will, for instance, said new
- Some instances of revocation by implication of will must prevail.
law: ❖ REVOCATION BY AN OVERT ACT
1. When after the testator has made a will, he - Requisites:
sells, or donates the legacy or devise. (See
Art. 957). 1. There must be an overt act specifi ed by the
law.
Example: T gave A a legacy of T’s Volvo car in his will. A
year later, T sold the car to B for P2M. On T’s death, will 2. There must be a completion at least of the
A get the car, the P2M, or nothing? subjective phase of the overt act.
ANS.: A gets nothing, because by provision 3. There must be animus revocandi or intent to
revoke.
of law, T’s alienation of the car revoked the legacy
automatically and by operation of law. 4. The testator at the time of revoking must
have capacity to make a will. (Example: He
2. Provisions in a will in favor of a spouse who
must be of sound mind, otherwise there is
has given cause for legal separation shall be no real revocation.).
revoked by operation of law the moment a
decree of legal separation is granted. (See 5. The revocation must be done by the testator
Art. 106, No. 4). himself, or by some other person in his
presence and by his express direction.
3. When an heir, legatee, or devisee commits (Ratification of an unauthorized destruction
an act of unworthiness under Art. 1032. is however permissible provided sufficient
4. When a credit that had been given as a proof of this is presented.).
legacy is judicially demanded by the testator. - The overt act of BURNING
(Art. 936).
1. It is sufficient even if a small part of the
5. When one, some or all of the compulsory instrument itself be burned even though the
heirs have been preterited or omitted, the entire writing itself be left untouched.
institution of heir is void. (See Art. 854)
2. If thrown into the fi re with intent to revoke,
- We know that revocation by implication of law and it was burned in three places without
exists because we presume a change of mind on scorching the writing, there is already a
the part of the testator. Now then, suppose the revocation even if, unknown to the testator,
testator never intended to change his mind (for somebody was able to snatch it from the fi
example — suppose in the problem about the re and thus saved it.
car legacy that was sold, the testator
nevertheless intended to give the cash 3. CASE: A wanted to revoke his will, so he
equivalent to A), should there still be revocation threw it into a stove so that it would be
by implication of law? burned later on when a fire would be lighted
in the stove. However, the will was later
- ANS.: Generally, yes. What the testator should removed by another person from the stove
do in a case like this is to manifest his unchanged BEFORE the stove was lighted.
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HELD: There was NO revocation here, for while there was 3. If all parts are cancelled or obliterated, or if
intent to revoke, there never was the overt act of the signature is cancelled or obliterated, the
burning. However, the person who prevented the whole will is revoked, the reason in the case
revocation, if he be an heir or a legatee or devisee, will of the signature being that the act strikes at
still NOT inherit, not because of revocation by means of the existence of the whole instrument.
an overt act (for indeed there was NO overt act) but
because of revocation by implication of law, said person [NOTE: Cancellation of the signature of witnesses to a
being incapacitated to inherit by reason of holographic will leaves the will valid, since no witnesses
UNWORTHINESS. (See Art. 1032). are after all required.].

4. If a will is burned accidentally, there is no 4. Cancellation or obliteration of non-vital part

revocation in view of the lack of intention. leaves the other parts in force.

5. If the envelope containing a will is burned, - If a will is mutilated by error, there being no
but the will itself is untouched, there is NO animo revocandi, there is no revocation.
revocation even if there be intent to revoke. ❖ REVOCATION BY THE EXECUTION OF ANOTHER
Why? There was no overt act of burning the WILL OR CODICIL
will, as distinguished from the envelope
1. Revocation in this manner may be express or
- The overt act of TEARING implied. (Implied revocations consists in
1. Even a slight tear is suffi cient. complete inconsistency between the two wills.).

2. Of course, the greater the degree of tearing 2. A will may be revoked by a subsequent will or
the greater is the evidence of animo codicil, either notarial or holographic.
revocandi. Tearing into three pieces is suffi 3. It is essential however, that the revoking will be
cient. When all the other requisites are itself a valid will (validly executed as to form),
present. As a matter of fact tearing into two otherwise there is no revocation.
is even enough, as long as the subjective
phase is passed, that is, as long as the 4. The revocation made in the subsequent will
testator considers the will already revoked. must indeed be a definite one. A mere
declaration that sometime in the future, the first
3. “Tearing” includes “cutting.’’ A clause may would be revoked, is not enough. However,
be revoked by “cutting” same from the will. there is nothing wrong in making the revocation
The reason is that “crumpling” is not one of conditional, that is, the revocation takes place
the overt acts provided for by the law. only if the condition is fulfilled (doctrine of
However, in the Philippine case of Roxas v. “conditional revocation,” also called “dependent
Roxas, 48 O.G. 2177, the court impliedly relative revocation”).
allowed “crumpling’’ as one of the overt
acts, provided there is animo revocandi.]. 5. A second will referred to by the testator as his
“last will” revokes completely the first will,
4. Tearing off even the signature alone particularly if the provision of the two, as to who
constitutes provided the other requisites are were being instituted as heirs, are inconsistent.
present. This is because the signature goes
to the very heart of the will. ❖ PROBATE OF LOST OR DESTROYED NOTARIAL WILLS

- The overt act of OBLITERATING or CANCELLING - If a notarial will has been lost or destroyed
without intent to revoke, its contents may
1. Obliteration — renders the word illegible; nevertheless still be proved by:
cancellation — is the drawing of lines across
a text, but the words remain legible. a. oral or parol evidence

2. Either of the two revokes a will, totally or b. carbon copies — This is because a carbon copy
partially. signed by all concerned is just as good as the
original.

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[NOTE: Holographic wills, which have been lost or 833 A revocation of a will based on a
destroyed without intent to revoke, cannot be probated.]. false cause or an illegal cause is
null and void.
831 Subsequent wills which do not
revoke the previous ones in an ❖ REVOCATION BASED ON FALSE OR ILLEGAL CAUSE
express manner, annul only such
dispositions in the prior wills as are a. As already discussed under Art. 830, this Article
inconsistent with or contrary to 833 is one of the aspects of “dependent relative
those revocation,” or more properly, at least for the
purpose of this Article, “a revocation made
contained in the later wills. under a mistake.”
❖ IMPLIED REVOCATION THRU WILLS b. Example: T made a will making A his heir. T then
learned that A was dead, so he made another will
a. This Article speaks of implied revocation, and instituting B as heir. If A turns out to be still alive,
this may be total or partial. (Partial — if there is who inherits?
inconsistency only in certain provisions.)
ANS.: A inherits, because the revocation was based on a
b. The law does not favor revocation by false cause.
implication, and therefore efforts to reconcile
must be made. c. The fact that the cause for the revocation was a
false belief or a mistake must be found on the
832 A revocation made in a face of the will or codicil itself, i.e., if the
subsequent will shall take effect, revocation is through a will or codicil.
even if the new will should
become inoperative by reason of d. If the testator states in his second will: “I am not
the incapacity of the heirs, sure whether A is dead or still alive. However, I
devisees or legatees designated hereby revoke the legacy to him which I made in
therein, or by their renunciation. my first will.” Is there a revocation of the legacy?
(740a)
ANS.: Yes. For here, he cannot be said to be proceeding
❖ EFFECT ON REVOCATION IF NEW WILL IS upon an error.
INOPERATIVE
834 The recognition of an illegitimate
a. There is a difference between an invalid will, and child does not lose its legal effect,
a valid but ineffective will. even though the will wherein it
was made should be revoked.
b. We already know that an invalid revoking will
cannot revoke. But a valid though ineffective will ❖ EFFECT OF REVOCATION ON THE RECOGNITION OF
can revoke. AN ILLEGITIMATE CHILD
c. Example: T made a will making X his heir. Later, a. According to Art. 278, voluntary recognition of
T expressly revoked his fi rst will by executing a an illegitimate child may be done:
second will containing a revocatory clause. T
made Y his heir. The second will was validly 1. in a record of birth
made, but on T’s death, Y refused to accept the 2. will
inheritance. Is the first will still revoked?
3. statement before a court of record
ANS.: Yes. (Art. 832). Therefore, T will be considered to
have died intestate, and X cannot inherit, except, if he be 4. any authentic writing
also one of the intestate heirs. Now then, if the will in which recognition had been made
d. If the revoking will is both invalid and ineffective, is subsequently revoked, the recognition still remains
it is clear that there can be no revocation. valid

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 SUCCESSION | LDCS

b. Reason for Art. 834: While a will is essentially The procedure outlined in Sec. 1 of Rule 74 of the Rules of
revocable, recognition is irrevocable (unless Court is an ex parte proceeding — persons who do not
there be vitiated consent). participate or had no notice of an extrajudicial settlement
will not be bound thereby.]
Moreover —
836 The execution of a codicil referring to a
1. recognition is not really a testamentary
previous will has the effect of republishing the
disposition;
will as modified by the codicil.
2. recognition does not wait for the testator’s ❖ REQUSIITES AND LIMITATIONS OF REPUBLICATION
death to become effective. a. To republish a will void as to its FORM, all the
dispositions must be reproduced or copied in the
[NOTE: Art. 834 applies only if the recognizing will is new or subsequent will
extrinsically valid — otherwise there would be no
recognition that can be revoked.]. Example: T made a notarial will in 2002 with only 2
attesting witnesses. This will is void as to its form and is
therefore useless. If he desires to give life to the will, say
Subsection 7. — REPUBLICATION AND REVIVAL OF in 2004, what he should do is to republish it. How? By
WILLS executing a new will in 2001, copying all the provisions in
the old will, but this time, he must use three attesting
835 The testator cannot republish, without witnesses. The effect is as if he made the will not in 2002
reproducing in a subsequent will, the but in 2004. In other words, the will is a reestablished act,
dispositions contained in a previous one which and therefore the will governs property he had acquired
is void as to its form. (n) up to 1997.
❖ REPUBLICATION DEFINED
- It is the process of re-establishing a will, which Example of this effect: If in 2002, he gave “all his
has become useless because it was void, or had automobiles” to X, and at that time, T had 5 automobiles,
been revoked. but in 2004, he republished the will, and by that time he
❖ HOW MADE already had eight automobiles, how many should X get?
a. re-execution of the original will (the original ANS.: X gets all the 8 automobiles.
provisions are COPIED)
b. execution of a codicil (also known as implied [NOTE: Please observe that under Art. 793, had the
republication). (See Art. 836). original will been valid, and no republication been made,
❖ INSTANCE WHERE PUBLICATION OF THE X would get only 5 automobiles, even if by the time of T’s
SETTLEMENT DOES NOT CONSTITUTE death, T already had 8 automobiles, unless of course,
‘CONSTRUCTIVE NOTICE’ TO THE HEIRS there was an express contrary provision in the will.]
- notice via publication of the settlement was b. To republish a will valid as to its form but already
made. However, the heirs had no knowledge of revoked, the execution of a codicil which makes
the publication ever been made. reference to the revoked will is suffi cient. (Here,
o It did not constitute constructive notice mere reference is enough: there is no necessity
to the heirs who had no knowledge or
of reproducing all the previous dispositions). (Of
did not take part in it “because the
course, in this case there would be nothing
same,” in the words of the Supreme
wrong with a RE-EXECUTION.)
Court, “is notice after the fact of
execution.” Example: The Case of In Re Engles’ Estate (Or.) 276 p. 270
— T made a will in Feb. 1921, which he revoked later in
[NOTE: In the abovementioned case (Cua v. Vargas, August 1921. In June 1925, he made a codicil to the will
supra), the heirs who actually participated in the of Feb. 1921 (not August), describing the will, giving its
execution of the extrajudicial settlement, which included date, with a formal statement that he was declaring it to
the sale to a third person of their pro indiviso shares in be his last will and testament. The codicil merely referred
the property, are bound by the same while the co-heirs to the will, without reproducing same. Is there suffi cient
who did not participate are given the right to redeem republication?
their shares pursuant to Art. 1088 of the new Civil Code.

