Succession_Outline_Notes_Cases2

Wills & Succession/ Atty Uribe Art. 1336. Violence or intimidation shall annul the obligation,
although it may have been employed by a third person who did
There appears to be no more dispute at this time over the extrinsic not take part in the contract. (1268)
validity of the Will. Both parties are agreed that the Will of Martin
Jugo was executed with all the formalities required by law and that Art. 1337. There is undue influence when a person takes
the testator had the mental capacity to execute his Will. The improper advantage of his power over the will of another,
petitioner states that she completely agrees with the respondent depriving the latter of a reasonable freedom of choice. The
court when in resolving the question of whether or not the probate following circumstances shall be considered: the confidential,
court correctly denied the probate of Martin Jugo's last Will and family, spiritual and other relations between the parties, or the
Testament, The only issue, therefore, is the jurisdiction of the fact that the person alleged to have been unduly influenced was
respondent court to declare the testamentary provision in favor of the suffering from mental weakness, or was ignorant or in financial
petitioner as null and void. distress. (n)

There is no question from the records about the fact of a prior Art. 1338. There is fraud when, through insidious words or
existing marriage when Martin Jugo executed his Will. There is also machinations of one of the contracting parties, the other is
no dispute that the petitioner and Mr. Jugo lived together in an induced to enter into a contract which, without them, he would
ostensible marital relationship for 22 years until his death. It is also a not have agreed to. (1269)
fact that on December 2, 1952, Martin Jugo and Sofia J.
Nepomuceno contracted a marriage before the Justice of the Peace T: A will void as to form does not transmit property. But it can give
of Victoria, Tarlac. The man was then 51 years old while the woman rise to a natural obligation; so that even if a legatee named therein
was 48. Nepomuceno now contends that she acted in good faith for cannot legally claim the legacy, the voluntary delivery thereof by the
22 years in the belief that she was legally married to the testator. intestate heir is valid.

Moreover, the prohibition in Article 739 of the Civil Code is against Is a will executed by virtue of fraud upon testator susceptible of
the making of a donation between persons who are living in adultery ratification?
or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very T: We submit that this conclusion overlooks the difference between
wordings of the Will invalidate the legacy because the testator the law on wills and the law on contracts. In the law on contracts,
admitted he was disposing the properties to a person with whom he fraud merely makes the contract voidable; while in the law on wills,
had been living in concubinage. WHEREFORE, the petition is fraud is a ground for the disallowance of the will, that is, it renders
DISMISSED for lack of merit. the will void ab initio. There is nothing in the law on wills which allows
implied confirmation or ratification of a void will, while there are
X. DISALLOWANCE OF WILLS provsions allowing it in the law on contracts.

Art. 839. The will shall be disallowed in any of the following However, the fact that the testOR did nor revoke his will after
cases: knowledge of the alleged fraud may be evidence against the
existence of fraud.
(1) If the formalities required by law have not been
complied with; Pascual vs. Dela Cruz

(2) If the testator was insane, or otherwise mentally On 2 January 1960, Catalina de la Cruz, single and without any
incapable of making a will, at the time of its execution; surviving descendant or ascendant, died at the age of 89 in her
residence at San Roque, Navotas, Rizal. On 14 January 1960, a
(3) If it was executed through force or under duress, or petition for the probate of her alleged will was filed in the Court of
the influence of fear, or threats; First Instance of Rizal by Andres Pascual, who was named in the
said will as executor and sole heir of the decedent. 1
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some Opposing the petition, Pedro de la Cruz and 26 other nephews
other person; and nieces of the late Catalina de la Cruz contested the validity of
the will on the grounds that the formalities required by law were not
(5) If the signature of the testator was procured by complied with; that the testatrix was mentally incapable of disposing
fraud; of her properties by will at the time of its execution; that the will was
procured by undue and improper pressure and influence on the part
(6) If the testator acted by mistake or did not intend of the petitioner; and that the signature of the testatrix was obtained
that the instrument he signed should be his will at the through fraud.
time of affixing his signature thereto. (n)
After hearing, during which the parties presented their
Art. 1335. There is violence when in order to wrest consent, respective evidences, the probate court rendered judgment
serious or irresistible force is employed. upholding the due execution of the will, and, as therein provided,
appointed petitioner Andres Pascual executor and administrator of
There is intimidation when one of the contracting parties is the estate of the late Catalina de la Cruz without bond. The
compelled by a reasonable and well-grounded fear of an oppositors appealed directly to the Court, the properties involved
imminent and grave evil upon his person or property, or upon being valued at more than P300,000.00, raising only the issue of the
the person or property of his spouse, descendants or due execution of the will.
ascendants, to give his consent.
In this instance, oppositors-appellees claim that the lower court
To determine the degree of intimidation, the age, sex and erred in giving credence to the testimonies of the subscribing
condition of the person shall be borne in mind. witnesses and the notary that the will was duly executed,
notwithstanding the existence of inconsistencies and contradictions
A threat to enforce one's claim through competent authority, if in the testimonies, and in disregarding their evidence that the will
the claim is just or legal, does not vitiate consent. (1267a) was not signed by all the witnesses in the presence of one another,
in violation of the requirement of the law.
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Wills & Succession/ Atty Uribe sustained on mere conjecture or suspicion, as it is enough that there
was opportunity to exercise undue influence, or a possibility that it
In this jurisdiction, it is the observed rule that, where a will is may have been exercised (Ozaeta vs. Cuartero, L-5597, 31 May
contested, the subscribing with are generally regarded as the best 1956); that the exercise of improper pressure and undue influence
qualified to testify on its due execution. However, it is similarly must be supported by substantial evidence that it was actually
recognized that for the testimony of such witnesses to be entitled to exercised (Ozatea vs. Cuartero, ante; Teotico vs. Del Val, L-18753,
full credit, it must be reasonable and unbiased, and not overcome by 26 March 1965); that the burden is on the person challenging the will
competent evidence, direct or circumstantial. 2 For it must be to show that such influence was exerted at the time of its execution
remembered that the law does not simply require the presence of (Teotico vs. Del Val, ante); that mere general or reasonable influence
three instrumental witnesses; it demands that the witnesses be is not sufficient to invalidate a will (Coso vs. Fernandez Deza, ante);
credible. 3 nor is moderate and reasonable solicitation and entreaty addressed
to the testator (Barreto vs. Reyes, L-5831-31, 31 January 1956), or
In connection with the issue under consideration, we agree omission of relatives, not forced heirs, evidence of undue influence
with the trial judge that the contradictions and inconsistencies (Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 416).
appearing in the testimonies of the witnesses and the notary, pointed
out by the oppositors-appellants (such as the weather condition at Tested against these rulings, the circumstances marshalled by
the time the will was executed; the sequence of the signing by the the contestants certainly fail to establish actual undue influence or
witnesses; and the length of time it took to complete the act), relate improper pressure exercised on the testarix by the proponent. Their
to unimportant details of the impressions of the witnesses about main reliance is on the assertion of the latter, in the course of his
certain details which could have been affected by the lapse of time testimony, that the deceased "did not like to sign anything unless I
and the treachery of human memory, and which inconsistencies, by knew it" (t.s.n., page 7, 27 January 1962), which does not amount to
themselves, would not alter the probative value of their testimonies proof that she would sign anything that proponent desired. On the
on the due execution of the will [cf. Peo. vs. Sigue, 86 Phil. 139-140 contrary, the evidence of contestants-appellants, that proponent
(3 years interval)]. purchased a building in Manila for the testarix, placed the title in his
name, but caused the name "Catalina de la Cruz" to be painted
Not having heard Jiongco testify, this court is not in a position to thereon in bold letters to mislead the deceased, even if true,
contradict the appreciation of the trial court that the voice in the tape demonstrates that proponent's influence was not such as to
recording was not really that of Jiongco. And considering that he overpower to destroy the free will of the testarix. Because if the
denied that fact under oath, that the tape recording was not mind of the latter were really subjugated by him to the extent
supported by truly impartial evidence, and was done without the pictured by the contestants, then proponent had no need to
knowledge of the witness, we cannot see our way clear to rule that recourse to the deception averred.lawphi1.�et
Jiongco has been successfully impeached, and shown guilty of false
testimony. It would be dangerous to rule otherwise. Nor is the fact that it was proponent, and not the testarix, who
asked Dr. Sanchez to be one of the instrumental witnesses evidence
The second point that renders incredible the alleged assertion of such undue influence, for the reason that the rheumetism of the
of Jiongco in the tape recording, that he signed the testament only in testarix made it difficult for her to look for all the witnesses. That she
1958 or 1959, is that in the Notarial Registry of the notary, Gatdula, did not resort to relatives or friends is, likewise explainable: it would
the ratification of the testament appears among the entries for 1954, have meant the disclosure of the terms of her will to those interested
as well as in the corresponding copies (Exhibit I) filed by him with in her succession but who were not favored by her, thereby exposing
Bonifacio Sumulong, the employee in charge of the Notarial Section her to unpleasant importunity and recriminations that an aged person
of the Clerk of Court's office, who produced them at the trial upon would naturally seek to avoid. The natural desire to keep the making
subpoena, and who testified to his having searched for and found of a will secret can, likewise, account for the failure to probate the
them in the vaults of the Clerk of Court's office. No evidence exists testament during her lifetime.
that these documents were not surrendered and filed at the Clerk of
Court's office, as required by law, and in the regular course of official We conclude that the trial court committed no error in finding
duty. Certainly, the notary could not have reported in 1954 what did the appellant's evidence established at most grounds for suspicion
not happen until 1958. but fell far short of establishing actual exercise of improper pressure
or influence. Considering that testarix considered proponent as her
In view of the evidence, we do not feel justified in concluding own son, to the extent that she expressed no objection to his being
that the trial court erred in accepting the concordant testimony of the made the sole heir of her sister, Florentina Cruz, in derogation of her
instrumental witnesses as warranting the probate of the will in own rights, we find nothing abnormalin her instituting proponent also
question, taking into account the unexcelled opportunity of the court as her own beneficiary. As stated by the Court in the Knutson case
a quo to observe the demeanor, and judge the credibility, of the �
witness thereby. Furthermore, it would not be the first time in this
jurisdiction that a will has been admitted to probate even if the The truth of the matter is that bequests and devises to those in whom
instrumental witness testified contrary to the other two, provided the the testator has confidence and who have won his affection are more
court is satisfied, as in this case, that the will was executed and likely to be free from undue influence that bequests or devises to
attested in the manner provided by law (Fernandez vs. Tantoco, 49 others. (In re Knutson's Will, 41 Pac. 2d 793). Appellants invoked
Phil. 380; Tolentino vs. Francisco, 57 Phil. 742; Cuyugan vs. Baron, presumption of undue influence held to exist by American authorities
69 Phil. 639; Ramirez vs. Butte, 100 Phil 635). There is greater where the beneficiary participates in the drafting of execution of the
reason to admit the will to probate where only the testimony of one will favoring him; but since the will was prepared by Atty. Pascual,
witness is subjected to serious, if unsuccessful attack. although nephew of the proponent, we do not think the presumption
applies; for in the normal course of events, said attorney would follow
Contestants further assail the admission to probate on the the instructions of the testatrix; and a member of the bar in good
ground that the execution of the will was tainted by fraud and undue standing may not be convicted of unprofessional conduct, or of
influence exerted by proponent on the testarix, and affirm that it was having conspired to falsify a statement, except upon clear proof.
error for the lower court to have rejected their claim. Said the court in
this regard (Record on Appeal, page 87): The charge of fraud, being premised on the existence of undue
influence, needs no separate discussion. WHEREFORE, the decree
Before considering the correctness of these findings, it is worthwhile of probate appealed from is affirmed;
to recall the basic principles on undue pressure and influence as laid
down by the jurisprudence of this Court: that to be sufficient to XI. LEGITIME
avoid a will, the influence exerted must be of a kind that so
overpowers and subjugates the mind of the testator as to A. Concept.
destroy his free agency and make him express the will of
another rather than his own (Coso vs. Fernandez Deza, 42 Phil. 52
596; Icasiano vs. Icasiano, L-18979, 30 June 1964; Teotico vs. Del
Val, L-18753, 26 March 196); that the contention that a will was
obtained by undue influence or improper pressure cannot be