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HELD: Yes, and, therefore, the will of Feb. 1921 should be [NOTE: The answer would be the same even if the
given effect. There was no necessity here of reproducing. “ratification” had been made in a public instrument.]
❖ EFFECT OF REPUBLICATION BY VIRTUE OF A b. A testator revoked his will by cutting out his
CODICIL signature in the will, with animo revocandi.
a. The codicil revives the previous will. Later, he changed his mind, and pasted back his
b. The old will is republished as of the date of the signature in its previous position. Does the
codicil — makes it speak, as it were, from the revocation remain or has there been a
new and later date. republication?
[NOTE: See “example of this effect” under Comment No. ANS.: The will remains revoked, the attempted
1(a).]. republication not having complied with legal
requirements for republication
c. A will republished by a codicil is governed by a
statute enacted subsequent to the execution of 837 If after making a will, the testator makes a
the will, but which was operative when the second will expressly revoking the first, the
codicil was executed revocation of the second will does not revive
the first will, which can be revived only by
Example: At the time a notarial will was executed with
another will or codicil. (739a)
two witnesses, the law required three. Suppose later on,
❖ USE OF REPUBLICATION AND REVIVAL
the law changed the required number to two, and
- As has already been intimated, a void will or a
suppose this time a codicil referring to the will is made
revoked one is a nullity, devoid of any effect,
with two (as required) witnesses, is the old will
and is useless. And the only ways of giving effect
republished?
to it are:
ANS.: While it is true that generally a void will (as to its a. republication (this includes both re-execution
form) cannot be republished merely by reference in a and reference by a codicil — already discussed)
later valid codicil, and while it is true that according to b. revival
Art. 795, the validity of a will as to its form depends upon ❖ DISTINCTION BETWEEN REPUBLICATION AND
the observance of the law in force at the time it is made, REVIVAL
still it is submitted that in this particular case, there was a. Republication is an act of the TESTATOR.
a valid republication because of the fact that here, the b. Revival is one that takes place by OPERATION of
defect has been cured. Moreover, from one viewpoint, it LAW. (“Revival” has been defi ned as the
may be said that republication is still part of the process restoration or reestablishment of revoked will
of making, referred to in Art. 795 or revoked provisions thereof, to effectiveness,
by virtue of legal provisions.)
HOWEVER, the general rule may be illustrated thus: if at
the time the codicil was made, the law still requires three [NOTE: Aside from republication and revival, there is no
witnesses, then the codicil, even if it has by itself three other way of restoring effectiveness. Thus, it has been
witnesses, cannot by mere reference, republish the old held that piecing together a torn and revoked will cannot
void will, which had only two witnesses. The way to restore its effectiveness.]
republish such void will is to execute another will (or
❖ EXAMPLES OF REVIVAL
even a codicil) which would REPRODUCE all the previous
a. While omission of a compulsory heir in the
dispositions. (See Art. 835).
institution of heirs annuls the institution, still if
❖ SOME PROBLEMS IN REPUBLICATION the omitted heir dies ahead of the testator, the
a. In 2002, T made a notarial will, without an institution is revived, without prejudice to the
attestation clause. Later on, he made a private right of representation. (See Art. 856).
instrument to the effect that he was ratifying b. If after making a will, the testator makes a
said will. Is there a republication here? second will impliedly revoking the first, the
revocation of the second will revives the first
ANS.: No, since there would be a reproduction of all the will. (Implication from Art. 837)
provisions. Of course, even a holographic will would be ❖ THREE PROBLEMS ON REVIVAL
sufficient, but even here, reproduction is required.

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 SUCCESSION | LDCS

a. I made 3 wills. Will No. 2 expressly revoked Will Subject to the right of appeal, the allowance
No. 1. Will No. 3 revoked Will No. 2. Is Will No. of the will, either during the lifetime of the
1 revived testator or after his death, shall be conclusive
as to its due execution
ANS.: No, by express provision of Art. 837. The rule is
❖ PROBATE DEFINED
based on the principle that the revocatory clause of the
- Probate is the act of proving before a competent
second will took effect immediately or at the instant the
court the due execution of a will by a person
revoking will was made. (This is the principle of
possessed of testamentary capacity, as well as
INSTANTER — thus, we say, the clause revoked the fi rst
approval thereof by said court.
will that contains said clause.) In other words, the theory
- Probate is one thing; the validity of the
is that death does not have to come before giving effect
testamentary provisions is another. The first
to a revocatory clause. Stated otherwise, while a will is a
decides the execution of the document and the
disposition mortis causa, a revocation takes effect, inter
testamentary capacity of the testator; the
vivos.
second deals with descent and distribution.
b. T made 3 wills. Will No. 2 is completely - A final judgment on probated will, albeit
inconsistent with, and therefore, impliedly erroneous, is binding on the whole world.
repeals Will No. 1. Later Will No. 3 revokes Will ❖ TWO KINDS OF PROBATE
No. 2. Is Will No. 1 revived? 1. Probate during the testator’s lifetime
1. this does not prevent the testator from
ANS.: Yes. This is a clear inference from Art. 837. Since revoking his probated will or from making
the Article uses the word “expressly,” it follows a sensu another one
contrario (contrariwise) that in case of an “implied” 2. after a will has been probated during the
revocation by the second will, an automatic revival of the lifetime of a testator, it does not necessarily
fi rst occurs. Apparently, the reason is the fact that an mean that he cannot alter or revoke the
“implied revocation” is ambulatory, the inconsistency same before his death. Should he make a
being truly and actually apparent only mortis causa, new will, it would also be allowable on his
when the properties are distributed. petition, and if he should die before he has
c. A made Will No. 1, then Will No. 2 expressly had a chance to present such petition, the
revoking the first. Then he destroyed Will No. 2, ordinary probate proceedings after the
and orally expressed his desire that his fi rst will testator’s death would be in order
be followed. Should this be allowed? 2. Probate after the testator’s death.
❖ NEED FOR PROBATE
ANS.: No, the oral expression of the desire to revive a. Under the law: no will shall pass either real or
cannot be given effect. He should have made a new will personal property unless it is proved and allowed
or codicil. (Art. 837, see also 65 Am. Jur., Wills, Sec. 621) in accordance with the Rules of Court
3. Even if only one heir has been instituted,
Subsection 8. — ALLOWANCE AND DISALLOWANCE OF
there must still be the judicial order of
WILLS (PROBATE)
adjudication
838 No will shall pass either real or personal 4. Thus in probate proceedings, the court —
property unless it is proved and allowed in a. orders the probate proper of the will
accordance with the Rules of Court. b. grants letters testamentary or
The testator himself may, during his lifetime, letters with a will annexed
petition the court having jurisdiction for the c. hears and approves claims against
allowance of his will. In such the pertinent the estate
provisions of the Rules of Court for the d. orders the payment of the lawful
allowance of wills after the testator’s death debts
shall govern. e. authorizes the sale, mortgage, or
The Supreme Court shall formulate such any other encumbrance of real
additional Rules of Court as may be necessary estate
for the allowance of wills on petition of the
testator.
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 SUCCESSION | LDCS

f. and directs the delivery of the estate ▪ fourthly, because absent

or properties to those who are legatees, and devisees, or such
entitled thereto of them as may have no
5. there is need, aside from liquidating the knowledge of the will could be
conjugal partnership, to set apart the share CHEATED of their inheritance
of the surviving spouse in the conjugal thru the collusion of some of the
property, preparatory to the administration heirs
and liquidation of the estate of the 10. Even if a will is never probated, property
deceased. may be transmitted if a partition agreement
6. distributed the estate of the deceased is entered into, the provisions of which are
erroneously but the decision was not based on the will
appealed - The distribution remains, for the d. It should also be noted that even a void will, or
judgment has become final, and therefore one that has been refused probate (approval by
can no longer be attacked except for lack of the court) may in certain cases give rise to a
jurisdiction or extrinsic fraud. natural obligation. Hence, Art. 1430 says “when
b. provision in a will stating that “the will shall not a will is declared void because it has not been
be presented before the courts” is a void executed in accordance with the formalities
provision, for a person cannot by his actuations required by law, but one of the intestate heirs,
deprive a competent court of its jurisdiction after the settlement of the debts of the
c. the heirs concerned may extrajudicially agree to deceased, pays a legacy in compliance with a
partition the property among them, even though clause in the defective will, the payment is
such partition is not in accordance with the effective and irrevocable.”
provisions of the will 11. Where part of estate is not distributed yet,
7. ownership is acquired not only by recourse is not to reopen probate
testamentary succession, but by legal proceedings, but a motion for execution or
succession. If any heir not included in the an action for reconveyance. A probate
partition feels aggrieved, his remedy would judgment long closed cannot be attacked
of course be to ask for the probate of the by a mere motion for reconsideration.
will. Failure to attack the original of the will to
8. Even if there are NO DEBTS, if the heirs the petition is not critical where the will
desire that transmission of the property to itself was adduced in evidence. Otherwise
them be by virtue of the will, the will must stated, it is not necessary to attack the
first be probated, and the provisions in the original will to the petition for probate.
will must not be disregarded unless said 12. probate court still has jurisdiction to
provisions are contrary to law. approve the inventory of the estate of the
9. The probate is essential deceased, even after the lapse of the 3-
▪ firstly, because the law month period mentioned in Section 1, Rule
expressly requires it; 83 of the Rules of Court.
▪ secondly, probate is a 13. The distributive shares cannot be given
proceeding in rem (requiring unless the state tax is first paid, or unless
publication, among other there be a sufficient bond given for the
things) and, therefore, cannot payment of the tax.
be dispensed with or 14. A probate court’s jurisdiction is not limited
substituted by any other to the determination of who the heirs are
proceeding, judicial or and what shares are due them as regards
extrajudicial without offending the estate of a deceased person. Neither is
public policy; it confined to the issue of the validity of
▪ thirdly, the right of a person to wills. Parenthetically, questions of title
dispose of his property by virtue pertaining to the determination prima facie
of a will may be rendered of whether certain properties ought to be
nugatory; and included or excluded from the inventory
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 SUCCESSION | LDCS

and accounting of the estate subject of a - This is true whether or not the petitioner
petition for letters of administration, may (proponent) has the will in his possession, or it is
be resolved by the probate court. in somebody else’s possession, or has been lost
15. As a general rule, courts in probate or destroyed, as long as there was no animo
proceedings are limited only to passing revocandi
upon the extrinsic validity of the will sought
to be probated and the compliance with the [NOTE: An expressly revoked will is of course not
requisites or solemnities prescribed by law. admissible to probate. However, a revoked will may of
Well-entrenched is the rule that a co-owner course be admitted to probate, if the subsequent will that
can only alienate his pro indiviso share in had allegedly revoked it is proved to be void and is
the co-owned property. therefore disallowed.]
❖ OTHER NAMES FOR PROBATE - Even if a will has already been probated, if later
- Probate may also be called “probation,’’ on a subsequent will is discovered, the latter may
“legalization,’’ “protocolization,’’ and still be presented for a probate
“authentication.”
❖ PROCEDURE AND REASON FOR “ANTE MORTEM” [NOTE: Even if the discovered will had been made earlier
PROBATE than the probated will, it can still be probated as long as
a. Testator himself petitions the competent court the two wills can be reconciled, or if there are portions in
for the probate of his will. the first which have not been revoked in the second.]
b. He then follows the procedure for the post - The petition for probate must among other
mortem of ordinary probate, except insofar as things state:
the Supreme Court may impose additional rules a. The fact that the testator is dead, and the
for ante mortem probates (Art. 838, second and place and time of said death;
third pars). b. The fact that the deceased left a will, copy of
[NOTE: Up to the time of writing, no additional rules have which has to be attached to the petition;
been formulated.]. c. The fact that the will was executed in
accordance with legal requirements;
c. Reason for allowing this kind of probate — to d. Names, ages, addresses of the executor and
prevent or minimize fraud, intimidation, and all interested parties or heirs;
undue influence; also to enable the testator to e. The probable value and character of the
correct at once failure to observe legal property of the estate;
requirements. f. The name of the individual whose
- it was held that even when the testatrix herself appointment as executor is being asked for;
has brought the probate proceedings, whenever g. If the will has not been delivered to the
the will falls short of the required formalities, the court, the name of the person who is
remedy would be to correct the will immediately supposed to have the will in his custody
and not to proceed with the probate of the - In court, there must be proof of death (actual or
defective will presumed), publication of the notice of hearing,
❖ SALIENT POINTS IN PROCEDURES OF THE POST- and the compliance of all the formalities
MORTEM PROBATE required by law.
- There are 2 parts: - The necessary witnesses must be produced if
a. Probate proper (this deals with EXTRINSIC available, and their absence must be
VALIDITY) satisfactorily explained
b. The inquiry into INTRINSIC VALIDITY and the 1. Even if an attesting witness does not
DISTRIBUTION itself of the property remember attesting (Rule 76, Sec. 11) or
- At any time after the testator dies, the will may even if he testifies or all the witnesses
be presented for probate by any executor, testify against the validity and due
devisee, legatee, or interested person. (Rule 76, execution of the will, there is still a chance
Sec. 1, Rules of Court). The court can motu for the court to allow the will, if it believes
proprio set the time and place for proving the that all the legal requirements have been
will delivered to it. complied with
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 SUCCESSION | LDCS

2. It is error to deny allowance just because of interlocutory and is, therefore, immediately
contradictions among the witnesses. appealable
3. However, as a rule, the testimony of the - An order determining the distributive share of
attesting witnesses should prevail over the estate to which a person is entitled is, of
expert evidence course, appealable, before final judgment.
- A lost or destroyed notarial will, destroyed 1. In no case is the judgment conclusive on
without animo revocandi, may still be probated matters such as ownership of property.
as long as it is clearly proved that once upon a - However, persons who are neither compulsory
time, a will had been validly executed, that the heirs, voluntary heirs, legatees, or devisees
will had been lost or destroyed without animo cannot question anymore the validity of the
revocandi. Two credible witnesses must then order of distribution that has long become FINAL
testify as to its contents
[NOTE: The proceeding for distribution of the properties
[NOTE: These things must still be proved by the is NOT in rem, and cannot affect those who were not
proponent even if there is NO opposition to the probate PERSONALLY served with summons.].
of the lost or destroyed will. The provisions of the will
are then supposed to be certified to by the judge under [NOTE: Distribution is defined as the division, by order
the seal of the court. Said certifi cate must then be fi led of the court having authority, among those entitled
and recorded as in the case of other wills. (Sec. 6, Rule thereto, of the estate of a person, after the payment of
76, Rules of Court).] debts and charges.].
-If the probate of a will is dismissed because the ❖ ILLUSTRATIVE QUESTIONS AND CASES REGARDING
proponent or his counsel failed to appear, a EFFECT OF PROBATE
subsequent petition for probate may still be - To be conclusive, the probate must have been
entertained. After all, the first dismissal was NOT conducted by a competent court with full
an adjudication on the merits. Besides, the rights jurisdiction. What is that court?
of other persons must be protected. ANS.: The Regional Trial Court of the province —
- It is well-settled that for a person to be able to 1. where he has real estate (in case of NON-
intervene in an administration proceeding, it is RESIDENT testator).
necessary for him to be interested in the estate 2. where he resided at the time of his death
to be administered. An interested party has been (in case of a RESIDENT testator). [NOTE,
defi ned as one who would be benefi ted by the however, that all Courts of First Instance
estate, such as an heir, or one who has a certain (now RTC) have jurisdiction. The residence
claim against the estate, such as a creditor. or domicile of the testator affects only the
1. one who has or can have no interest in VENUE, but NOT the JURISDICTION of the
succeeding a decedent cannot oppose the Court. The rule grants jurisdiction to the
probate of his alleged will. Court where jurisdiction is first INVOKED,
❖ EFFECT OF PROBATE PROPER (EXTRINSIC VALIDITY) without taking VENUE into account.
- As long as there has been FINAL JUDGMENT by a - Moreover, it is essential that:
court of COMPETENT JURISDICTION, and the 1. it be proved before the court that he died
period for filing a petition for relief (Rule 38, after having executed a will (in case of post
Secs. 2 and 3, Rules of Court) has expired without mortem probate)
such petition having been submitted, the 2. and that the will has already been delivered
PROBATE PROPER (or allowance) of the will is to the Court.
binding upon the WHOLE WORLD (being a - The CFI (RTC) allowed a will, stating among other
proceeding in rem) insofar as TESTAMENTARY things that testator was of sound mind. The case
CAPACITY (at least 18; sound mind) and DUE was appealed to the Supreme Court. May the
EXECUTION (including all formalities and Supreme Court disallow the will and reverse the
absence of any ground for disallowance) are CFI (RTC), or is the decision of the CFI (RTC)
concerned. (See Art. 838, last paragraph). In fact, binding insofar as testamentary capacity and due
the order allowing probate of the will is not execution are concerned?

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 SUCCESSION | LDCS

ANS.: The Supreme Court can of course reverse 3. impairment of the legitime.
the CFI (RTC), and disallow the will, because after 4. declaring a certain woman to be the true
all, there was no final judgment yet. The law wife of the testator.
speaks of a conclusive judgment, “subject to the 5. partitioning of conjugal properties.
right of appeal.” (Art. 838, last paragraph). 6. right of a widow to the inheritance.
7. titles to property, and annulment of alleged
[NOTE: Had there been no appeal, and no petition for fraudulent sales. (According to the court,
relief, or if the periods for said remedies have already one reason for avoiding this in summary
expired, no court, not even the Supreme Court, can proceedings particularly is to minimize
reverse the ruling of the probate court regarding expenses, so much that even the
testamentary capacity and due execution.] appointment of an administrator in
- As has been noted, the fi nal judgment on a summary proceedings is dispensed with
probate may be set aside by a petition for relief ❖ NO PRESCPRITION PERIOD FOR INSTITUTING
brought within the legal period. Under Rule 38, PROBATE PROCEEDING
Sec. 1 of the Rules of Court, when a judgment or - The Statute of Limitations fixes time limits for the
order is entered against a party in the Court of fi ling of “civil actions’’ but not for “special
First Instance (now Regional Trial Court) thru proceedings’’ of which a probate is admittedly
FAME (fraud, accident, mistake, or excusable one. The distinction is not merely verbal or a
negligence), he may fi le a petition in the same matter of terminology, for there are differences
court and in the same cause, asking that the between the two. Probate proceedings are not
judgment, order, or proceeds be set aside. exclusively established in the interest of the
PERIODS — the petition has to be fi led: surviving heirs but primarily for the protection of
1. within sixty (60) days after the petitioner the testator’s expressed wishes that are entitled
learns of the judgment or order to be set to respect as an effect of ownership and of the
aside; right of disposition. If the probate of validly
2. and within six (6) months after such order executed wills is required by public policy, the
or judgment was entered. Should the State could not have intended the Statute of
period lapse, the judgment now really Limitations to defeat that policy. Hence, the will
becomes FINALLY FINAL. may still be admitted to probate.
- In the settlement of estates, what are usually ❖ ESTOPPEL NOT APPLICABLE IN PROBATE
done? PROCEEDINGS
ANS.: - The rule of estoppel does not apply to probate
1. First, proof of testamentary capacity and proceedings for they are invested with public
due execution are presented, and the court interest, and if estoppel would be applied, the
then issues an order allowing or disallowing ascertainment of the truth may be blocked. This
the will. should be avoided for the primary purpose of a
2. After this is done, the distribution of the probate is not the protection of the interest of
estate may be done, after all questions on living persons.
intrinsic validity are disposed of. ❖ SOME RULES OF PLEADINGS NOT APPLICABLE TO
PROBATE PROCEEDING BECAUSE THE ISSUES ARE
[NOTE: The fi rst part is really different from the second FIXED BY LAW AND NOT BY THE PARTIES
part. The first is concerned only with testamentary - True, the general rule is that the pleadings are
capacity and due execution. Other matters are generally fixed from the issues, and no evidence can be
irrelevant. After the probate order is made, same may be introduced in support of allegations not found in
appealed within the proper period.] the pleadings. But in the instant case, it is the law
- The following points, among others, should NOT that fixes the issues (which are the grounds for
be included in the probate order, since they disallowance), and therefore every ground of
affect intrinsic validity: attack on the validity of a will may be used.
1. exclusion of the widow from the ❖ REQUIREMENTS BEFORE DISTRIBUTION OF
inheritance. PROPERTIES
2. disinheritance of a daughter.
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 SUCCESSION | LDCS

a. First, there must be a decree of partition COMPETENCY PROCEEDINGS ARE PENDING IN THE
allocating property to each heir. PROBATE COURT
b. Then, payment of the estate tax is required. - The purpose of the prohibition is to avoid rulings
c. Finally, the distributive shares may be delivered that would conflict with each other. In the
meantime, the guardianship case must be
[NOTE: It is important to note that according to the suspended
Supreme Court — a project of partition, although made ❖ A WILL IS ESSENTIALLY AMBULATORY
and subscribed by all the heirs, and so, ordinarily binding - will is essentially ambulatory; at any time prior to
on them, even when approved by the probate court, does the testator’s death, it may be changed or
NOT mean that said court is thereafter divested of revoked; and until admitted to probate, it has no
jurisdiction over the same. If later, especially within a effect whatever and no right can be claimed
reasonable time after the approval of said partition, it is thereunder, the law being quite explicit: “No will
proved that in obtaining approval, fraud had been shall pass either real or personal property unless
practiced, the probate court may still modify or even set
it is proved and allowed in accordance with the
aside the order approving the partition]. Rules of Court.’
[NOTE: Even if there be only one heir instituted, there ❖ MATTERS THAT SHOULD BE BROUGHT UP BEFORE
must still be a judicial order of adjudication. The order is THE PROBATE COURT
the judicial recognition that in appointing the heir, the a. determination of heirs;
deceased did not contravene the law, and that the heir b. proof of filiation;
was in no way disqualifi ed to inherit; just as a final order c. determination of estate of decedent; and
admitting a will to probate excludes all and sundry from d. claims thereto
thereafter contending that the statutory formal
839 The will shall be disallowed in any of the
requisites have not been observed in executing the
following cases:
testament.]
(1) If the formalities required by law have not
❖ RULE WHEN THE DECEASED WAS A DEFENDANT IN been complied with;
A MONEY CLAIM (2) If the testator was insane, or otherwise
- The case should be dismissed, and then refi led mentally incapable of making a will, at the
with the probate court. The counter-claim will time of its execution;
also be decided by the probate court. (Had the (3) If it was executed through force or under
claim been one that survives, e.g., a tort action, duress, or the influence of fear, or threats;
the same must be CONTINUED in the ordinary (4) If it was procured by undue and improper
court, not in the probate court.) pressure and influence, on the part of the
❖ TERMINATION OF PROBATE PROCEEDINGS beneficiary or of some other
- Probate proceedings are considered terminated person;
upon the approval by the probate court of the (5) If the signature of the testator was
project of partition, the granting of the petition procured by fraud;
to close the proceedings, and the consequent (6) If the testator acted by mistake or did not
issuance of the order of distribution directing the intend that the instrument he signed should
delivery of the properties to the heirs in be his will at the time of affixing his signature
accordance with the adjudication made in the thereto
will ❖ GROUNDS FOR DISALLOWANCE OF WILL
- The failure to fi le with the Register of Deeds a - The grounds given in Art. 839 are exclusive, thus,
certified copy of the letters of administration no other ground can serve to disallow a will.
and of the will, and to record the attested copies
NOTE: Grounds of (1) formalities and (2) insanity, have
of the will, and the allowance thereof by the
been discussed on the subject of testamentary capacity
court, does NOT NEGATE the validity of the
and formalities required.
judgment or decree of probate or the rights of
the heirs and devisees under the will. NOTE: If the signature of the supposed testator has been
❖ ROLE OF JUVENILE AND DOMESTIC RELATIONS firmly written in a practically straight line, and the
COURT (NOW IN A REGIONAL TRIAL COURT) WHILE testator is an 82-year-old cripple with the entire left half

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 SUCCESSION | LDCS

of his body paralyzed, the chances are the alleged - undue influence present just because blood
signatures are not really his. relatives, other than compulsory heirs, have
been omitted, for while blood ties are strong in
❖ THE GROUND OF FORCE, DURESS, OR THREAT the Philippines, it is the testator’s right to
a. These grounds connote the idea of coercion, disregard non-compulsory heirs.
mental or physical. (1 Page on Wills, p. 393). - Neither is undue influence present when a
b. While their presence in a contract renders it daughter tries by earnest persuasion and
voidable (and therefore susceptible of ratifi entreaty to make her mother make a new will.
cation), their presence in a will renders the will - Testamentary disposition that the heirs should
VOID. not inquire into other property, and that they
❖ GROUND OF UNDUE AND IMPROPER PRESSURE should respect the distribution made in the will,
AND INFLUENCE under penalty of forfeiture of their shares in the
- Undue influence connotes the idea of coercion free disposal, do not suffice to prove undue
by virtue of which the judgment of the testator
influence or fraud. Said dispositions appear
is displaced, and he is induced to do that which motivated by the desire to prevent prolonged
he otherwise would not have done. (Gardner, p. litigation which, as shown by ordinary
154). It is present when he does something experience, often results in a sizeable portion of
because of fear or a desire for peace or from any the estate being diverted into the hands of non-
other feeling which he is unable to resist. The heirs and speculators. Whether these clauses are
Civil Code says that “there is undue influence valid or not is a matter to be litigated upon on
when a person takes improper advantage of hiS another occasion. But if there are other facts
power over the will of another, depriving the
which explain the disparity of a distribution, a
latter of a reasonable freedom of choice. The prima facie case of undue influence may be
following circumstances shall be considered. The shown, in which event, the proponent of the will
confidential, family, spiritual and other relations has to prove the non-existence of the undue
between the parties, or the fact that the person influence
alleged to have been unduly influenced was - If undue influence has vitiated only some of the
suffering from mental weakness, or was dispositions, the rest should be considered valid
ignorant, or in financial distress.” (Art. 1337). ❖ THE GROUND OF FRAUD
- He who alleges undue influence must prove the a. Fraud is the use of insidious machinations to
same convince a person to do what ordinarily he
- There is no undue influence just because a
would not have done. For fraud to vitiate a will,
testator has made his mistress, or his illegitimate
there must be intent to defraud. This intent, and
child by her, the heir to the entire free portion. the nature of the fraud, must be proved of
Mere affection, even if illegitimate, is not undue course
influence, as long as the giving was voluntary b. Fraud in a contract renders it voidable; in a will,
[NOTE: Though such a will may be admitted to probate same is cause for disallowance because the will
because of the absence of undue influence, still under the is void
law, a mistress is incapacitated to inherit. (See Art. 1028 c. It should be noted that when a beneficiary is the
in relation to Art. 739).]. person who prepared or drafted the will, a
suspicion is created that fraud or undue
- Mere inequality, no matter how great, in influence was exercised. It should be observed,
distributing the estate is not evidence of undue however, that such suspicion can be thrown
infl uence. aside, if the court is fully convinced that the
- Mere presence of favored relatives at the time of document expresses the true will of the testator.
the execution of the will does not necessarily d. Fraud and undue infl uence are mutually
mean undue influence. repugnant and exclude each other; their joining
- The fact that some heirs are more favored than as grounds for opposing probate shows the
others is proof of neither fraud or undue absence of definite evidence against the validity
influence. of the will.