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Wills & Succession/ Atty Uribe In all cases of illegitimate children, their filiation must be duly
proved.
Art. 886. Legitime is that part of the testator's property which he
cannot dispose of because the law has reserved it for certain The father or mother of illegitimate children of the three classes
heirs who are, therefore, called compulsory heirs. (806) mentioned, shall inherit from them in the manner and to the
extent established by this Code. (807a)
Three principal systems of distribution of hereditary property:
1. Absolute freedom of disposition Compulsory heirs are those who succeed whether the testator likes it
2. Total reservation or not and they cannot be deprived of their legitime except only by
3. Partial reservation disinheritance.

T: Considering the customs and traditions of the Filipinos for the An heir, of whatever class is absolutely free to accept or renounce
sake of family solidarity, the present code preserved the system of the inheritance because the law on legitime is a restriction not on the
legitimes. However, changes have been made as follows: freedom of the heir to accept or repudiate, but on the freedom of
testator to dispose of his property.
1. with respect to the amounts of that coumpulsory heirs receive;
2. illegitimate children have been made compulsory heirs though with Kinds of Compulsory heirs:
a smaller legitime;
3. legitime of surviving spouse has been changed from a mere 1. Primary – those who exclude other compulsory heirs ex.
usufruct to a full ownership. Legit children & ascendants
4. eliminates the mejora which resulted in the increase of both the
legitime and the free portion 2. secondary – succeed only in the absence of the primary.
ex. Legit parents & ascenadants
Thus, Justice JBL Reyes has this to say:
3. Concurring – succeed together with the primary and
The increase of the legitime to ½ as against the 1/3 in the old code, secondary cannot be excluded by them. Ex. Widow/er &
and the suppression of the mejora, operate to limit the freedom of illegit children
choice of the testator to a greater extent than under the old code, for
the testator, under that law, could at least select the individual Legitimate children and ascendants – in the ordinary course of
descendants who should receive the third betterment. nature father or mother die ahead of the child; the law confers
preferential legitimary rights upon them. Thus the law intends that
Jurisprudence, however, interpreted the ultimate purpose of the property of the decedent pass not to strangers but to his natural
systems of legitime. It is a limitation upon the freedom of the testator successor.
to dispose of his property. Its purpose is to protect those heirs, for
whom the testator is presumed to have an obligation to reserve Legitimated Children – the NCC is silent as to this kind of children
certain portions of his estate, from his unjust ire or weakness or but the Family code under Art. 272 grants the same rights to
thoughtlessness. legitimated as that of the legitimate. Hence they are included as a
compulsory heir.
Ratio of the free portion:
1. An owner’s jus disponendi Adopted Children – Art. 189 of the FC provides that for civil
2. man as a member of society can entertain not only familial purposes, the adopted shall be deemed a legitimate child of the
affections, but also legitimate affections to his fellowmen, adopters and both shall acquire reciprocal rights and obligations from
thus, should not be absolutely be restrained from disposing a parent-child relationship. Hence, considered as legitimate child of
property according to dictates of generosity. the deceased adopting parent both as CH and LH.

The legitime does not consist in determinate or specific property Illegitimate Parents – they are compulsory heirs only in the absence
which the testator must reserve for his compulsory heirs. It consists of legitimate, or illegitimate children of the decedent as provided
of a part of fraction of the entire mass of the hereditary estate. The under Art. 903.
standard for determination is fixed by law, but quantity may vary
according to number and relation of the heirs to the testator. Adopting parents – they are not compulsory heirs of the adopted
child because Art. 190 of the FC only provides that they shall be
B. Who are entitled? legal heirs of the deceased adopted and is silent as to their
becoming compulsory heir. This indicates that the latter was not
Art. 887. The following are compulsory heirs: intended.

(1) Legitimate children and descendants, with respect Ratio: Adoption is for the benefit of the adopted, and unless the law
to their legitimate parents and ascendants; clearly intends to favor the adopter, all doubts should be resolved
against him. Because of the silence of the law on legitimes, he
(2) In default of the foregoing, legitimate parents and cannot be entitiled to the legitime of the legitimate parents; and in the
ascendants, with respect to their legitimate children law of testacy , he is not given, in general, the same rights as a
and descendants; legitimate parent but only such as are specifically provided in Article
190 of the FC. Legitimes of CH are restrictions on the freedom of the
(3) The widow or widower; testator and must not be presumed but viewed strictly.

(4) Acknowledged natural children, and natural Illegitimate Children – the FC abolished the distinctions in the old
children by legal fiction; civil code thus merging them to one group.