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 SUCCESSION | LDCS

❖ THE GROUND OF MISTAKE OR LACK OF property in a place other than the

TESTAMENTARY INTENT INSOFAR AS THE Philippines. Of course, there will be a
DOCUMENT IS CONCERNED hearing on whether or not there was such a
- A man signed a document not believing it to be probate.
a will. This mistake is a ground for disallowance 2. If no such foreign probate has been made,
❖ DISTINCTIONS BETWEEN REVOCATION AND the ordinary probate procedure is required.
DISALLOWANCE OR NULLITY Moreover, it must be shown that the
- Revocation is a voluntary act of the testator, foreign will has been validly executed. It has
while disallowance is given by judicial order. been held in this connection that an alleged
- Revocation is with or without cause; foreign probate cannot be deemed one
disallowance must always be for a legal cause. unless it is shown that the court was a duly
- Revocation may be partial or total, while authorized probate court and that the
disallowance as a rule is always total (except entire probate procedure there had been
when the ground of fraud or undue influence for complied with
example affects only certain portions of the will
❖ ALLOWANCE OF WILLS PROVED OUTSIDE OF THE Section 2
PHILIPPINES (SEE RULE 77, REVISED RULES OF INSTITUTION OF HEIR
COURT)
a. Will proved outside the Philippines may be 840 Institution of heir is an act by virtue of which
allowed here. — Wills proved and allowed in a a testator designates in his will the person or
foreign country, according to the laws of such persons who are to succeed him in his
country, may be allowed, fi led and recorded by property and transmissible rights and
the proper Court of First Instance (now Regional obligations.
Trial Court) in the Philippines. (Rule 77, Sec. 1, ❖ INSTITUTION OF HEIR DEFINED
Rules of Court). - Art. 840 defi nes institution of an heir.
- Notice of hearing for allowance. — When a copy a. Institution being a voluntary act, cannot be
of such will and of the order or decree of the allowed to affect the legitime.
allowance thereof, both duly authenticated, are b. In general, the provisions on “institution”
fi led with a petition for allowance in the are applicable to devises and legacies.
Philippines, by the executor or other person c. There can be an instituted heir only in
interested, in the court having jurisdiction, such testamentary succession (for the heir in
court shall fi x a time and place for the hearing, intestate succession is called legal or
and cause notice thereof to be given as in case of intestate heir).
an original will presented for allowance. (Rule d. A conceived child may be instituted, if the
77, Sec. 2, Rules of Court). conditions in Arts. 40 and 41 are present.
- When will allowed, and effect thereof. — If it (Art. 1025).
appears at the hearing that the will should be ❖ REQUISITES FOR A VALID INSTITUTION
allowed in the Philippines, the court shall so a. The will must be EXTRINSICALLY VALID. (Hence,
allow it, and a certificate of its allowance, signed the testator must be capacitated, the formalities
by the judge, and attested by the seal of the must be observed, there must be no vitiated
court, to which shall be attached a copy of the consent, the will must have been duly probated,
will, shall be fi led and recorded by the clerk, and the will must have been the personal act of the
the will shall have the same effect as if originally testator)
proved and allowed in such court. (Rule 77, Sec. b. The institution must be valid INTRINSICALLY.
3, Rules of Court). (The legitime must not be impaired, the heir
b. As has been said before- must be certain or ascertainable; there should be
1. If a foreign will has already been probated no preterition)
in a foreign country, all that is needed is to c. The institution must be EFFECTIVE (no
prove the fact that there has already been predecease, no repudiation by the heir, no
a foreign probate of a will allowable in the incapacity of the heir)
Philippines and that the deceased left
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 SUCCESSION | LDCS

[NOTE: In the proper case, there can be institution in a One who has compulsory heirs may dispose of
marriage settlement. (See Art. 130).] his estate provided he does not contravene
the provisions of this Code with regard to the
❖ WHEN IS ADJUDICATION BY AN HEIR OF THE
legitime of said heirs.
DECEDENT’S ENTIRE ESTATE TO HIMSELF BY MEANS
❖ RULE FOR FREEDOM OF DISPOSITION OF ESTATE
OF AN AFFI DAVIT ALLOWED?
a. If one has no compulsory heirs:
- Only if he is the sole heir of the estate.
1. He can give his estate or any portion
❖ QUERY
thereof to anybody qualified to inherit from
- while the co-heirs who did not participate are
him (his corpse cannot be given except for
given the right to redeem their shares pursuant
scientific or educational purposes).
to Art. 1088 of the new Civil Code.
2. BUT he must respect the restrictions
841 A will shall be valid even though it should not imposed by special laws. (Example: If an
contain an institution of an heir, or such applicant or grantee of a homestead dies
institution should not comprise the entire before the issuance of the patent, his rights
estate, and even though the person so thereto can be given only to his surviving
instituted should not accept the inheritance or spouse)
should be incapacitated to succeed. b. If one has compulsory heirs (those who cannot
In such cases the testamentary dispositions be deprived of their legitimes, like a legitimate
made in accordance with law shall be child, or an acknowledged natural child) —
complied with and the remainder of the estate 1. he must respect the legitimes (unless there
shall pass to the legal heirs. (764) be a valid cause for an express
❖ NON-NECESSITY OF INSTITUTION OF HEIR disinheritance);
- A will, unless otherwise defective, is valid, even 2. the free portion can, however, be given to
if: anybody (including of course the compulsory
a. there is no institution of heir (This was heirs), provided always that restrictions of
needed before because somebody had to special laws are complied with
take care of the debts of the decedent, even ❖ NECESSITY OF ADJUDICATION
beyond the value of the inheritance). - Even if only one heir is instituted, there must still
b. the instituted heir is given only a portion of be a judicial order of adjudication. The order of
the estate (Reason: Mixed succession is adjudication is the judicial recognition that in
allowed) instituting the heir, the deceased did not
c. the heir instituted should repudiate or be contravene the law, and that the heir was in no
incapacitated to inherit (because the law has way disqualified to inherit
provided particular provisions for said
843 The testator shall designate the heir by his
cases). (See Art. 184).
name and surname, and when there are two
❖ ILLUSTRATIVE EXAMPLES
persons having the same names, he shall
a. T died, giving nothing in his will to his brother B,
indicate some circumstance by which the
and instituting his friend F. If F refuses to accept,
instituted heir may be known.
or is disqualified to inherit, B as sole legal heir
Even though the testator may have omitted
gets the estate without prejudice to the
the name of the heir, should he designate him
remaining effective provisions of the will.
in such manner that there can be no doubt as
b. A will can be given effect even if the only
to who has been instituted, the institution
provision therein is for the appointment of an
shall be valid.
executor, or the disinheritance of a compulsory
❖ HOWDESIGNATION OF HEIR IS MADE
heir
- Allowable institutions:
842 One who has no compulsory heirs may a. to “Edgie Boy Paras”
dispose by will of all his estate or any part of it b. to “Adobo” or “Pacitos” (if this be the
in favor of any person having capacity to nickname of the heir intended, and the
succeed. testator knows him by such name).
c. to “my friend, Liwayway”

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 SUCCESSION | LDCS

d. to “my brother” (if there be only one) ❖ EFFECT OF MISREPRESENTATION

e. to “the children of my friend Guitarist Chet - Misdescription may be corrected even by
Atkins” (this is all right, even if the names of extrinsic evidence (“any other manner”) (See 6
the children be omitted) Sanchez Roman 601) but NOT by oral
❖ EFFECT OF DOUBT declarations of the testator. (Art. 789)
- In the following cases, no one inherits because ❖ EXAMPLE OF SECOND PARAGRAPH OF THIS ART
there is avdoubt as to who is being instituted: - “My stout cousin, Jorge.” If there be three stout
a. “to my classmate in IV-A, Jose” (if there be cousins named Jorge, the impossibility of identifi
two Joses) cation renders the institution void; hence, no
b. “to my brother-in-law who is studying one will get.
Criminology” (if there be two such brothers-
in-law) [NOTE: If there are no other legal heirs but the 3 cousins,
they may still all get, not as instituted heirs, but as legal
[Query: Why not give each of them half? ANS.: This is heirs, provided they are within the 5th degree of
wrong because only one was intended by the testator. To relationship.]
divide would be to frustrate his intention moreover, we
would be giving one-half to a person to whom the 845 Every disposition in favor of an unknown
testator intended to give nothing.] person shall be void, unless by some event or
circumstance his identity becomes certain.
[NOTE: Had the provision been phrased “to my brothers- However, a disposition in favor of a definite
in-law who are studying Criminology,” it is clear that both class or group of persons shall be valid
were intended and therefore, each is entitled to one- ❖ EXAMPLE OF DISPOSITION IN FAVOR UNKNOWN
half.]. PERSON
a. A instituted “my friend.” If A has many friends,
844 An error in the name, surname, or
the disposition is void, for lack of certainty.
circumstances of the heir shall not vitiate the
b. A instituted “my student in IV-A who will get the
institution when it is possible, in any other
highest grade in Civil Law among his classmates
manner, to know with certainty the person
in the bar of 2004.” This is valid because of the
instituted.
determining circumstance
If among persons having the same names and
❖ UNKNOWN PERSON DEFINED
surnames, there is a similarity of
- “Unknown person” means one who cannot be
circumstances in such a way that, even with
identified from the will; not one who is a stranger
the use of other proof, the person instituted
to the testator.
cannot be identified, none of them shall be an
- The determining event or circumstance may
heir
occur before or after the testator’s death. This is
❖ EFFECT OF ERROR so, since the law does not distinguish. Moreover,
- Mere error in designation of name or a contrary doctrine would frustrate the
circumstances is NOT important as long as the testator’s will.
intent is clear, and there is positive identifi
cation. NOTE: In some cases, the institution is VOID even if an
- Examples: identifying event or circumstance will occur.
a. “My brother, Eduardo” will mean “my
brother, Edgardo” if there is no brother a. “the 2003 C.P.A. exams topnotcher” — if said
named Eduardo, and one brother named topnotcher be incapacitated to inherit.
Edgardo. b. “the fi rst child of my sister Susan” — if at the
b. “Enrique, Gloria and Ramon del Rosario, testator’s death, said child had not even been
natural children of Don Clemente del conceived yet. (See Art. 1025).
Rosario” — here, Enrique and Ramon will c. “the person whom my wife will designate a week
inherit, even if they are not natural children, after my death.” (See Art. 785).
for this latter circumstance is merely an d. “the 2003 bar topnotcher provided that my wife
additional description of persons already agrees.’’ (See Art. 786).
well-identified ❖ EXAMPLE OF CLASS INSTITUTION

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 SUCCESSION | LDCS

-“All the Ateneo fourth year law students for the b. Institution of a voluntary heir (not compulsory
school year 2003-2004.’’ This is valid provided all heir) to the legitime is of course VOID.].
are capacitated: those incapacitated will
naturally not inherit. Example:
❖ SPECIAL KINDS OF CLASSINSTITUTION T instituted A (his son), B, and C, to an estate of
a. of the poor in general. (Art. 1030). P300,000. A gets as legitime 1/2 of the estate or
b. relatives of the testator. (Art. 959). P150,000. The remaining P150,000 will be divided
c. a person and his children. (Art. 849). equally among A, B, and C. Thus, A gets a total of
d. brothers and sisters of the full and half-blood P200,000 – P150,000 as legitime, P50,000 as instituted
(Art. 848). heir.
e. the institution of descendants or relatives of
legatee. (The rule of “nearest excludes the [NOTE: Had T expressly stated that A would get only his
farther’’ will NOT apply here. Therefore, all the legitime of P150,000, the answer would have been
descendants and relatives will inherit per capita different, since here, his intention is clear.]

NOTE: Remember that “the testator may entrust to a ❖ SPECIAL CASES

third person the distribution of specifi c property or sums a. All are voluntary heirs, but the shares of some
of money that he may leave in general to specifi ed are designated, while the shares of the others
classes or causes, and also the designation of the are not.
persons, institutions, or establishments to which such - Example:
property or sums of money are to be given or applied.’’ A, B, C, and D are instituted, but A is given
(Art. 786). specifically a share of 1/10 only. What should be
done with the remaining 9/10?
846 Heirs instituted without designation of shares
shall inherit in equal parts ANS.: The remainder will be divided equally among the
❖ INSTITUTUION WITHOUT DESIGNATION OF HEIRS remaining three (B, C, and D).
- The law merely expresses what it presumes to b. All are voluntary heirs but specific properties of
have been the testator’s intention, for had he the estate have been given to them as part of
desired otherwise, he should have been more their share
specific. - Example:
NOTE: The term “issues’’ or “descendants,’’ unexplained A, B, and C were instituted heirs to an estate
by anything in the context of the instrument, means ALL totally valued at P300,000 but it was specifi cally
persons descending lineally from another, to the provided that the piano (in the estate) worth
remotest degree, and includes persons so descended, P10,000 should go to A, and a diamond ring (also
even though their own parents are still living; and such in the estate) worth P30,00 must go to B. How
descendants take per capita (per person) and NOT per will the entire estate be divided?
stirpes (by groups) ANS.: Each will receive a total of P100,000.
❖ EXCEPTION TO THE RULE Hence:
- It is believed that the rule in Art. 846 cannot be
applied absolutely in case one of those instituted A gets the P10,000 piano PLUS P90,000
is a compulsory heir, in as much as institution in
B gets the P30,000 ring PLUS P70,000
general refers merely to the free portion (free
disposal). Hence, the legitime must first be C gets P100,000
removed and what remains will be divided
equally. TOTAL = P300,000

[NOTE: [NOTE: It would have been different had the testator

stated that “the car should go to A, the ring to B, and the
a. Institution of a compulsory heir to the legitime is REST would be divided EQUALLY among A, B, and C.’’ It is
VALID but SUPERFLUOUS (unnecessary since by obvious here that C would get only 1/3 of the remaining
law, he is entitled to it). P260,000.].

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 SUCCESSION | LDCS

847 When the testator institutes some heirs Example: “I institute my full-brother and myhalf-brother
individually and others collectively as when he to my estate of P100,000.” Each gets P50,000.
says, “I designate as my heirs A and B, and the
b. Compared with intestate succession
children of C,’’ those collectively designated
- In intestate succession (OLD and NEW Civil
shall be considered as individually instituted,
Codes), the brother of the full-blood gets
unless it clearly appears that the intention of
DOUBLE the share of the brother of the half-
the testator was otherwise. (769a)
blood. (Art. 1006, new Civil Code; Art. 949, old
❖ COMBINATION OF INDIVIDUAL AND COLECTIVE
Civil Code).
INSTITUTION
- Example: “I institute as my heirs A, B, and the 849 When the testator calls to the succession a
three children of C to my estate of P100,000.’’ person and his children, they are all deemed
How much will each of the three children get? to have been instituted simultaneously and
- ANS.: P20,000 each. Reason: Although not successively
collectively designated, they shall be considered ❖ INSTITUTION OF A PERSON AND HIS CHILDREN
individually instituted (estate to be divided into - “His children” refers not to the children of the
5), unless it clearly appears that the testator’s testator, but to the children of the person
intention was otherwise instituted also as an heir.
[NOTE: If the testator had stated “I institute A, B, and my - T instituted A and A’s two children to an estate
three children, to an estate of P300,000,” how much of P30,000. Each of the three heirs gets P10,000
would each child get? all at the same time.

ANS.: We apply here the rule of first giving the children [NOTE: Had the institution been successive, A would get
their legitimes and dividing the balance into 5. Hence, all in the meantime, the children getting nothing during
P150,000 as legitime goes to the children (each getting A’s lifetime.].
P50,000), while the remaining P150,000 will be divided ❖ MEANING OF DEEMED
among the 5 heirs instituted.]. - Deemed” here means presumed, hence, if a
contrary intention is present (that is, to institute
[NOTE: In the case of Nable Jose v. Uson, 27 Phil. 73, it
was held that when the sisters and the nieces of the them successively), said intention must prevail,
testator were instituted, each niece should get as much for the testator’s will, if not illegal, must be
as each sister.] followed.

848 If the testator should institute his brothers 850 The statement of a false cause for the
and sisters, and he has some of full blood and institution of an heir shall be considered as not
others of half blood, the inheritance shall be written, unless it appears from the will that
distributed equally, unless a different the testator would not have made such
institution if he had known the falsity of such
intention appears.
cause. (767a)
❖ INSTITUTION OF BROTHERS AND SISTERS
❖ EFFECT OF FALSE STATEMENT OF A FALSE CAUSE
a. Compared with Civil Code
1. Old Code — In TESTAMENTARY succession, FOR INSTITUTION
the brother of the full blood gets DOUBLE - Stated in 850
the share of brother of the half blood. Example:
(Reason: The affection for him is presumed
to be double the affection for thelatter.) “I hereby institute my student X as my heir for having
2. New Civil Code — In TESTAMENTARY topped the bar examinations of 2003.” If X was not the
succession, the shares are the SAME, unless topnotcher, would he still inherit?
a different intention appears. (Reason: If ANS.: Yes, because the false cause or reason is
indeed the affection is double, the testator considered as not written.
should have given expressly a double share
to the full-blood brother.) [NOTE: What is disregarded is the false cause, not the
institution.].

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 SUCCESSION | LDCS

Reason for the law: The real cause is the testator’s c. Under the present law, it is believed that a
liberality, the mention of the bar topping being merely distinction must be made.
incidental, for even had X topped the bar, the testator 1. If the real motive was illegal, the institution
would not have been bound to reward him, were it not should be void
for the provision in the will.
Example: “I hereby institute X because I want him to kill
NOTE: If the institution had read this way: Y, a college professor.” (To countenance such an
institution would indeed be to encourage immorality.)
“I was about to institute A, my friend, as my heir, but
because I adore bar topnotchers, I hereby institute X, a 2. If the real motive is generosity, liberality, or
stranger, as my heir because he topped the bar of 2003,” affection and the illegal cause is only
the answer would be different, in case X really failed to incidental, the institution should be
top the bar. Here it is evident, from the will itself, that considered valid.
the testator would not have made such institution of X if
he had known of the falsity of the cause. It is obvious, Example: “I hereby institute my cousin X because during
too, that the cause was not mere generosity. the last elections, he was a flying voter.” (Here, it is
evident that the cause is the testator’s affection for his
[NOTE: In the problem presented, would A then inherit? cousin
ANS.: No, for he was NEVER instituted; or was he ever
made a substitute.]. ❖ EFFECT OF ESTRANGEMENT
- Mere estrangement is not a legal ground for the
[NOTE: If children who are invalidly adopted are disqualification of a surviving spouse as an heir
instituted as heirs, the institution should remain valid. As of the deceased spouse.
much as possible, intestacy ought to be avoided, and the
testator’s wishes should be given effect. The allegation 851 If the testator has instituted only one heir, and
that the institution should be void because it was based the institution is limited to an aliquot part of
on a false cause, the testator thinking that they had to be the inheritance, legal succession takes place
instituted because of the adoption, is of no merit with respect to the remainder of the estate.
because there is nothing in the will to indicate that had The same rule applies, if the testator has
the testator known of the invalidity of the adoption, the instituted several heirs each being limited to
institution of the children would not have been made an aliquot part, and all the parts do not cover
the whole inheritance.
❖ EVIDENCE OF INTENT MUST APPEAR IN THE WILL ❖ EFFECT OF INSTITUTION TO A PART OF THE ESTATE
- The fact that the testator would not have made - Art. 851 applies when there is a remainder or
the institution if he had known of the falsity of balance and there is NO INTENT to give all to the
the cause, must appear in the will itself (See Art. instituted heir or heirs. If there is such INTENT,
850; 6 Manresa 99), hence, proof outside the will the remainder should be divided
is not admissible in proving such intent. proportionately, applying Art. 852.
❖ EFFECT OF AN INSTITUTION BECAUSE OF AN - EXAMPLE
ILLEGAL CAUSE a. One heir instituted If the heir is given 3/4,
a. Under the old Civil Code (Art. 767), the illegal the remaining 1/4 should go to the legal
cause, like the false cause, was also disregarded, heirs.
for the reason that the testator is presumed not b. Several heirs instituted T instituted A to 1/3,
to have sincerely ordered that which was and B to 1/4 of the inheritance 1/3 plus 1/4
contrary to law, and therefore void and without = 7/12). The remaining 5/12 will go to the
effect. Thus, the institution was considered valid. legal heirs by way of intestate succession.
b. The new Civil Code is, however, silent on the
point, obviously “because of its immoral and NOTE: Intestate succession will not apply to the
dangerous implications.” remainder if the same has been disposed of by way of
legacies or devises.
[NOTE: If this is the reason, why is a similar provision
found in Art. 873 of the new Code, regarding illegal 852 If it was the intention of the testator that the
conditions?]. instituted heirs should become sole heirs to
the whole estate, or the whole free portion, as
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 SUCCESSION | LDCS

the case may be, and each of them has been b. the omission must be of a COMPULSORY heir
instituted to an aliquot part of the inheritance c. the compulsory heir omitted must be in the
and their aliquot parts together do not cover DIRECT line
the whole inheritance, or the whole free ❖ EFFECT OF PRETERITION
portion, each part shall be increased - The institution of heirs is annulled
proportionately (automatically, without need of court action,
❖ RULE IF INTENT IS TO GIVE ENTIRE ESTATE hence, the proper term should have been “void”)
- Art. 852 applies only if the intent is to give all
Example: T has three sons A, B, and C. T made a will
only to those instituted, otherwise legal
instituting A, B, and a friend F. C was omitted. If the
succession takes place as to the remainder,
estate is P90,000, how should same be distributed?
unless said remainder has been completely
disposed of by way of legacies or devises. In ANS.: Since the institution is annulled, it is as if there was
other words, while Art. 851 provides the general no institution, hence, intestate succession takes place. A,
rule, Art. 852 states the exception. B, and C will each get P30,000. F, the friend, gets nothing.
- “I hereby institute as my only heirs A, B, and C,
each one to get 1/4 of my estate.” The 1/4 still [NOTE: In the problem, it is clear that F was not being
undistributed should clearly be divided made a legatee merely, he was indeed instituted as heir.
proportionately in this particular case, equally It would be error to consider all bequests in favor of
among A, B, and C, since this is the evident strangers as legacies or devises, otherwise there would
intention of the testator. have been no need of the distinction, in effect, made in
Art. 854.].
853 If each of the instituted heirs has been given
an aliquot part of the inheritance, and the [NOTE: If a testator institutes in his holographic will a
parts together exceed the whole inheritance, sister or brother as the only heir, and fails to institute his
or the whole free portion, as the case may be, parents, who are still alive, this is a clear case of
each part shall be reduced proportionally PRETERITION, and the instituted heir should get
❖ EFFECT OF INSTITUTION EXCEEDS ESTATE NOTHING because said institution is void, on account of
- This is the counterpart of Art. 852. In case of the preterition. The total omission of the parents’ names
excess, the share of each must be reduced is not to be regarded as a case of ineffective
proportionately. disinheritance, but a case of preterition.

854 The preterition or omission of one, some, or [NOTE: In a case of preterition, the omitted heir gets his
all of the compulsory heirs in the direct line, share not only of the legitime but also of the free portion.
whether living at the time of the execution of This rule differs from a case of unlawful disinheritance or
the will or born after the death of the testator, incomplete legitime. (Ibid.).]
shall annul the institution of heir; but the - Although the institution of heirs is indeed
devises and legacies shall be valid insofar as annulled, the legacies and devises shall remain
they are not inofficious. valid insofar as they are not inoffi cious. (In other
If the omitted compulsory heirs should die words, they are not voided, but merely reducible
before the testator, the institution shall be if the legitime has been impaired
effectual, without prejudice to the right of
representation. EXAMPLE
❖ PRETERITION DEFINED a. T has two sons, A and B. In T’s will, he gave F, a
- Preterition or pretermission is the omission, friend, P10,000 as a legacy out of an estate of
whether intentional or not, of a compulsory heir P100,000. A and B were omitted. How should the
in the inheritance of a person. estate on T’s death be distributed?
Example: If a testator has three legitimate children, and ANS.: Since the estate is worth P100,000, the free
he institutes only two of them, there is preterition. portion is P50,000. Therefore, the legacy of P10,000 is
❖ REQUISITES FOR PRETERITION not inoffi cious, and should remain effective. The
a. there is a TOTAL omission in the inheritance remaining P90,000 will be divided equally between the

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 SUCCESSION | LDCS

two children. Hence, the estate will be distributed as b. Remember that even if a child has been omitted
follows: in a will, as long as he has received anything by
way, for example, of a donation inter vivos, there
A = P45,000 is NO preterition. This is because the donation is
B = P45,000 an advance of his legitime. If what he received by
way of donation is less than his legitime, there is
F = P10,000 no preterition. He is entitled not to the
P100,000 annulment of the institution of heir but merely
to the completion of his legitime. (See Art. 906).
b. T has two legitimate sons A and B. In T’s will, he c. Moreover, even if the child had not received
gave a friend F a legacy of P10,000; instituted A anything by virtue of a donation, or by virtue of
as heir; and deliberately omitted B. If the estate the will, still if anything is left of the inheritance
is P100,000, how should the estate be which he may get by intestacy, there is no
distributed on T’s death? preterition. Again, if what is left him by intestacy
is less than his legitime, he is entitled to its
ANS.: In view of the preterition, the institution of A is not
completion.
valid, but the legacy is effective, for the legitime has not
d. Thus, it has been said that it is of the essence of
been impaired. Therefore, the remaining P90,000 will be
preterition that there be complete forgetfulness,
divided intestate
not in the will necessarily, but in the inheritance
HENCE: (testate, intestate, or mixed).
e. Ordinarily, in a true case of preterition, Art. 855
A = P45,000 is useless, because the best procedure would be
B = P45,000 (in the absence of legacies or devises) just to
divide the property intestate. And if there be
F = P10,000 allowable legacies or devises, the procedure is
almost the same. Just deduct them, and divide
P100,000
the remainder as an intestacy.
c. In problem No. 2, if the legacy had been P60,000, ❖ EXAMPLE
and the other facts are the same, how would the
T has 3 legitimate children, two of whom he instituted as
estate be distributed?
heirs, and one of whom he preterited. A legacy of
ANS.: The estate being P100,000, the free portion is only P100,000 from an estate of P1,000,000 was given to a
P50,000, hence, the legacy of P60,000 should be reduced friend. How much should the children receive?
by P10,000, leaving the distribution as follows:
ANS.: After deducting the legacy of P100,000 (this is not
A = P25,000 inofficious), the balance of P900,000 is divided equally
among the three heirs, each of whom should get
B = P25,000 P300,000. Thus, the 2 instituted children will not get the
F = P50,000 intended P450,000 each in view of the preterition.

P100,000 [NOTE: Observe that the law says “child or descendant.”