(5) Other illegitimate children referred to in Article 287. Social and humanitarian reasons justify this grant of rights. These
children are brought to the world without their fault and under
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not circumstances beyond their control. To leave illegitimate children w/o
excluded by those in Nos. 1 and 2; neither do they exclude one successional rights not only weighs them down with the moral
another.
53
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Wills & Succession/ Atty Uribe (daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales
(son), 1/4.
handicap of their status but also denies them the material assistance
which they may need after their parent’s death so as not to become This declaration was reiterated by the trial court in its Order dated
social burdens. February 4, 1975. These Orders notwithstanding, Irenea Rosales
insisted in getting a share of the estate in her capacity as the
They are not required to be recognized by putative parents but must surviving spouse of the late Carterio Rosales, son of the deceased,
only prove their filiation. claiming that she is a compulsory heir of her mother-in-law together
with her son, Macikequerox Rosales.
In the enforcement of this new right it is the death of the parent which
determines the right of the child to succeed and not the birth of the In sum, the petitioner poses two (2) questions for Our resolution.
latter. First — is a widow (surviving spouse) an intestate heir of her mother-
in-law? Second — are the Orders of the trial court which excluded
Surviving Spouse – there should be a valid marriage between the the widow from getting a share of the estate in question final as
deceased and the surviving spouse. Thus, the following marriages against the said widow?
has different effect on the capacity of the widow or widower to
succeed: Our answer to the first question is in the negative. Intestate or legal
heirs are classified into two (2) groups, namely, those who inherit by
1. null and void marriages such as incestuous or bigamous their own right, and those who inherit by the right of representation.
ones. Except in cases of bigamous marriages where two 1 Restated, an intestate heir can only inherit either by his own right,
wives contract in good faith with the same husband, both as in the order of intestate succession provided for in the Civil Code,
are entitled to inherit equally from the deceased husband. 2 or by the right of representation provided for in Article 981 of the
same law.
2. Voidable marriages entitle the widow/er to legitime
because there exists a valid marriage until it is annulled. There is no provision in the Civil Code which states that a widow
Thus, once annulled before death of a spouse they are (surviving spouse) is an intestate heir of her mother-in-law. The
incapacitated to inherit. However, pending the case of entire Code is devoid of any provision which entitles her to inherit
annulment and one spouse dies the widow/er, from her mother-in-law either by her own right or by the right of
nevertheless, inherits the legitime because the marriage representation. The provisions of the Code which relate to the order
can no longer be annulled after death of one. of intestate succession (Articles 978 to 1014) enumerate with
meticulous exactitude the intestate heirs of a decedent, with the
3. Legal separation of the spouses before death entitles the State as the final intestate heir. The conspicuous absence of a
widow/er the Legitime if he /she is the innocent spouse. provision which makes a daughter-in-law an intestate heir of the
Unless reconciliation occurred before the death of the deceased all the more confirms Our observation. If the legislature
spouse, the survivor will inherit regardless of his guilt. In intended to make the surviving spouse an intestate heir of the
such case that the decree is pending upon death of one parent-in-law, it would have so provided in the Code.
spouse then the decision should be awaited. The fact that The aforesaid provision of law 3 refers to the estate of the deceased
the innocent spouse instituted the legal separation spouse in which case the surviving spouse (widow or widower) is a
manifest his desire to not to allow the guilty spouse to compulsory heir. It does not apply to the estate of a parent-in-law.
benefir fro his estate. The accident of death should not Indeed, the surviving spouse is considered a third person as regards
defeat this purpose. the estate of the parent-in-law

4. Separation in fact by amicable settlement does not By the same token, the provision of Article 999 of the Civil Code
incapacitate the guilty spouse to inherit though there may aforecited does not support petitioner's claim. A careful examination
be valid grounds for legal separation there being no judicial of the said Article confirms that the estate contemplated therein is the
decree, the right of legitime is preserved. estate of the deceased spouse. The estate which is the subject
matter of the intestate estate proceedings in this case is that of the
Art. 902. The rights of illegitimate children set forth in the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is
preceding articles are transmitted upon their death to their from the estate of Petra V. Rosales that Macikequerox Rosales
descendants, whether legitimate or illegitimate. (843a) draws a share of the inheritance by the right of representation as
provided by Article 981 of the Code.
The article allows the legitimate and illegitimate descendants to
represent the illegitimate child who predecease his own parent. But Article 971 explicitly declares that Macikequerox Rosales is called to
the illegitimate children of of an illegitimate child can represent the succession by law because of his blood relationship. He does not
latter only in the rights “set forth in the preceding articles” namely succeed his father, Carterio Rosales (the person represented) who
894, 895, 896, 899, and 901. predeceased his grandmother, Petra Rosales, but the latter whom
his father would have succeeded. Petitioner cannot assert the same
The criticism on this article is that the law gives better rights to the right of representation as she has no filiation by blood with her
illegitimate children of an illegitimate child and not to the illegitimate mother-in-law.
children of a legitimate child. This is absurd since the position of the
illegitimate children is no better than or equal to that of the legitimate Petitioner however contends that at the time of the death of her
child. However, though unfair to the latter this is an express provision husband Carterio Rosales he had an inchoate or contingent right to
of law which we are confronted with. Thus, dura lex sed lex the properties of Petra Rosales as compulsory heir. Be that as it
may, said right of her husband was extinguished by his death that is
Rosales vs. Rosales why it is their son Macikequerox Rosales who succeeded from Petra
Rosales by right of representation. He did not succeed from his
In this Petition for Review of two (2) Orders of the Court of First deceased father, Carterio Rosales.
Instance of Cebu the question raised is whether the widow whose
husband predeceased his mother can inherit from the latter, her On the basis of the foregoing observations and conclusions, We find
mother-in-law. it unnecessary to pass upon the second question posed by the
petitioner. Accordingly, it is Our considered opinion, and We so hold,
In the course of the intestate proceedings, the trial court issued an that a surviving spouse is not an intestate heir of his or her parent-in-
Order dated June 16, 1972 declaring the following individuals the law. WHEREFORE, in view of the foregoing, the Petition is hereby
legal heirs of the deceased and prescribing their respective share of DENIED for lack of merit, with costs against the petitioner. Let this
the estate — Fortunato T. Rosales (husband) 1/4; Magna R. Acebes case be remanded to the trial court for further proceedings.

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Wills & Succession/ Atty Uribe The surviving spouse concurring with legitimate children receives
only equal to the legitime of each of the legitimate children and
C. Concurrence of compulsory heirs and their legitimes. ascendants.

Art. 888. The legitime of legitimate children and descendants What if there are no legitimate children only descendants? Does
consists of one-half of the hereditary estate of the father and of this mean that the spouse shall receive equal to each
the mother. descendants which may be even more than the number of
children of the deceased? NO. whatever the number of
The latter may freely dispose of the remaining half, subject to descendants is immaterial the divisor is still the number of children
the rights of illegitimate children and of the surviving spouse as they represent because the descendants only inherit by
hereinafter provided. (808a) representation. Even if all the children repudiate the legitime the
divisor shall still be the number of children. But if only some of the
The enlargement of the legitime and the free portion to half each is children repudiate, the basis of computation should be the number of
primarily the result of removal of the 1/3 mejora or betterment in the children who accept the inheritance
old code where the testator disposes a portion in favor of his
legitimate children for their betterment or reward. The NCC If the surviving spouse receives a devise or legacy, is he entitiled to
eliminated the mejora for the following reasons: the same in addition to his legitime?

1. The natural inequalities among children is but imaginary T: if the testator gives a devise or legacy to the surviving spouse, and
and parent reward merely on better qualities of one there is enough of the portion subject to his disposal which can cover
children such devise or legacy, then the surviving spouse should get the
devise or legacy in addition to his legitime. To merge the devise or
2. such reward may be effected by the father or mother by legacy in the legitime would leave a part of the free portion
disposing of part or all of the free half undisposed of; this is contrary to the policy of law against intestate
succession and against the express will of the testator. We believe,
3. the testator should have greater freedom to dispoe of his therefore, that the devise or legacy should be first taken from the
estate by will remaining disposable portion, and if there is any excess of the devise
or legacy over the disposable portion, that excess charged against or
the supposed free portion is not always disposable by the testator; it merged in the legitime of the surviving spouse.
is expressly made subject to the rights of illegitimate children and the
surviving spouse. Only the remainder thereafter shall be disposable, If however, the legitime of the surviving spouse is already protected
if there is any left. by the disposition giving him an amount or portion equivalent to that
legitime, then he cannot ask for more unless, the testator provides it
Art. 889. The legitime of legitimate parents or ascendants as addition to his legitime.
consists of one-half of the hereditary estates of their children
and descendants. Art. 893. If the testator leaves no legitimate descendants, but
leaves legitimate ascendants, the surviving spouse shall have a
The children or descendants may freely dispose of the other right to one-fourth of the hereditary estate.
half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (809a) This fourth shall be taken from the free portion of the estate.
(836a)
Art. 890. The legitime reserved for the legitimate parents shall
be divided between them equally; if one of the parents should Art. 894. If the testator leaves illegitimate children, the surviving
have died, the whole shall pass to the survivor. spouse shall be entitled to one-third of the hereditary estate of
the deceased and the illegitimate children to another third. The
If the testator leaves neither father nor mother, but is survived remaining third shall be at the free disposal of the testator. (n)
by ascendants of equal degree of the paternal and maternal
lines, the legitime shall be divided equally between both lines. If Art. 895. The legitime of each of the acknowledged natural
the ascendants should be of different degrees, it shall pertain children and each of the natural children by legal fiction shall
entirely to the ones nearest in degree of either line. (810) consist of one-half of the legitime of each of the legitimate
children or descendants.
Art. 892. If only one legitimate child or descendant of the
deceased survives, the widow or widower shall be entitled to The legitime of an illegitimate child who is neither an
one-fourth of the hereditary estate. In case of a legal separation, acknowledged natural, nor a natural child by legal fiction, shall
the surviving spouse may inherit if it was the deceased who had be equal in every case to four-fifths of the legitime of an
given cause for the same. acknowledged natural child.

If there are two or more legitimate children or descendants, the The legitime of the illegitimate children shall be taken from the
surviving spouse shall be entitled to a portion equal to the portion of the estate at the free disposal of the testator,
legitime of each of the legitimate children or descendants. provided that in no case shall the total legitime of such
illegitimate children exceed that free portion, and that the
In both cases, the legitime of the surviving spouse shall be legitime of the surviving spouse must first be fully satisfied.
taken from the portion that can be freely disposed of by the (840a)
testator. (834a)
Article repealed by Article 176 of the Family Code which provides
T: As to legitimate children, the law makes no distinction whether of that the legitime of each illegitimate children is one-half of that of
the previous marriage or the marriage dissolved by death, hence, legitimate child.
children in both cases are included

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Wills & Succession/ Atty Uribe Presupposes that the surviving spouse is the only compulsory heir.

Ratio: the law rewards more the fruits of legal unions, thus, giving T: We believe that this rule will apply only when the deceased is the
preference and greater portion of the hereditary estate. However, for spouse who was at the point of death at the time of marriage; hence,
humanitarian reasons the illegitimate children should not be it will not apply when the spouse who was at the point of death at the
disregarded because they are just as innocent and blameless as the time of marriage is the one who survives, and the other is the one
legitimate children for being born in this world beyond their control. who dies w/in three months after the marriage.

Limitations to the rights of Legitimate children: Ratio for the rule is the presumption that the marriage is contracted
exclusively for inheriting. However, this suspicion is erased if the
1. filiation must be proved spouses had been living together as husband and wife for at least
2. their share comes only from the free portion five years on account of companionship and affection for such length
3. surviving spouse is preferred over them, the legitme of the of time.

spouse is satisfied first This distinction does not apply to intestacy
4. their share is susceptible of proportionate reduction if their
Art. 901. When the testator dies leaving illegitimate children and
total legitimes exceeds the free portion no other compulsory heirs, such illegitimate children shall have
a right to one-half of the hereditary estate of the deceased.
Art. 896. Illegitimate children who may survive with legitimate
parents or ascendants of the deceased shall be entitled to one- The other half shall be at the free disposal of the testator. (842a)
fourth of the hereditary estate to be taken from the portion at
the free disposal of the testator. (841a) Art. 903. The legitime of the parents who have an illegitimate
child, when such child leaves neither legitimate descendants,
Art. 897. When the widow or widower survives with legitimate nor a surviving spouse, nor illegitimate children, is one-half of
children or descendants, and acknowledged natural children, or the hereditary estate of such illegitimate child. If only legitimate
natural children by legal fiction, such surviving spouse shall be or illegitimate children are left, the parents are not entitled to
entitled to a portion equal to the legitime of each of the any legitime whatsoever. If only the widow or widower survives
legitimate children which must be taken from that part of the with parents of the illegitimate child, the legitime of the parents
estate which the testator can freely dispose of. (n) is one-fourth of the hereditary estate of the child, and that of the
surviving spouse also one-fourth of the estate. (n)
Art. 898. If the widow or widower survives with legitimate
children or descendants, and with illegitimate children other It must be noted that in illegitimate filiation, the right to succeed in the
than acknowledged natural, or natural children by legal fiction, ascending line terminates with the parent of the deceased illegitimate
the share of the surviving spouse shall be the same as that child. There is, therefore, no reciprocity of successional reights
provided in the preceding article. (n) between the illegitimate grandparent and the illegitimate grandchild.

The Family Code has already abolished the distinction between P.D. 603; Art. 39. Effects of Adoption. - The adoption shall:
natural and other illegitimate children placing them under one
category of illegitimate children. (1) Give to the adopted person the same rights and
duties as if he were a legitimate child of the adopter:
Art. 899. When the widow or widower survives with legitimate Provided, That an adopted child cannot acquire
parents or ascendants and with illegitimate children, such Philippine citizenship by virtue of such adoption:
surviving spouse shall be entitled to one-eighth of the
hereditary estate of the deceased which must be taken from the (2) Dissolve the authority vested in the natural parent
free portion, and the illegitimate children shall be entitled to or parents, except where the adopter is the spouse of
one-fourth of the estate which shall be taken also from the the surviving natural parent;
disposable portion. The testator may freely dispose of the
remaining one-eighth of the estate. (n) (3) Entitle the adopted person to use the adopter's
surname; and
T: This seems to be an unjustified discrimination against the
surviving spouse because he receives a graeter or an equal amount (4) Make the adopted person a legal heir of the
when she survives with either the IC or the LP but with both at the adopter: Provided, That if the adopter is survived by
same time she only receives a measly 1/8 of the estate. legitimate parents or ascendants and by an adopted
Undoubtedly, the code seems to have wanted to save portion of the person, the latter shall not have more successional
estate for the free disposal of the deceased. This is not a sufficient rights than an acknowledged natural child: Provided,
justification for discriminating against the surviving spouse and further, That any property received gratuitously by the
destroying the balance between the legitimes, after vall, there are adopted from the adopter shall revert to the adopter
instances in w/c the free portion is merely theoretical. should the former predecease the latter without
legitimate issue unless the adopted has, during his
Art. 900. If the only survivor is the widow or widower, she or he lifetime, alienated such property: Provided, finally,
shall be entitled to one-half of the hereditary estate of the That in the last case, should the adopted leave no
deceased spouse, and the testator may freely dispose of the property other than that received from the adopter,
other half. (837a) and he is survived by illegitimate issue or a spouse,
such illegitimate issue collectively or the spouse shall
If the marriage between the surviving spouse and the testator receive one-fourth of such property; if the adopted is
was solemnized in articulo mortis, and the testator died within survived by illegitimate issue and a spouse, then the
three months from the time of the marriage, the legitime of the former collectively shall receive one-fourth and the
surviving spouse as the sole heir shall be one-third of the latter also one-fourth, the rest in any case reverting to
hereditary estate, except when they have been living as
husband and wife for more than five years. In the latter case, the 56
legitime of the surviving spouse shall be that specified in the
preceding paragraph. (n)

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Wills & Succession/ Atty Uribe But when it is not evedent that the testator has forgotten the
compulsory heir and it appears as a fact that the compulsory heir had
the adopter, observing in the case of the illegitimate already received something in the way of advance upon his legitime,
issue the proportion provided for in Article 895 of the it cannot be presumed that the testator had forgotten the compulsory
Civil Code. heir. There is no real preterition, although nothing has been left by
will to the CH. The purpose of Article 906 evidently is to give the
The adopter shall not be a legal heir of the adopted person, compulsory heir only that ehich has been reserved for him by the
whose parents by nature shall inherit from him, except that if law, nothing less nothing more. If he was not forgotten then he is
the latter are both dead, the adopting parent or parents take the entitled only to that which the testator cannot deprive him.
place of the natural parents in the line of succession, whether
testate or interstate. Even when the CH has not been mentioned in the will or has not
been gien an advance on his legitime, if the testamentary
D. Restrictions regarding the legitime dispositions do not cover the entire estate but something is left
undisposed, and the CH is also a compulsory heir is also an intestate
Art. 904. The testator cannot deprive his compulsory heirs of heir. The indisposed portion would pass by the rule of intestacy to
their legitime, except in cases expressly specified by law. the CH; if it is not enough to cover his legitime, then he may ask for
the completion of such legitme. It is to be presumed that the testator
Art. 872. The testator cannot impose any charge, condition, or intended to give him the undisposed portion.
substitution whatsoever upon the legitimes prescribed in this
Code. Should he do so, the same shall be considered as not Art. 907. Testamentary dispositions that impair or diminish the
imposed. (813a) legitime of the compulsory heirs shall be reduced on petition of
the same, insofar as they may be inofficious or excessive. (817)
The legitime goes to the heir by operation of law and not by the will
of the testator; hence it cannot be subject to the freedom of the latter Only the CHs whose legitme has been impaired can avail of the right
to impose encumbrances, conditions and substitutions. Any to ask for the reduction of inofficious donations, devises, or legacies.
encumbrance is simply disregarded and considered as not written.
The CH’s right to the legitime is free, unencumbered, and pure. Art. 1347. All things which are not outside the commerce of
men, including future things, may be the object of a contract. All
Art. 905. Every renunciation or compromise as regards a future rights which are not intransmissible may also be the object of
legitime between the person owing it and his compulsory heirs contracts.
is void, and the latter may claim the same upon the death of the
former; but they must bring to collation whatever they may have No contract may be entered into upon future inheritance except
received by virtue of the renunciation or compromise. (816) in cases expressly authorized by law.

1. The future legitime between is merely an expectancy, and All services which are not contrary to law, morals, good
the heir does not acquire any right over the same until customs, public order or public policy may likewise be the
death of testator. object of a contract. (1271a)

2. The renunciation or compromise does not become valid by It is essential that the object must be in existence at the time of
the mere failure of the compulsory heirs to assert its perfection of the contract, or that it has the possibility or potentiality
invalidity because the matter of its legal effect cannot be of coming into existence at some future time. By way of exception,
left to the will of the parties. the law generally does not allow contracts on future inheritance. In
order to be future inheritance, the succession must not have been
3. all renunciations of future legitimes are void. However, a opened at the time of the contract. A contract to fall within the
mere statement made by a son of the properties ne has prohibition of this article, the following requisites are necessary: 1.
received from his father, still living, for the purpose of that the succession is yet to be opened. 2. the object forms part of
taking the same into account in case of partition in the the inheritance. 3. the promissor has an expectant right over the
event the father dies, is not a renunciation or compromise object which is purely hereditary in nature.
on future legitime.
An agreement to partition an estate of a living person by those who
4. Since the legitime is a part of the inheritance, and a inherit from him is void. A contract renouncing the right to inherit from
compromise is contract, it is obvious that all compromises one who is still alive is void.
on future legitimes, by and between the heirs themselves
to the exclusion of the testator, must be held void if not After the death of the person, however, the properties and rights left
under this article, under the general prohibition of Art. by him by way of inheritance can be the subject matter of a contract
1347. among or by his heirs, even before a partition thereof has been
made, because the rights of the heirs are transmitted to them from
5. the nullity of the renunciation or compromise may be the death of the predecessor.
claimed, not only by the CH who made it, by co-heirs
prejudiced thereby. When the object of the contract is not a part of the inheritance, the
prohibition does not apply, even if delivery of such object is
6. the giving of donations as advance of the legitime is not dependent upon the death of one of the contracting parties. Thus, life
prohibited by this article nor 1347 but governed by rules on insurance contracts, and stipulations providing for reversion of
donation and the reduction thereof whenever inofficoius. property donated in marriage settlements in the event of the death of
the donee, are valid. Likewise, if the right of the party over the thing
Art. 906. Any compulsory heir to whom the testator has left by is not by virtue of succession, but as creditor, the contract does not
any title less than the legitime belonging to him may demand fall within the prohibition of this article. It has been held that in a
that the same be fully satisfied. (815) contract of purchase by co-owners, it is valid to stipulate that in the
event of death of any of them, those who survive will acquire the
By the word testator, irt is believed thiat this principle applies only share of the predeceased.
when that which has been left is in a will or testament. If there is no
testatmentery disposition in his favor, the heir cannot ask for E. Determination of computation
completion of his legitime, because there is nothing to complete;
instead, there should be case of preterition or total omission, and in 57
such case the forced heir in the direct line is entitled to ask, not
merely for the completion of his legitime, but for the annulment of the
institution of heir.