It is believed that same should apply also to an omitted
855 The share of a child or descendant omitted in compulsory heir, even though not a child or descendant.
a will must first be taken from the part of the As a matter of fact, by applying the different provisions,
estate not disposed of by the will, if any; if that providing for shares, we can reach the same conclusion.].
is not sufficient, so much as may be necessary
must be taken proportionally from the shares [NOTE: It should be observed, furthermore, that in case
of the other compulsory heirs. (1080a) of insufficiency, the law says the necessary amount
❖ WHERE SHARE OF OMITTED HEIR MUST BE TAKEN should be “taken proportionally from the shares of the
a. This Article can apply both to cases when there other compulsory heirs.” It is believed that the true
is preterition and when there is no preterition. intent of the law would be to omit the word
“compulsory” between “other” and “heirs” (so as not to
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 SUCCESSION | LDCS

discriminate in favor of instituted voluntary heirs) and -The first paragraph mentions only “heirs,” but
also to add the phrase “given to such heirs by the the principle applies also to a legatee or devisee.
provisions of the will” (so as to prevent the possibility Thus, in one case it was held that a legacy of
that the legitimes would be impaired). Thus, in this way, P2,000 to a brother who dies ahead of the
whatever reduction would be suffered would only be testator cannot be rightfully claimed by the
insofar as institution to the free portion is concerned.] legatee’s heir for there is no transmission of any
right.
856 A voluntary heir who dies before the testator ❖ PREDECEASE OF A COMPULSORY HEIR
transmits nothing to his heirs. - Although the fi rst paragraph says “voluntary
A compulsory heir who dies before the heir,” the principle applies also to a compulsory
testator, a person incapacitated to succeed, heir, notwithstanding the apparent exception in
and one who renounces the inheritance, shall the second paragraph. Even a compulsory heir
transmit no right to his own heirs except in who predeceases the testator transmits no right,
cases expressly provided for in this Code. although of course there is the right of
❖ EFFECT OF PREDECEASE representation. But then, what the law really
- The first paragraph also means that a voluntary means is that instead of the compulsory heir
heir cannot be represented. (6 Manresa 103). getting his legitime, same will be received by his
Example: T has a friend X whom he instituted as heir to heir and representative. He does not transmit,
an estate of P100,000. X dies before T but leaves a son Y. for to transmit is to imply that he is entitled to it
Upon T’s death, will Y get anything? but gives it to his representative. Since he
predeceased, he never was entitled, and
ANS.: No, because X, the father of Y, was a voluntary heir therefore what he could have received is instead
who predeceased the testator. The estate should given, not by him but by the law to the
therefore go to the intestate heirs of T. representative. The same applies to an
incapacitated compulsory heir. A repudiating
❖ PROBLEM ILLUSTRATING THE EFFECTS OF
compulsory heir does not only receive nothing
PREDECEASING THE TESTATOR
but his own heirs are denied the right to
- A and B are legitimate children of T. C is a
represent.
legitimate child of A. The estate is P100,000. A
and B were instituted heirs. [NOTE: It should be remembered that: “The
a. If A dies before T, how much, if any, will C and B representative (the person inheriting by right of
get? representation) does not succeed the person
represented, but the one whom the person represented
ANS.: A was a compulsory heir to the legitime of P25,000.
would have succeeded.]
Therefore, C will get only P25,000 (the legitimeof A) in
representation of A. The remaining P75,000 will all go to Section 3
B. (Arts. 972, 856).
SUBSTITUTION OF HEIRS
b. If A is incapacitated, same answer as (a). (Arts.
972, 698 and 1031). 857 Substitution is the appointment of another
c. If A renounces the inheritance, C gets nothing heir so that he may enter into the inheritance
since a person who renounces an inheritance in default of the heir originally instituted
cannot be represented. (Art. 997). Therefore, ❖ SUBSTITUTION
everything goes to B. (Art. 968). - Substitution otherwise referred to as
conditional institution of heir (6 Manresa 116), is
[NOTE: Remember that in testate succession, the right of the appointment of another heir in default of or
representation covers only the legitime. (Arts. 856, after the heir originally instituted.
1035). In intestate succession, it covers the entire share - Substitution is the designation by the testator of
of the person represented. The whole would descend by a person or persons to take the place of the heir
the rules of intestate succession.] or heirs first instituted.
❖ APPLICABILITY TO LEGATEES AND DEVISEES - Under substitutions, in general, the testator may
either: (1) provide for the designation of another
heir to whom the property shall pass in case the
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 SUCCESSION | LDCS

original heir should die before him/her, pronouncement of the Supreme Court in Lawas
renounce the inheritance or be incapacitated to v. CA, 146 SCRA 173 (1986), is no longer true.
inherit, as in a simple substitution (Art. 859); or
(2) leave his/her property to one person with the 858 Substitution of heirs may be:
express charge that it be transmitted (1) Simple or common;
subsequently to another or others, as in a (2) Brief or compendious;
fideicommissary substitution. (Art. 863). (3) Reciprocal; or
- In simple substitution, the second heir takes the (4) Fideicommissary.
inheritance in default of the fi rst heir by reason ❖ KINDS OF SUBSTITUTION OMITTED IN THE NEW
of incapacity, predecease, or renunciation. (Art. CIVIL CODE
859). - Under the old Civil Code, there were two other
❖ PURPOSE OF SUBSTITUTION kinds of substitution.
- Substitution was devised in order: a. Sustitucion pupilar — where the parents and
a. to prevent the property from falling into the other ascendants appointed substitutes for their
ownership of people not desired by the testator. descendants of both sexes under 18 years of age
(6 Manresa 116). in case these descendants should die before
b. to prevent the effects of intestate succession. (6 attaining this age. (Art. 776, old Civil Code).
Manresa 116). b. Sustitucion ejemplar — where an ascendant
c. to allow the testator greater freedom to help or appointed a substitute for his descendant over
reward those who by reason of services 18 years of age who has been legally declared to
rendered to the testator, are more worthy of his be incapacitated on accountof being of an
affection and deserving of his bounty than unsound mind.
intestate heirs. Reasons for Sustitucion Pupilar:
❖ DEFECT OF CODAL DEFINITION OF SUBSTITUTION
- In the defi nition of substitution under Art. 857, This was for the salvation of the young, preventing
the phrase “in default of the heir originally instigators of murder from reaping any benefi ts from the
instituted” is defective. This is so because in the crime. (Manresa).
fideicommissary substitution, both the first and
Comments of the Code Commission
second heirs inherit. (Simultaneously, insofar as
the right to succeed is concerned; and These two kinds of substitution were abolished because
successively, insofar as the enjoyment and they are out of use and impracticable. There has been no
possession of the property are concerned.) Thus, known record that any parent or ascendant in this
a better definition has been suggested by country has ever made use of these two provisions of the
Roguin,a definition which includes the fi old law.
deicommissary substitution. He says that
substitution is a “disposition by virtue of which a ❖ SUBSTITUTION REFERRED IN THE NEW CIVIL CODE
third person is called to receive hereditary a. Simple or common substitution [also known as
property in lieu of or after another person. sustitucion vulgar. (Art. 859).
b. Brief or compendious substitution, also known
NOTE: as sustitucion brevilocua o compendiosa. (Art.
860).
a. As a rule, since substitution is nothing but a
c. Reciprocal substitution, also called sustitucion
secondary institution, the articles on institution
reciproca. (Art. 861).
can apply, except insofar as they are modifed by
d. Fideicommissary substitution, also known as
the chapter on substitution.
sustitucion fideicomisoria. (Art. 863, etc.).
b. There may also be substitution of legatees and
devisees 859 The testator may designate one or more
❖ QUERY persons to substitute the heir or heirs
- May the heirs be allowed to be substituted for instituted in case such heir or heirs should die
the deceased? before him, or should not wish, or should be
ANS.: Yes, without requiring the appointment of incapacitated to accept the inheritance.
an administrator or executor. The
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 SUCCESSION | LDCS

A simple substitution, without a statement of ANS.: No, this is not a case of simple substitution. In
the cases to which it refers, shall comprise the simple substitution of this nature, the heir or heiress dies
three mentioned in the preceding paragraph, before, and not after the testator or testatrix.
unless the testator has otherwise provided.
❖ SUPPLEMENTAL USE OF CHAPTER ON
❖ SIMPLE OR COMMON SUBSTITUTION
CONDITIONAL INSTITUTIONS
a. This Article is simple or common substitution.
- We have noticed that a simple substitution (also
b. The first paragraph talks of express substitution
the other kinds, with the exception of the
in case of:
fideicommissary substitution) is also a kind of
1. Predecease
conditional institution (the condition being the
2. renunciation or repudiation
predecease, incapacity, or repudiation by the
3. incapacity
originally instituted heirs). Therefore, we can
c. Example: A instituted B as heir, and stated in his
supplement the provisions of the chapter on
will that in case B dies ahead of him (A), another
substitution with the provisions of the chapter
person C will substitute B. (Note that the
on conditional institutions.
designation must always be express).
❖ SOME INSTANCES WHEN THE SUBSTITUTION IS
❖ PROBLEMS
EXTINGUISHED
a. A instituted B and appointed C as substitute. A
a. when the substitute predeceases the testator
did not state the causes for which the
b. when the substitute is incapacitated
substitution may be made. What should these
c. when the substitute renounces the inheritance
causes be?
d. when the institution of heir is annulled (say by
ANS.: All or any of the three cases, UNLESS A has preterition)
provided otherwise. In other words, if B predeceases A e. when the institution or the substitution is
or renounces the inheritance, or is incapacitated to revoked by the testator
receive the inheritance, C will be the substitute heir. (Art. f. when a will is void or disallowed or revoked
859, 2nd paragraph). ❖ PROBLEMS
a. T made a will instituting X as heir, and Y as
b. In question (a), if C enters into the inheritance, substitute. In 1998, Y died, leaving Z, his child. In
does he do so because he succeeds or inherits 2003, T died but X is incapacitated to inherit. Is Z
from B or from A? going to inherit from T?
ANS.: From A. The substitute enters the inheritance not ANS.: No, because Y may be considered a voluntary heir,
as an heir succeeding the fi rst heir, but as an heir of the and since he predeceased the testator, he transmit
testator. nothing to his own heirs. (See Art. 856, 1st paragraph). In
c. A made a will stating that should he die before B, the absence of any other provision in the will, legal
his relatives C and D would inherit certain succession will take place.
properties and that should either C or D die b. T made a will instituting X as heir, and Y, as
before A, the survivor (between C and D) would substitute. T died on Jan. 5, 2004. X renounced
inherit all of said specifi ed properties. However, the inheritance on Jan. 7, 2004. Y died on Jan. 8,
B died before A. Would C and D get anything? 2004. Can Z, the child of Y get anything from T’s
ANS.: No, C and D would not get anything, because their estate?
designation was conditional, namely, that A should die ANS.: Yes, because this is not a case of predecease on the
before B, but such was not the case. Had the conditio part of Y, who after all survived the testator, and
been followed, and had either C or D died before A, there immediately inherited from T, subject to the condition of
would have been substitution. X’s non-inheritance. Since the condition was fulfilled
d. The testatrix instituted an heiress and ordered there is no doubt that Y inherited. True, Y is now dead,
that the children of the heiress would substitute but his son Z can share in T’s estate, not as an heir of T,
the heiress should said heiress die after the but merely to get the share already inherited by his
testatrix. Is this a case of simple substitution? father Y

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 SUCCESSION | LDCS

860 Two or more persons may be substituted for 2. or absurdity

one; and one person for two or more heirs.
HENCE, the words “same share” should be interpreted to
(778)
mean “same proportionate share.”
❖ BRIEF OR COMPENDIOUS SUBSTITUTIONS
a. This Article speaks of the brief or compendious ❖ EXAMPLE
substitution, both terms of which may be used - T institutes A to 12/18, B to 2/18, and C to 4/18.
synonymously or interchangeably. However, see A is made the substitute of B or C; B and C are
(b) the substitutes of A. If A predeceases, is
b. Properly, there are two kinds of substitution incapacitated, or renounces, his share of 12/18
here: will be given proportionately to B and C. In other
1. the brief substitution — when two or more words, B and C will inherit in the substitution.
take the place of one Since B and C were instituted in the proportion
2. the compendious substitution — when one of 1 is to 2, this will be the proportion in which
takes the place of two or more they will get the 12/18, namely, 4/18 and 8/18,
❖ EXAMPLES respectively.
1. Brief — A is an instituted heir, and B and C are - Translated into whole fi gures, if the estate is
his substitutes. P180,000, A is really instituted to P120,000; B to
2. Compendious — A and B are instituted heirs, and P20,000; C to P40,000. Since B and C are made
C is the substitute. substitutes of A, if substitution is proper, B and C
will get A’s P120,000 in the proportion of
[NOTE: The brief or compendious substitution is really a
P20,000 is to P40,000 (or in the proportion of 1
variation, either of the simple or the fideicommissary
is to 2). Hence, in the substitution, B gets
substitution. Hence, an example (a), in case of
P40,000 and C gets P80,000.
predecease, repudiation, or incapacity of A, the other
two will take his place. Here, we have an example of the Summing up:
variation of the simple substitution.]
B gets a total of P60,000
861 If heirs instituted in unequal shares should be
reciprocally substituted, the substitute shall (P20,000 by institution),
acquire the share of the heir who dies, (P40,000 by substitution)
renounces, or is incapacitated, unless it clearly
appears that the intention of the testator was C gets a total of P120,000
otherwise. If there are more than one
(P40,000 by institution)
substitute, they shall have the same share in
the substitution as in the institution. (P80,000 by substitution)
❖ RECIPROCAL SUBSTITUTION
- This Article speaks of the reciprocal substitution, TOTAL INHERITANCE = P180,000.
the essence of which is that the instituted heirs NOTE: Reason why substitutes inherit in the substitution
are also made the substitutes of each other. in the same proportion as in the institution: The
❖ EXAMPLE OF FIRST SENTENCE presumption is that the testator wanted it this way,
- T instituted A to 2/3 and B to 1/3. If A otherwise, if their shares were to be absolutely equal,
predeceases, is incapacitated, or renounces, his they would not have been instituted unequally. (Of
share of 2/3 goes to B. If B predeceases, is course, if the institution was in the proportion of 1 is to
incapacitated, or renounces, his share of 1/3 1, this would be the same proportion in the substitution.)
goes to A.
❖ MEANING OF SECOND SENTENCE NOTE: It is believed that Art. 861 applies also to
- The second sentence says that “if there are more substitutions in legacies and devises.
than one substitute, they shall have the same
NOTE: Will Art. 861 apply even if the institution was in
share in the substitution as in the institution.” equal shares? (NOTE that the law says “unequal shares.”)
This may, if interpreted literally, result in certain
cases either in:
1. partial intestacy
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 SUCCESSION | LDCS