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Wills & Succession/ Atty Uribe Any donation to the grandchild is not subject to collation because the
same is not a CH but it may be charged against the free portion as a
Art. 908. To determine the legitime, the value of the property left donation to stranger.
at the death of the testator shall be considered, deducting all
debts and charges, which shall not include those imposed in When the donation to a compulsory heir exceeds his legitime, the
the will. excess is chargeable against the free portion which is at the disposal
of the the testator, just as any donation to stranger, subject to the
Steps to determine legitime: resk of reduction.

1. Determination of the value of the property which remains If the donation to a stranger exceeds the free portion, then it will have
at the time of the testator’s death; either by: to be reduced as inofficious. The purpose of the law is not to prevent
the stranger from getting more from the inheritance, but to ascertain
a. judicial proceedings in the settlement of the that the CH do not get less than what pertains to them as legitime.
estate assisted by tax appraisers
Art. 911. After the legitime has been determined in accordance
b. true value of the property not merely assessed with the three preceding articles, the reduction shall be made as
value for taxation purposes follows:

2. determination of the obligations, debts, and charges which (1) Donations shall be respected as long as the
have to be paid out or deducted from the value of the legitime can be covered, reducing or annulling, if
property necessary, the devises or legacies made in the will;

3. the difference between the assets and the liabilities, giving (2) The reduction of the devises or legacies shall be
rise to the net hereditary estate; pro rata, without any distinction whatever.

4. addition to the net value of the estate of donations subject If the testator has directed that a certain devise or
to collation legacy be paid in preference to others, it shall not
suffer any reduction until the latter have been applied
5. determination of the amount of legitimes by getting from in full to the payment of the legitime.
the total thus found the portion that the law provides as the
legitimes of each respective CH. (3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than
The remainder after deduction of the debts and charges is the net that of the disposable portion, the compulsory heirs
hereditary estate. may choose between complying with the testamentary
provision and delivering to the devisee or legatee the
Collation, in the first concept is the imaginary or fictitious part of the inheritance of which the testator could
reconstitution of the estate of the testator by mere mathematical freely dispose. (820a)
process of adding all that is donated during the lifrtime of the testator
to CH or strangers. Donation intervivos is preferred over disposition mortis causa. Ratio:

The second concept entails that property donated by the testator 1. Donation intervivos are by nature irrevocable to allow
during his lifetime must be brought back actually and returened to the annulment on account of legacies and devise in excess of
hereditary estate whenever it is found that such donation exceeds free portion in effect allows the revocation to depend on
the disposable portion of the estate. The purpose of which is to the will of the donor-testator.
complete the assets necessary for the payment of the shares of the
compulsory heirs. 2. Donation is a bilateral act based on the sgreement of
donor and donee while a will is unilateral;
Collation is thus for the benefit of the CH, and not the creditors of the
decedent. The presence of the latter, however, must be determined 3. Priority in time is priority in right.
at the time of the testator’s death, not at the time the donation was
made. The value of the property donated, however, is determined on The article provides a rule on preference to determine which devise
the date the donations were made. or legacy is to be reduced whenervr it execeeds the free portion or to
the extent that it impairs the legitime.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to Art. 950 also provides the following order of reduction of legacy or
collation, at the time he made them. (818a) devise:

Art. 909. Donations given to children shall be charged to their 1. remunatory legacy or devise;
legitime. 2. legacy or devise declared by testator to be preferred;
3. legacies for support;
Donations made to strangers shall be charged to that part of the 4. legacies for education;
estate of which the testator could have disposed by his last will. 5. specific determinate thing ehich form part of the estate;
6. all others pro rata.
Insofar as they may be inofficious or may exceed the disposable
portion, they shall be reduced according to the rules Where lies the distintion bet. 950 and 911?
established by this Code. (819a)
Article 911 will apply as to the manner of reducing legacies:
Art. 910. Donations which an illegitimate child may have
received during the lifetime of his father or mother, shall be a. when reduction is necessary to
charged to his legitime. preserve legitime of CH from

Should they exceed the portion that can be freely disposed of, 58
they shall be reduced in the manner prescribed by this Code.
(847a)

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Wills & Succession/ Atty Uribe should be considered applicable to all objects whether movable or
immovable, of the same nature, such as vessels.
impairment wheter there are donation
inter vivos; Query: if the reduction should be exactly ½ of the value, does it
b. when although legitime has been mean that the hir gets to retain it not being less than ½? “does not
preserve by the testator, by giving absorb ½”
sufficient portion to cover legitime of
CH, thereare donations inter vivos It is submitted that the thing should be retained by the devisee. The
concurring with legacies or devises intention of the testaor in making a devise of a determinate object is
within the free portion. clearly so that the legatee may enjoy that particular property. Out of
respect for this intention, and since the will of the testator is the
Article 950 applies when the question of reduction is exclusively governing law in the succession, the thing should be given to the
among the legatees themselves, either because ther are no devisee in case he is entitled to half its value and the heirs the other
compulsory heirs, or because the legitme of CH has already been half.
provided for by the testator in his will and there are no donation inter
vivos. Summary of Legitimes of Compulsory Heirs

As to usufruct, use or habitation, or life annuity there shall be taken 1. Legitimate Children with other CH
into account the probable life of the beneficiary in accordance with
the American Tropical Experience table at 8% per annum. c. LC alone – ½
d. 1 LC w/ SS- ½, ¼
Donations are reduced first the most recent ones with regard the e. 2 or more LC w/ SS – ½, same as 1 LC receives
excess. Thus, priority in time priority in right. If several donations f. LC w/ IC – ½, half of 1 LC
made on the same date they are reduced pro rata g. 1LC, SS, IC – ½, ¼, half of 1 LC
h. LCs, SS, IC – ½, same as 1 LC, half of 1 LC
A property donated once alienated by donee cannot be set aside. It
would be dangerous to the stability of property and inimical to the 2. Legitimate Parents & Ascendants w/ other CH
freedom of alienation.
a. LPA alone – 1/2
In the above instance, can the inofficious part of the donation be b. LPA w/ SS – ½, ¼
taken from other proerty of the donee? c. LPA w/ IC – ½, ¼
d. LPA, SS, IC – ½, 1/8, ¼
We believe that in such case the donee should be made to respond
fro the value of the excess or inofficoius part. It was the act of the 3. Illegitimate Children w/ other IC
donee which made it impossible to recover the inofficoius part to the
hereditary estate. He is conclusively presumed to knoe that that the a. IC alone – ½
donation stands the risk of reduction. b. IC w/ SS – 1/3, 1/3

What if the donee is insolvent and cannot return anything to the 4. Surviving Spouse alone – ½
estate to complete the impaired legitime; who shall bear the loss?
Except in articulo mortis marriage and spouse dies w/in 3 mos.
It is submitted that that the amount to be returned by the insolvent Surviving spouse entitled only to 1/3
must be borne and paid by those whose donation are within the free
portion. As between the compulsory heir, whose rights are derived 5. Illegitimate Parents w/ other CH
from law, and the donees, whose rights spring from the will of the
deceased, the former should be protected from the impairment of a. IP alone – ½
their shares. b. IP w/ LC or IC – excluded by the latter
c. IP w/ SS – ¼, ¼
Art. 912. If the devise subject to reduction should consist of real
property, which cannot be conveniently divided, it shall go to COLLATION
the devisee if the reduction does not absorb one-half of its
value; and in a contrary case, to the compulsory heirs; but the Art. 1061. Every compulsory heir, who succeeds with other
former and the latter shall reimburse each other in cash for what compulsory heirs, must bring into the mass of the estate any
respectively belongs to them. property or right which he may have received from the
decedent, during the lifetime of the latter, by way of donation, or
The devisee who is entitled to a legitime may retain the entire any other gratuitous title, in order that it may be computed in
property, provided its value does not exceed that of the the determination of the legitime of each heir, and in the
disposable portion and of the share pertaining to him as account of the partition. (1035a)
legitime. (821)
Art. 1062. Collation shall not take place among compulsory
Art. 913. If the heirs or devisees do not choose to avail heirs if the donor should have so expressly provided, or if the
themselves of the right granted by the preceding article, any donee should repudiate the inheritance, unless the donation
heir or devisee who did not have such right may exercise it; should be reduced as inofficious. (1036)
should the latter not make use of it, the property shall be sold at
public auction at the instance of any one of the interested Art. 1063. Property left by will is not deemed subject to
parties. (822) collation, if the testator has not otherwise provided, but the
legitime shall in any case remain unimpaired. (1037)
T: Division under this article means a material division, which is
inconvenient, because the the property is not susceptible of such Art. 1064. When the grandchildren, who survive with their
division, or because it will lose or diminish its value or utitlity when so uncles, aunts, or cousins, inherit from their grandparents in
divided. Hence, although the law specifically refers only to devise, it
59
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Wills & Succession/ Atty Uribe If the property donated was movable, the co-heirs shall only
have a right to select an equivalent of other personal property of
representation of their father or mother, they shall bring to the inheritance at its just price. (1048)
collation all that their parents, if alive, would have been obliged
to bring, even though such grandchildren have not inherited the Art. 1075. The fruits and interest of the property subject to
property. collation shall not pertain to the estate except from the day on
which the succession is opened.
They shall also bring to collation all that they may have received
from the decedent during his lifetime, unless the testator has For the purpose of ascertaining their amount, the fruits and
provided otherwise, in which case his wishes must be interest of the property of the estate of the same kind and
respected, if the legitime of the co-heirs is not prejudiced. (1038) quality as that subject to collation shall be made the standard of
assessment. (1049)
Art. 1065. Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which may have Art. 1076. The co-heirs are bound to reimburse to the donee the
been donated by the latter to their children. (1039) necessary expenses which he has incurred for the preservation
of the property donated to him, though they may not have
Art. 1066. Neither shall donations to the spouse of the child be augmented its value.
brought to collation; but if they have been given by the parent to
the spouses jointly, the child shall be obliged to bring to The donee who collates in kind an immovable which has been
collation one-half of the thing donated. (1040) given to him must be reimbursed by his co-heirs for the
improvements which have increased the value of the property,
Art. 1067. Expenses for support, education, medical attendance, and which exist at the time the partition if effected.
even in extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject to collation. As to works made on the estate for the mere pleasure of the
(1041) donee, no reimbursement is due him for them; he has, however,
the right to remove them, if he can do so without injuring the
Art. 1068. Expenses incurred by the parents in giving their estate. (n)
children a professional, vocational or other career shall not be
brought to collation unless the parents so provide, or unless Art. 1077. Should any question arise among the co-heirs upon
they impair the legitime; but when their collation is required, the the obligation to bring to collation or as to the things which are
sum which the child would have spent if he had lived in the subject to collation, the distribution of the estate shall not be
house and company of his parents shall be deducted therefrom. interrupted for this reason, provided adequate security is given.
(1042a) (1050)

Art. 1069. Any sums paid by a parent in satisfaction of the debts Dizon-Rivera vs. Dizon
of his children, election expenses, fines, and similar expenses
shall be brought to collation. (1043a) On January 28, 1961, the testatrix, Agripina J. Valdez. a widow, died
in Angeles, Pampanga, and was survived by seven compulsory
Art. 1070. Wedding gifts by parents and ascendants consisting heirs, to wit, six legitimate children named Estela Dizon, Tomas V.
of jewelry, clothing, and outfit, shall not be reduced as Dizon, Bernardita Dizon, Marina Dizon (herein executrix-appellee),
inofficious except insofar as they may exceed one-tenth of the Angelina Dizon and Josefina Dizon, and a legitimate grand-daughter
sum which is disposable by will. (1044) named Lilia Dizon, who is the only legitimate child and heir of Ramon
Dizon, a pre-deceased legitimate son of the said decedent. Six of
Art. 1071. The same things donated are not to be brought to these seven compulsory heirs (except Marina Dizon, the executrix-
collation and partition, but only their value at the time of the appellee) are the oppositors-appellants.
donation, even though their just value may not then have been In her will, the testatrix divided, distributed and disposed of all her
assessed. properties appraised at P1,801,960.00 (except, two small parcels of
land appraised at P5,849.60, household furniture valued at
Their subsequent increase or deterioration and even their total P2,500.00, a bank deposit in the sum of P409.95 and ten shares of
loss or destruction, be it accidental or culpable, shall be for the Pampanga Sugar Development Company valued at P350.00) among
benefit or account and risk of the donee. (1045a) her abovenamed heirs.

Art. 1072. In the collation of a donation made by both parents, Testate proceedings were in due course commenced 2 and by
one-half shall be brought to the inheritance of the father, and order dated March 13, 1961, the last will and testament of the
the other half, to that of the mother. That given by one alone decedent was duly allowed and admitted to probate, and the
shall be brought to collation in his or her inheritance. (1046a) appellee Marina Dizon-Rivera was appointed executrix of the
testatrix' estate, and upon her filing her bond and oath of office,
Art. 1073. The donee's share of the estate shall be reduced by letters testamentary were duly issued to her.
an amount equal to that already received by him; and his co-
heirs shall receive an equivalent, as much as possible, in The real and personal properties of the testatrix at the time of her
property of the same nature, class and quality. (1047) death thus had a total appraised value of P1,811,695.60, and the
legitime of each of the seven compulsory heirs amounted to
Art. 1074. Should the provisions of the preceding article be P129,362.11. 3 (1/7 of the half of the estate reserved for the
impracticable, if the property donated was immovable, the co- legitime of legitimate children and descendants). 4 In her will, the
heirs shall be entitled to receive its equivalent in cash or testatrix "commanded that her property be divided" in accordance
securities, at the rate of quotation; and should there be neither with her testamentary disposition, whereby she devised and
cash or marketable securities in the estate, so much of the other bequeathed specific real properties comprising practically the entire
property as may be necessary shall be sold at public auction. bulk of her estate among her six children and eight grandchildren.

- jann - Under the oppositors' counter-project of partition, the testamentary
disposition made by the testatrix of practically her whole estate of
P1,801,960.01, as above stated, were proposed to be reduced to the