ANS.: Yes. The same principle applies. The law uses substitute. If A predeceases T, B is not required to give
“unequal” only to clear up former doubts on the matter the concert if he is not a pianist himself.
in the case the institution was in unequal shares.
Query:
❖ PROBLEM
- T gave A a legacy of P120,000; B, P20,000; C, Suppose in the problem above, A died the day after T
P40,000. If A predeceases T, how much of his died, will B inherit? (The reader will please try to answer
shares, if any, will go to and C, by way of this.) (HINTS: There was no predecease. Was there
SUBSTITUTION? incapacity? Was the condition fulfilled? Has the
condition become impossible? Is the condition
ANS.: None, for no substitution was provided for in the extinguished and will it be disregarded? Is this an
will. However, as will be discussed later, they will inherit impossible condition in a contract or in a will?).
by ACCRETION, and it is worthwhile to note that those
who inherit by accretion inherit also in the same 863 A fideicommissary substitution by virtue of
proportion as in the institution (or devise or legacy). which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and
[Note the difference in these two statements: to transmit to a second heir the whole or part
of the inheritance, shall be valid and shall
a. X will be the substitute only if Y and Z do not
take effect, provided such substitution does
inherit.
not go beyond one degree from the heir
b. X will be the substitute if either Y or Z does not
originally instituted, and provided further,
inherit.
that the fiduciary or first heir and the second
(The effects are obviously different.).]. heir are living at the time of the death of the
testator.
862 The substitute shall be subject to the same ❖ FIDEICOMMISSARY DEFINED
charges and conditions imposed upon the - A fideicommissary substitution (indirect
instituted heir, unless the testator has substitution) is that by virtue of which a testator
expressly provided the contrary, or the institutes a first heir, and charges him to
charges or conditions are personally preserve and transmit the whole or part of the
applicable only to inheritance later on to a second heir.
the heir instituted. (780) ❖ DISTINCTION FROM SIMPLE SUBSTITUTION
❖ EFFECT ON THE SUBSTITUTION OF CHARGES AND - The most important difference is that while in
CONDITIONS IMPOSED IN THE INSTITUTION the simple substitution only ONE of the heirs
a. General rule — If the substitute inherits, he must inherits, in the fi deicommissary, BOTH inherit.
fulfill the conditions imposed on the original heir. - Examples illustrating the difference:
(Reason: We presume that the testator intended the 1. SIMPLE — T institutes A as heir, and
substitute to stand on the same footing as the original appoints B as substitute if A does not
heir.). inherit.

b. Exceptions — (It is clear here that either A or B will inherit).

1. if the testator has expressly provided the (ALTERNATIVE SUCCESSION)
contrary (this must appear in the will) 2. Fideicommissary Substitution — T institutes
2. if the charges or conditions are personally A as first heir. The will states that A should
applicable, only to the heir instituted. (This preserve and transmit later on the estate to
occurs when the personal qualifications of B, who is A’s son. (It is clear here that upon
the original heir had been considered by the T’s death, A will inherit. Later on, A will have
testator in designating said original heir.) to deliver the property to B who has also
Example: inherited as second heir. In other words, in
the fi deicommissary substitution, both
T instituted A, pianist, as heir, provided that A would give heirs inherit).
a piano concert a month after T’s death. B was made
[NOTE: In the example above:

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 SUCCESSION | LDCS

1. A — is the fi rst heir, or fi duciary, or heredero, fi -He is not mere trustee for while he also
duciaro, or trustee. (He has the obligation of administers, he carries out not another’s wishes
preserving and transmitting.) but his own, insofar as management is
2. B — is the second heir, or fi deicommissary or fi concerned. Moreover, he enjoys the use and the
- deicomisario or benefi ciary or cestui que trust. fruits, unlike a trustee. Hence, the
(He eventually receives the property.) fideicommissary substitution is not exactly
3. T — is the testator or decedent or the fi equivalent to, nor should it be confused with the
deicomitente. (See Sanchez Roman).]. Anglo-Saxon “trust.”
- He is not mere agent or delivery boy who is
[NOTE ALSO that both the heirs inherit the property or obliged to Do nothing but deliver the property.
right to it SIMULTANEOUSLY, although the enjoyment - He is indeed almost like a usufructuary, with the
and possession are SUCCESSIVE.] right to enjoy the property. Thus, like a
❖ PURPOSE usufructuary, he cannot alienate the property. If
- “This is necessary for the prosperity and prestige however he succeeds, in the case of land for
of the family, bearing in mind the lack of example, in registering it as unencumbered in
intelligence, weakness of character, and vanity the Torrens system of registration, innocent
and prodigality of the descendants to whom the third parties should not be prejudiced. If no such
property may go. It has been contended that the registration is made, the buyer, no matter how
power to appoint a fideicommissary substitute is innocent, acquires merely the seller’s right,
a complement of the freedom of disposition hence, he holds it subject to the substitution
which gives a powerful stimulus to the with the duty himself of preserving and
accumulation of wealth, and thus, maintains the transmitting
tradition and social standing of the family - Like a usufructuary, he is implicitly bound to
❖ DISADVANTAGE make an inventory to know what properties he
a. The free circulation of property is somewhat must preserve and transmit.
curtailed, resulting in suspended ownership. - But unlike a usufructuary, he is not required to
b. The property may be locked up or entailed in a furnish a bond. Unlike a usufructuary also, he is
family for a long period. (Report of the Code entitled to a refund of useful improvements, at
Commission, p. 111). least insofar as an increase in value is concerned
c. It is opposed to the liberty of property and to the whereas an ordinary usufructuary is not entitled
principle that the making of a will is a strictly to a reimbursement, but merely to a removal of
personal act. them in case this can be done without
d. The original purpose is feudalistic and is not in substantial injury to the property
accord with the modern concept of ownership ❖ SECOND REQUISITE
which puts the welfare of society over and above - The obligation to preserve and transmit must be
that of a particular family. given clearly and expressly, either by giving the
❖ REQUISITES AND LIMITATIONS substitution this name of “fideicommissary
a) There must be a FIRST HEIR called primarily or substitution,” or by imposing upon the first heir
preferentially to the enjoyment of the property. the absolute obligation to deliver the property to
b) There must be an obligation clearly imposed a second heir. (Art. 867, par. 1).
upon him to preserve and transmit to a third - If a mere suggestion, advice, or request is made
person the whole or part of the inheritance (part instead of an obligation, there is no
only if the substitution refers merely to that fideicommissary substitution. In such a case,
part). there will be a simple institution of the first heir,
c) A SECOND HEIR. and the second heir gets nothing. This is because
d) The 1st and the 2nd heirs must be only one the nullity of the fi dei-commissary substitution
degree apart. (Art. 863). does not prejudice the validity of the institution
❖ FIRST REQUSITE of the heirs first designated; the fideicommissary
- The first heir must himself be capacitated, and clause shall simply be considered as not written.
must accept the inheritance if he wants to enjoy (Art. 838).
the same.
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- If the obligation is conditional, there is no 2. According to others like Manresa and Sanchez
fideicommissary substitution. Roman, one “degree” means one “generation.”
This is because the word “degree” as used in the
Example: Civil Code — on intestate succession — refers to
T devised land to X with authority to sell if X has children; “generation.” This means that the substitute
or if none, she must deliver it after her death to Y. There may be the parent or child of the first heir — no
is no fideicommissary substitution in view of the other person can be the fideicommissary. Hence,
condition under this view it would be proper to have the
following transfers: 1st heir to his son, then from
- T instituted X as heir, allowed X to sell the same 1st heir’s son to the 1st heir’s father to the 1st
after his death, and designated Y as heir to heir’s daughter, etc. Note that the relationship is
whatever property remains after X’s death. always counted from the 1st heir, not from the
There is no fideicommissary substitution here for others. This is the opinion also of Senators Arturo
failure to express the obligation to preserve. Tolentino and Ambrosio Padilla
- T asked X to deliver certain properties to Y after 3. The author is inclined to agree with Manresa,
T’s death. There is no fideicommissary Tolentino, and Padilla, considering among other
substitution here. things the fact that one purpose of the fi
- T made X his heir. He provided in the will that X deicommissary substitution is to maintain the
would enjoy the property as long as X lived, but prosperity and prestige of ONE FAMILY. person,
after his death, same should go to Y. there is nothing wrong if we construe “one
HELD: There is no fideicommissary substitution here degree” as “one transfer” or “one transmission.
since there was no obligation to preserve [NOTE: In the following problems, we shall then consider
❖ THIRD REQUISITE “one degree” as really “one degree (or generation).’’]
- He is known as fideicommissary, and is a sort of ❖ PROBLEMS
naked owner. Upon transmission to him of the 1. T instituted A as fi rst heir, and B (A’s brother), as
property, full ownership is consolidated in him. second heir in what he desired to be a fi
- Under the old Civil Code, according to Manresa, deicommissary substitution. When T died, A got
it was possible that the 2nd heir be a juridical the property. Later, A died. Who will get the said
person or a hospital or a class of persons, like the property, A’s heir or B?
poor.
- Under the new Civil Code, however, it would ANS.: A’s heir, because the fideicommissary substitution
seem that this construction is untenable as a rule was not valid, B being a relative of the 2nd degree of A.
since “one degree” really refers to a generation, It does not matter that there was only one transfer here.
and therefore to a natural person. However, 2. T instituted A as fi rst heir; B (A’s son) as 2nd heir;
there is really nothing intrinsically wrong with and C (B’s mother) as 3rd heir in a
making the second heir — a juridical person — in fideicommissary substitution. Is this valid?
which case one degree should mean one
transfer. ANS.: It is valid insofar as A will get and then B. But on B’s
- Since the second heir inherits not from the first death, C does not get the property as a result of the
heir but from the testator, said second heir must fideicommissary substitution because C is not one
be capacitated to succeed not the first heir but degree apart from A; C may not even be related by blood
the testator to A. (However, there is a chance C can get the property,
❖ FOURTH REQUISITE not as a result of T’s will, but as a result of B’s will or B’s
a. Meaning of one degree - Opinion is divided on intestate succession, for she is after all an heir of B.)
this point.
1. According to the Spanish Supreme Court, one ❖ FIFTH REQUISITE
degree means one transfer, one transmission, or a. Reason for the requirement: To reduce as much
one substitution, the purpose being to prevent as possible the number of years the property will
successive entailments, regardless of have to be entailed. For if the second heir were
relationship still not even conceived at the time the testator
dies, a long time may elapse. Furthermore, the
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second heir himself inherits from the testator, this does not mean that no effect should be
and one cannot inherit unless he be alive or at given to their designation, for the truth is that
least conceived. Thirdly, a non-conceived child they were also instituted to said remaining
has no juridical capacity, and cannot therefore properties. The institution of Mr. Hodges
be given any legal right. (Art. 37) partakes of a resolutory condition, this is really a
b. Problem resolutory term, because Mr. Hodges would
- T instituted A as fi rst heir, and A’s third child as surely die, sooner or later that is, ownership of
second heir. If A does not even have any child yet the inherited properties would end at his death
at the time the testator dies, can the (that is, while he was free, as owner, to dispose
fideicommissary substitution be given any of the properties inter vivos, he was not free to
effect? do so mortis causa). The institution of Mrs.
Hodges’ brothers and sisters is on the other hand
ANS.: No, for the 2nd heir was not yet living or conceived an institution subject to a suspensive condition
at the testator’s death. This is so even if at the time A
(this is really a suspensive term), their
dies, the 3rd child already exists. inheritance having become vested at thetime of
c. Problem Mrs. Hodges’ death, but only operative upon the
- T institutes A as 1st heir, B as second heir. B dies death of Mr. Hodges. With respect to the second
in 1999; T dies in 2012. In 2013, does A inherit? issue, the allegation of the PCIB that Mrs.
Hodges’ estate is 1/4 of the total mass is a
ANS.: Yes, for while the substitution is not valid, the judicial admission of a fact (the existence of the
institution remains valid. (See Art. 868) foreign law being a fact), and by the principle of
d. Problem estoppel, would prevent the PCIB from alleging
- T institutes A as 1st heir, B as second heir. A dies that Mrs. Hodges’ estate is less than 1/4.
in 2012; T dies in 2013. Will B inherit in 2013? ❖ DISTINCTIONS BETWEEN THE FIDEICOMISO,
SUSTITUCION FIDEICOMISORIA, AND MAYORAZCO
ANS.: It is apparent that the fideicommissary substitution a. The fideicomiso came first, but instead of there
cannot be given effect, for the 1st heir was already dead being twoheirs, there really was only one heir.
at the time the testator died. If, therefore, A does not But between the testator and the heir was a sort
inherit, and if the substitution of B is not valid, it would of middle man or agent whose function was, in
seem that the logical answer is that B does not inherit. many cases, to intervene only in order that an
Indeed, the fideicommissary substitution cannot be incapacitated person (the heir) could succeed
given effect for it was void. However, liberal construction from the testator. Sometimes the real heir was
of the law can permit us, I believe, to consider this not as named in the will; sometimes he could be known
a fideicommissary substitution but as a SIMPLE one. In only thru secret instructions given the
such a case, B can inherit. This interpretation can indeed middleman who never really inherited himself.
give effect to the testator’s desire to eventually give the b. The fideicomisoria which we are now discussing
property to the substitute. And certainly by providing for in this Article 863, was the outgrowth of the
a substitute, the testator has made it clear that as fideicomiso and the various kinds of simple
between intestacy and substitution, the latter would be substitutions. As we have seen, there really are
preferred. two heirs, here, the first not being a mere agent.
c. The mayorazco is simply a form of the
❖ AN APPARENT SUBSTITUTION THAT IS ACTUALLY
fideicommissary substitution with this feature —
AN INSTITUTION
that the property or the greater portion of it was
- The designation of the brothers and sisters of
handed down from generationto generation
Mrs. Hodges is not a valid substitution (not a
thru the oldest child (similar to the custom of
simple or vulgar substitution because the will
primo geniture). This resulted however in
does not say that said relatives would inherit if
perpetually entailing the property and was
Mr. Hodges would predecease, be incapacitated,
therefore abolished by the Disentailing Law of
or should repudiate the inheritance; and not a fi
Spain extended to the Philippines as of Mar. 1,
deicommissary substitution for Mr. Hodges was
1864 by the Royal Decree of Oct. 31, 1863
not obliged to preserveand transmit said
properties to the relatives of Mrs. Hodges). But
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864 A fideicommissary substitution can never ❖ EFFECT OF ALIENATION OF RESERVABLE PROPERTY