60

Wills & Succession/ Atty Uribe given full validity and effect. Aside from the provisions of Articles 906
and 907 above quoted, other codal provisions support the executrix-
amounts set forth after the names of the respective heirs and appellee's project of partition as approved by the lower court rather
devisees totalling one-half than the counter-project of partition proposed by oppositors-
while the other half of the estate (P905,534.78) would he deemed as appellants whereby they would reduce the testamentary disposition
constituting the legitime of the executrix-appellee and oppositors- or partition made by the testatrix to one-half and limit the same,
appellants, to be divided among them in seven equal parts of which they would consider as mere devises or legacies, to one-half
P129,362.11 as their respective legitimes. of the estate as the disposable free portion, and apply the other half
of the estate to payment of the legitimes of the seven compulsory
The lower court, after hearing, sustained and approved the executrix' heirs. Oppositors' proposal would amount substantially to a
project of partition, ruling that "(A)rticles 906 and 907 of the New Civil distribution by intestacy and pro tanto nullify the testatrix' will,
Code specifically provide that when the legitime is impaired or contrary to Article 791 of the Civil Code. It would further run counter
prejudiced, the same shall be completed and satisfied. While it is true to the provisions of Article 1091 of the Civil Code that "(A) partition
that this process has been followed and adhered to in the two legally made confers upon each heir the exclusive ownership of the
projects of partition, it is observed that the executrix and the property adjudicated to him.
oppositors differ in respect to the source from which the portion or
portions shall be taken in order to fully restore the impaired legitime. The burden of oppositors' contention is that the testamentary
The proposition of the oppositors, if upheld, will substantially result in dispositions in their favor are in the nature of devises of real property,
a distribution of intestacy, which is in controversion of Article 791 of citing the testatrix' repeated use of the words "I bequeath" in her
the New Civil Code" adding that "the testatrix has chosen to favor assignment or distribution of her real properties to the respective
certain heirs in her will for reasons of her own, cannot be doubted. heirs. From this erroneous premise, they proceed to the equally
This is legally permissible within the limitation of the law, as erroneous conclusion that "the legitime of the compulsory heirs
aforecited." With reference to the payment in cash of some passes to them by operation of law and that the testator can only
P230,552.38, principally by the executrix as the largest beneficiary of dispose of the free portion, that is, the remainder of the estate after
the will to be paid to her five co-heirs, the oppositors (excluding deducting the legitime of the compulsory heirs . . . and all
Tomas Dizon), to complete their-impaired legitimes, the lower court testamentary dispositions, either in the nature of institution of heirs or
ruled that "(T)he payment in cash so as to make the proper of devises or legacies, have to be taken from the remainder of the
adjustment to meet with the requirements of the law in respect to testator's estate constituting the free portion."
legitimes which have been impaired is, in our opinion, a practical and
valid solution in order to give effect to the last wishes of the testatrix." Oppositors' conclusions necessarily are in error. The testamentary
dispositions of the testatrix, being dispositions in favor of compulsory
m the lower court's orders of approval, oppositors-appellants have heirs, do not have to be taken only from the free portion of the estate,
filed this appeal, and raise anew the following issues: as contended, for the second paragraph of Article 842 of the Civil
Code precisely provides that "(O)ne who has compulsory heirs may
1. Whether or not the testamentary dispositions made in the dispose of his estate provided he does not contravene the provisions
testatrix' will are in the nature of devises imputable to the free of this Code with regard to the legitime of said heirs." And even going
portion of her estate, and therefore subject to reduction; by oppositors' own theory of bequests, the second paragraph of
Article 912 of the Civil Code covers precisely the case of the
2. Whether the appellants are entitled to the devise plus their executrix-appellee, who admittedly was favored by the testatrix with
legitime under Article 1063, or merely to demand completion of the large bulk of her estate in providing that "(T)he devisee who is
their legitime under Article 906 of the Civil Code; and entitled to a legitime may retain the entire property, provided its value
does not exceed that of the disposable portion and of the share
3. Whether the appellants may be compelled to accept pertaining to him as legitime." For "diversity of apportionment is the
payment in cash on account of their legitime, instead of some of usual reason for making a testament; otherwise, the decedent might
the real properties left by the Testatrix; as well die intestate." 18 Fundamentally, of course, the dispositions
by the testatrix constituted a partition by will, which by mandate of
The testator's wishes and intention constitute the first and principal Article 1080 of the Civil Code and of the other cited codal provisions
law in the matter of testaments, and to paraphrase an early decision upholding the primacy of the testator's last will and testament, have
of the Supreme Court of Spain. 9 when expressed clearly and to be respected insofar as they do not prejudice the legitime of the
precisely in his last will amount to the only law whose mandate must other compulsory heirs.
imperatively be faithfully obeyed and complied with by his executors,
heirs and devisees and legatees, and neither these interested parties Oppositors' invoking of Article 1063 of the Civil Code that "(P)roperty
nor the courts may substitute their own criterion for the testator's will. left by will is not deemed subject to collation, if the testator has not
Guided and restricted by these fundamental premises, the Court otherwise provided, but the legitime shall in any case remain
finds for the appellee. unimpaired" and invoking of the construction thereof given by some
authorities that "'not deemed subject to collation' in this article really
This was properly complied with in the executrix-appellee's project of means not imputable to or chargeable against the legitime", while it
partition, wherein the five oppositors-appellants namely Estela. may have some plausibility 19 in an appropriate case, has no
Bernardita, Angelina, Josefina and Lilia, were adjudicated the application in the present ease. Here, we have a case of a
properties respectively distributed and assigned to them by the distribution and partition of the entire estate by the testatrix, without
testatrix in her will, and the differential to complete their respective her having made any previous donations during her lifetime which
legitimes of P129,362.11 each were taken from the cash and/or would require collation to determine the legitime of each heir nor
properties of the executrix-appellee, Marina, and their co-oppositor- having left merely some properties by will which would call for the
appellant, Tomas, who admittedly were favored by the testatrix and application of Articles 1061 to 1063 of the Civil Code on collation.
received in the partition by will more than their respective legitimes. The amount of the legitime of the heirs is here determined and
undisputed.
This right of a testator to partition his estate by will was recognized
even in Article 1056 of the old Civil Code which has been reproduced With this resolution of the decisive issue raised by oppositors-
now as Article 1080 of the present Civil Code. The only amendment appellants, the secondary issues are likewise necessarily resolved.
in the provision was that Article 1080 "now permits any person (not a Their right was merely to demand completion of their legitime under
testator, as under the old law) to partition his estate by act inter Article 906 of the Civil Code and this has been complied with in the
vivos." 11 This was intended to repeal the then prevailing doctrine approved project of partition, and they can no longer demand a
12 that for a testator to partition his estate by an act inter vivos, he further share from the remaining portion of the estate, as bequeathed
must first make a will with all the formalities provided by law. and partitioned by the testatrix principally to the executrix-appellee.
Authoritative commentators doubt the efficacy of the amendment
13 but the question does not here concern us, for this is a clear case 61
of partition by will, duly admitted to probate, which perforce must be

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Wills & Succession/ Atty Uribe pamamagitan ng pagbibigay na di na mababawing muli" merely
described the donation as "irrevocable" and should not be construed
Neither may the appellants legally insist on their legitime being as an express prohibition against collation. 6 The fact that a
completed with real properties of the estate instead of being paid in donation is irrevocable does not necessarily exempt the subject
cash, per the approved project of partition. The properties are not thereof from the collation required under Article 1061.
available for the purpose, as the testatrix had specifically partitioned
and distributed them to her heirs, and the heirs are called upon, as We surmise from the use of such terms as "legitime" and "free
far as feasible to comply with and give effect to the intention of the portion" in the deed of donation that it was prepared by a lawyer, and
testatrix as solemnized in her will, by implementing her manifest wish we may also presume he understood the legal consequences of the
of transmitting the real properties intact to her named beneficiaries, donation being made. It is reasonable to suppose, given the precise
principally the executrix-appellee. The appraisal report of the language of the document, that he would have included therein an
properties of the estate as filed by the commissioner appointed by express prohibition to collate if that had been the donor's intention.
the lower court was approved in toto upon joint petition of the parties,
and hence, there cannot be said to be any question — and none is Anything less than such express prohibition will not suffice under the
presented — as to fairness of the valuation thereof or that the clear language of Article 1062. The suggestion that there was an
legitime of the heirs in terms of cash has been understated. The implied prohibition because the properties donated were imputable to
plaint of oppositors that the purchasing value of the Philippine peso the free portion of the decedent's estate merits little consideration.
has greatly declined since the testatrix' death in January, 1961 Imputation is not the question here, nor is it claimed that the disputed
provides no legal basis or justification for overturning the wishes and donation is officious. The sole issue is whether or not there was an
intent of the testatrix. The transmission of rights to the succession express prohibition to collate, and we see none.
are transmitted from the moment of death of the decedent (Article
777, Civil Code) and accordingly, the value thereof must be reckoned The intention to exempt from collation should be expressed plainly
as of then, as otherwise, estates would never be settled if there were and unequivocally as an exception to the general rule announced in
to be a revaluation with every subsequent fluctuation in the values of Article 1062. Absent such a clear indication of that intention, we
the currency and properties of the estate. There is evidence in the apply not the exception but the rule, which is categorical enough.
record that prior to November 25, 1964, one of the oppositors,
Bernardita, accepted the sum of P50,000.00 on account of her Locsin vs. CA
inheritance, which, per the parties' manifestation, 20 "does not in
any way affect the adjudication made to her in the projects of Mariano Locsin executed a Last Will and Testament instituting his
partition of either party as the same is a mere advance of the cash wife, Catalina, as the sole and universal heir of all his properties 3 .
that she should receive in both projects of partition." The payment in The will was drawn up by his wife's nephew and trusted legal
cash by way of making the proper adjustments in order to meet the adviser, Attorney Salvador Lorayes. Attorney Lorayes disclosed that
requirements of the law on non-impairment of legitimes as well as to the spouses being childless, they had agreed that their properties,
give effect to the last will of the testatrix has invariably been availed after both of them shall have died should revert to their respective
of and sanctioned. 21 That her co-oppositors would receive their sides of the family, i.e., Mariano's properties would go to his "Locsin
cash differentials only now when the value of the currency has relatives" (i.e., brothers and sisters or nephews and nieces), and
declined further, whereas they could have received them earlier, like those of Catalina to her "Jaucian relatives. 4 "
Bernardita, at the time of approval of the project of partition and
when the peso's purchasing value was higher, is due to their own Don Mariano Locsin died of cancer on September 14, 1948 after a
decision of pursuing the present appeal. lingering illness. In due time, his will was probated in Special
Proceedings No. 138, CFI of Albay without any opposition from both
De Roma vs. CA sides of the family. As directed in his will, Doña Catalina was
appointed executrix of his estate. Her lawyer in the probate
Candelaria de Roma had two legally adopted daughters, Buhay de proceedings was Attorney Lorayes. In the inventory of her husband's
Roma and Rosalinda de Roma. She died intestate on April 30, 1971, estate 5 which she submitted to the probate court for approval, 6
and administration proceedings were instituted in the Court of First Catalina declared that "all items mentioned from Nos. 1 to 33 are the
Instance of Laguna by the private respondent as guardian of private properties of the deceased and form part of his capital at the
Rosalinda. Buhay was appointed administratrix and in due time filed time of the marriage with the surviving spouse, while items Nos. 34
an inventory of the estate. This was opposed by Rosalinda on the to 42 are conjugal." 7
ground that certain properties earlier donated by Candelaria to
Buhay, and the fruits thereof, had not been included. 1 Among her own and Don Mariano's relatives, Doña Catalina was
closest to her nephew, Attorney Salvador Lorayes, her nieces, Elena
The properties in question consisted of seven parcels of coconut Jaucian, Maria Lorayes-Cornelio and Maria Olbes-Velasco, and the
land worth P10,297.50. 2 There is no dispute regarding their husbands of the last two: Hostilio Cornelio and Fernando Velasco. 8
valuation; what the parties cannot agree upon is whether these lands Her trust in Hostilio Cornelio was such that she made him custodian
are subject to collation. The private respondent vigorously argues of all the titles of her properties; and before she disposed of any of
that it is, conformably to Article 1061 of the Civil Code. Buhay, for her them, she unfailingly consulted her lawyer-nephew, Attorney
part, citing Article 1062, claims she has no obligation to collate Salvador Lorayes. It was Atty. Lorayes who prepared the legal
because the decedent prohibited such collation and the donation was documents and, more often than not, the witnesses to the
not officious. transactions were her nieces Elena Jaucian, Maria Lorayes-Cornelio,
The issue was resolved in favor of the petitioner by the trial court, * Maria Olbes-Velasco, or their husbands. Her niece, Elena Jaucian,
which held that the decedent, when she made the donation in favor was her life-long companion in her house.
of Buhay, expressly prohibited collation. Moreover, the donation did
not impair the legitimes of the two adopted daughters as it could be Don Mariano relied on Doña Catalina to carry out the terms of their
accommodated in, and in fact was imputed to, the free portion of compact, hence, nine (9) years after his death, as if in obedience to
Candelaria's estate. 3 his voice from the grave, and fully cognizant that she was also
advancing in years, Doña Catalina began transferring, by sale,
On appeal, the order of the trial court was reversed, the respondent donation or assignment, Don Mariano's, as well as her own,
court ** holding that the deed of donation contained no express properties to their respective nephews and nieces. She made the
prohibition to collate as an exception to Article 1062. Accordingly, it following sales and donations of properties which she had received
ordered collation and equally divided the net estate of the decedent, from her husband's estate, to his Locsin nephews and nieces:
including the fruits of the donated property, between Buhay and
Rosalinda. 4 Doña Catalina died on July 6, 1977. Four years before her death,
she had made a will on October 22, 1973 affirming and ratifying the
We agree with the respondent court that there is nothing in the above transfers she had made during her lifetime in favor of her husband's,
provisions expressly prohibiting the collation of the donated
properties. As the said court correctly observed, the phrase "sa 62