burden the legitime - One implication from the duty “to deliver” is that
❖ REASON WHY THE FIDEICOMMISSARY the first heir must not ordinarily alienate the
SUBSTITUTION CANNOT BURDEN THE LEGITIME property to a stranger.
- The legitime is expressly reserved for the ❖ DEDUCTIONS TO BE MADE IN CASE OF
compulsory heirs. (Art. 886). As a matter of fact, TRANSMITTAL TO SECOND HEIR
no substitution of any kind can be imposed on a. Legitimate expenses — like necessary repairs for
the legitime. the preservation of the property; and the
❖ EXAMPLE increase in value occasioned by useful
- T had an estate of P1 Million. He gave F, a friend, improvements.
P500,000. On the remaining P500,000 he
[NOTE: The actual expenses for useful improvements are
imposed a fideicommissary substitution with T’s
not reimbursable.]. (6 Sanchez Roman 701). Examples of
child as first heir. The son can disregard
useful improvements are: a house, a fence. Other
completely the substitution since it was imposed
legitimate expenses include those spent to defend the
on his legitime.
property from usurpation by others. Expenses for luxury
865 Every fideicommissary substitution must be are of course not to be reimbursed.
expressly made in order that it may be valid.
b. Legitimate credits.
The fiduciary shall be obliged to deliver the
c. Legitimate improvements.
inheritance to the second heir, without other
deductions than those which arise from [NOTE: Of course, more can be deducted if so provided
legitimate expenses, credits and by the testator. (Last part of second paragraph, Art
improvements, save in the case where the 866).].
testator has provided otherwise. (783)
❖ FIDEICOMMISSARY SUBSTITUTION MUST BE MADE [NOTE: Deteriorations caused by fi duciary’s malice or
EXPRESSLY negligence must of course be shouldered by him.].
- First paragraph of the Article — to be express, [NOTE: If the property is destroyed by a fortuitous event,
the words “fideicommissary substitution” need the obligation to deliver is generally extinguished.]
not be given; it is sufficient that there be the
absolute obligation of delivering (and therefore 866 The second heir shall acquire a right to the
of preserving) the property to the second heir. succession from the time of the testator’s
(Art. 867, No. 1). Moreover, if the intention is death, even though he should die before the
clear from the clauses of the will, same would be fiduciary. The right of the second heir shall
sufficient to effect this kind of substitution. pass to his heirs. (784)
(Upon the other hand, just because the words ❖ RULES IF SECOND HEIR PREDECEASES THE
“fideicommissary substitution” were used, it FIDUCIARY (NOT THE TESTATOR)
does not necessarily mean that it takes effect for a. The second heir inherits, not from the first heir,
after all, the other essential requisites may Be but from the testator.
absent. b. The Article applies only when all the essential
❖ WHEN THE SECOND INHERITANCE IS SUPPOSED TO requisites for a fideicommissary substitution are
BE DELIVERED TO THE SECOND HEIR present, particularly the requirement that both
- In the absence of a period fixed by the testator, heirs must be alive when the testator dies. In
the inheritance must be delivered at death of the other words, while it is permissible for the
first heir. second heir to predecease the first heir, neither
❖ EXTENT OF THE INHERITANCE TO BE DELIVERED must predecease the testator.
- This depends on the intent of the testator. It may ❖ PROBLEM
be that he ordered a fideicommissary - T instituted A as 1st heir, and B as 2nd heir. T died
substitution only on one third of the property. in 2003. B died in 2004, leaving a son C. On A’s
Unless specified, it is understood that the whole death, will C get the property?
property received by a first heir in a - ANS.: Yes, on T’s death in 2003, A got the
fideicommissary substitution must be delivered. property and on A’s death, same should go to the

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heirs of B. B really had already inherited from T Example: T instituted A as fi rst heir, and B as second heir
since he acquired the right from T’s death; and in a fideicommissary substitution. T die and A got the
his right goes to C, his heir, even if B predeceased property. If A lives for, say, fifty years more, can A sell the
the fi duciary A. Had B predeceased T, B would property?
never have acquired any right to the property
and would not be able to transmit same to his ANS.: No, he must preserve the property till his death,
own heir C. (Art. 866; Art. 863). then B takes the property.
Problem: T instituted A as fi rst heir, and B as second heir
867 The following shall not take effect:
in a fi deicommissary substitution. T ordered A not to sell
(1) Fideicommissary substitutions which are
the property for thirty years, and after said period to
not made In an express manner, either by
deliver the property to B. Is this a valid stipulation?
giving them this name, or imposing upon the
fi duciary the absolute obligation to deliver ANS.: Yes, even if the period exceeds twenty years, for
the property to a second heir; after all, at the end of the thirty years, A cannot give the
(2) Provisions which contain a perpetual property to anybody except B. Moreover, if the fi rst heir
prohibition to alienate, and even a temporary can be prohibited to alienate as long as he lives in order
one, beyond the limit f xed in Article 863; that same could be delivered to the second heir, why not
(3) Those which impose upon the heir the for a period of thirty years? Of course, even if the thirty
charge of paying to various persons years have not yet elapsed, if the fi rst heir has already
successively, beyond the limit prescribed in died, the property should be given to B by virtue of the
Article 863, a certain income or pension; fideicommissary substitution.
(4) Those which leave to a person the whole
or part of the hereditary property in order that 2) In case there is NO fi deicommissary
he may apply or invest the same according to substitution, the testator can prohibit the
secret instructions communicated to him by heir, and all those who may inherit from the
the testator. (785a) latter, for a total period of twentyyears,
❖ TESTAMENTARY DISPOSITIONS AKIN TO provided that same prohibition will not go
FIDEICOMMISSAR SUBSTITUTIONS beyond the limits imposed by Art. 863.
- Purpose of the Article — to prevent conditions Example: T instituted A as his only heir, but
which would entail the property for a long time prohibited him and all who may
and result in a case worse than the subsequently inherit from him to dispose of
fideicommissary substitution. The paragraphs the property for a period of twenty years. T
will now be discussed except the first which has then died. A is bound not to alienate for 20
already been explained elsewhere years. But A dies 3 years after T. B, the son of
❖ PROHIBITION TO ALIENATE A then inherits the property from A. Is B still
a. Perpetual prohibition to alienate bound to respect the temporary prohibition
Example: A gave a devise of land to X, and told ANS.: Yes, for the next 17 years. Suppose B dies after 10
him never to alienate the property. Is the years more, and the property is inturn inherited by C who
stipulation valid? is his son, is C bound notto alienate for the remaining 7
ANS.: Strictly speaking, the stipulation is of no years?
effect (Art. 867, No. 2), but considering Art. 870,
it is submitted that same would be valid, but only ANS.: No more, because although a total of 13years only
for the first twenty years. Thus, X can sell the has lapsed, still to impose the prohibition for the
land after twenty years, but not before. remaining 7 years on C would be beyond the limits of Art.
b. Temporary Prohibition 863, since C is not a fi rst degree relative of A who
1) In case there is a fi deicommissary originally inherited the property.
substitution, the prohibition to alienate
[NOTE: Even if we construe one degree as one transfer,
imposed on the fiduciary is allowed even if
the same conclusion is reached, since here, the second
more than 20 years have elapsed, otherwise,
transferee, C, should no longer be bound.].
there may be nothing to deliver, and the
purpose of the substitution is frustrated.

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[NOTE: The purpose of the law is to prevent acase worse ❖ EFFECT OF NULLITY OF F.S
than the entailment in a fideicommissary substitution.] - Example:
T instituted A as fi rst heir, and B as second heir.
❖ PAYMENT OF INCOME OR PENSIONS- If B predeceases T, will A still inherit?
- Attention must be focused on the word - ANS.: Yes, as instituted heir, notwithstanding the
“successively.” invalidity of the fi deicommissary substitution.
Example of the paragraph: The clause on substitution is simply considered
as not written.
T instituted A as a sole heir, with the obligation of paying
a periodical income of P20,000 a month to B, and after 869 A provision whereby the testator leaves to a
B’s death to C. This would be proper provided that B and person the whole or part of the inheritance,
C are one degree apart and both are living at the and to another the usufruct, shall be valid. If
testator’s death. If the pension would be given to B first, he gives the usufruct to various persons, not
then to C (son of B) upon B’s death, then to D (son of C) simultaneously, but successively, the
upon C’s death, this would be very prejudicial to A. provisions of Article 863 shall apply.
Therefore the law, in the problem given, would require ❖ GRANT OF USUFRUCT
him to pension only B, then C after B’s death. To require - A, in his will, gave to B the naked ownership of
him to pension also D would be to go beyond the limits his (A’s) house and C the usufruct over the same.
of Art. 863. This is allowed because the naked ownership of
the property is really distinct and severable from
[NOTE: If those to receive pensions will be given the use of fruits (the beneficial ownership)
simultaneously and not successively, it would be thereof.
permissible to require him to pension as many people as - In example (a), may the usufruct be given C and
he could, but of course the total amount should not go D, a stranger, simultaneously?
beyond the value of the inheritance, unless of course the
heir consents.]. ANS.: Yes, and in such a case, C and D would be coowners
of the usufruct and of the usufructuary rights. The law
❖ EFFECT OF SECRET INSTRUCTIONS distinctly provides that “usufruct may be constituted on
- The law says that dispositions which leave to a the whole or part of the fruits of the thing, in favor of one
person the whole or part of the hereditary or more persons, simultaneously or successively, and in
property in order that he may apply or invest the every case, from or to a certain day, purely or
same according to secret instructions conditionally.” (Art. 564, Civil Code).
communicated to him by the testator, are of no
effect. (Art. 867, par. 4). 870 The dispositions of the testator declaring all or
part of the estate inalienable for more than
Example twenty years are void.
T made a will giving A P1 million to dispose of in ❖ PROHIBITION ON ALIENATION FOR MORE THAN 20
accordance with secret instructions he had given him. If YEARS VOID
A is supposed to act only as a middleman or agent, both a. To give more impetus to the socialization of the
the secret instructions and the giving him of the money ownership of property, and to prevent the
should be disregarded, for both are void. It may happen perpetuation of large holdings which give rise to
indeed that this was done only to benefi t an unknown agrarian troubles, Art. 870 of the new Civil Code
incapacitated person (remember the fi deicomiso), or has been formulated. (Comment of the Code
the agent will openly violate the instructions — for he Commission).
cannot of course be checked — such instructions being b. A was given his legitime in the form of a house.
secret. In the will, A was prohibited to sell the house
within a period of 10 years. Can A sell the house
868 The nullity of the fi deicommissary even before the expiration of said period?
substitution does not prejudice the validity of ANS.: Yes. This prohibition, even if less than 20
the institution of the heirs first designated; the years, cannot be applied to the legitime. (Art.
fideicommissary clause shall simply be 904, 2n paragraph).
considered as not written

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 SUCCESSION | LDCS

c. Please read in this connection the comments on

Art. 867 (No. 2).
d. If a devise or legacy is given and the recipient is
prohibited to alienate, but no period is fi xed
regarding the length of the prohibition, it is
understood that the prohibition is good for
twenty years. The same is true if the prohibition
is for “forever.”
e. If the devisee or legatee is prohibited to alienate
“as long as he lives,” then the prohibition is good
for twenty yearsclear that the prohibition is
ended, and therefore his own heirs will not be
burdened by the prohibition.
f. Art. 870 does not apply if there is a
fideicommissary substitution, for this must be
governed by Art. 867(2). if he lives for said period
or longer; if he dies sooner, it is
❖ IN DEFAULT OF THE HEIRS OF THE DECEDENT, THE
STATE WILL INHERIT THE SHARE

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