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Wills & Succession/ Atty Uribe namesake Mariano Locsin II. 13 On April 7, 1966, or 19 years
before she passed away, she also sold a 43-hectare land to another
and her own, relatives. After the reading of her will, all the relatives Locsin nephew, Jose R. Locsin. 14 The next year, or on March 22,
agreed that there was no need to submit it to the court for probate 1967, she sold a 5,000-sq.m. portion of Lot 2020 to Julian Locsin.
because the properties devised to them under the will had already 15
been conveyed to them by the deceased when she was still alive,
except some legacies which the executor of her will or estate, Among Doña Catalina's last transactions before she died in 1977
Attorney Salvador Lorayes, proceeded to distribute. were the sales of property which she made in favor of Aurea Locsin
and Mariano Locsin in 1975. 18
In 1989, or six (6) years after Doña Catalina's demise, some of her
Jaucian nephews and nieces who had already received their There is not the slightest suggestion in the record that Doña Catalina
legacies and hereditary shares from her estate, filed action in the was mentally incompetent when she made those dispositions.
Regional Trial Court of Legaspi City (Branch VIII, Civil Case No. Indeed, how can any such suggestion be made in light of the fact
7152) to recover the properties which she had conveyed to the that even as she was transferring properties to the Locsins, she was
Locsins during her lifetime, alleging that the conveyances were in also contemporaneously disposing of her other properties in favor of
officious, without consideration, and intended solely to circumvent the Jaucians? She sold to her nephew, Vicente Jaucian, on July 16,
the laws on succession. Those who were closest to Doña Catalina 1964 (21 years before her death) one-half (or 5,000 sq.m.) of Lot
did not join the action. 2020. Three years later, or on March 22, 1967, she sold another
5,000 sq.m. of the same lot to Jualian Locsin. 19
After the trial, judgment was rendered on July 8, 1985 in favor of the
plaintiffs (Jaucian), and against the Locsin defendants This Court finds no reason to disbelieve Attorney Lorayes' testimony
that before Don Mariano died, he and his wife (Doña Catalina), being
The petition has merit and should be granted. The trial court and the childless, had agreed that their respective properties should
eventually revert to their respective lineal relatives. As the trusted
Court of Appeals erred in declaring the private respondents, legal adviser of the spouses and a full-blood nephew of Doña
Catalina, he would not have spun a tale out of thin air that would also
nephews and nieces of Doña Catalina J. Vda. de Locsin, entitled to prejudice his own interest.

inherit the properties which she had already disposed of more than Their desistance persuasively demonstrates that Doña Catalina
acted as a completely free agent when she made the conveyances in
ten (10) years before her death. For those properties did not form favor of the petitioners. In fact, considering their closeness to Doña
Catalina it would have been well-nigh impossible for the petitioners to
part of her hereditary estate, i.e., "the property and transmissible employ "fraud, undue pressure, and subtle manipulations" on her to
make her sell or donate her properties to them. Doña Catalina's
rights and obligations existing at the time of (the decedent's) death niece, Elena Jaucian, daughter of her brother, Eduardo Jaucian,
lived with her in her house. Her nephew-in-law, Hostilio Cornelio,
and those which have accrued thereto since the opening of the was the custodian of the titles of her properties.

succession." 10 The rights to a person's succession are Apart from the foregoing considerations, the trial court and the Court
of Appeals erred in not dismissing this action for annulment and
transmitted from the moment of his death, and do not vest in his reconveyance on the ground of prescription. Commenced decades
after the transactions had been consummated, and six (6) years after
heirs until such time. 11 Property which Doña Catalina had Doña Catalina's death, it prescribed four (4) years after the subject
transactions were recorded in the Registry of Property, 28 whether
transferred or conveyed to other persons during her lifetime no considered an action based on fraud, or one to redress an injury to
the rights of the plaintiffs. The private respondents may not feign
longer formed part of her estate at the time of her death to which her ignorance of said transactions because the registration of the deeds
was constructive notice thereof to them and the whole world. 29
heirs may lay claim. Had she died intestate, only the property that WHEREFORE, the petition for review is granted.

remained in her estate at the time of her death devolved to her legal F. Freedom to dispose free portion

heirs; and even if those transfers were, one and all, treated as Art. 914. The testator may devise and bequeath the free portion
as he may deem fit.
donations, the right arising under certain circumstances to impugn
The article reiterates the principle embodied already in article 842.
and compel the reduction or revocation of a decedent's gifts inter thus, superfluous and at some point misleading. In many cases, the
testator cannot really dispose of part or whole of the free portion,
vivos does not inure to the respondents since neither they nor the because the legitimes of concurring compulsory heirs, like the
surviving spouse and illegitimate children when there are legitimate
donees are compulsory (or forced) heirs. 12 children or descendants, are taken from the free portion. Hence, he
can only dispose that which is the remainder of the free portion when
There is thus no basis for assuming an intention on the part of Doña this is partly consumed by the legitimes of concurring compulsory
Catalina, in transferring the properties she had received from her late heirs. The phrase, “as he may deem fit”, is therefore erroneous. The
husband to his nephews and nieces, an intent to circumvent the law testator does not absolute freedom over the free portion when
in violation of the private respondents' rights to her succession. Said concurring CH are present and only to those qualified to succeed.
respondents are not her compulsory heirs, and it is not pretended
that she had any such, hence there were no legitimes that could PRINCIPLES AFFECTING LEGITIME
conceivably be impaired by any transfer of her property during her
lifetime. All that the respondents had was an expectancy that in XII. PRETERITION
nowise restricted her freedom to dispose of even her entire estate
subject only to the limitation set forth in Art. 750, Civil Code which, Art. 854. The preterition or omission of one, some, or all of the
even if it were breached, the respondents may not invoke: compulsory heirs in the direct line, whether living at the time of

"Art 750. The donation may comprehend all the 63
present property of the donor, or part thereof,
provided he reserves, in, full ownership or in
usufruct, sufficient means for the support of
himself, and of all relatives who, at the time of
the acceptance of the donation, are by law
entitled to be supported by the donor. Without
such reservation, the donation shall be reduced
on petition of any person affected. (634a).

The lower court capitalized on the fact that Doña Catalina was
already 90 years old when she died on July 6, 1977. It insinuated
that because of her advanced years she may have been imposed
upon, or unduly influenced and morally pressured by her husband's
nephews and nieces (the petitioners) to transfer to them the
properties which she had inherited from Don Mariano's estate. The
records do not support that conjecture.

For as early as 1957, or twenty-eight (28) years before her death,
Doña Catalina had already begun transferring to her Locsin nephews
and nieces the properties which she received from Don Mariano. She
sold a 962-sq.m. lot on January 26, 1957 to his nephew and

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Wills & Succession/ Atty Uribe disinheritance has not been made, without prejudice to lawful
dispositions made by the testator in favor of others.
the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies Aznar vs. Duncan
shall be valid insofar as they are not inofficious.
Edward E. Christensen, a citizen of California with domicile in the
If the omitted compulsory heirs should die before the testator, Philippines, died leaving a will executed on March 5, 1951. The will
the institution shall be effectual, without prejudice to the right of was admitted to probate by the Court of First Instance of Davao in its
representation. (814a) decision of February 28, 1954. In that same decision the court
declared that Maria Helen Christensen Garcia (hereinafter referred to
Art. 855. The share of a child or descendant omitted in a will as Helen Garcia) was a natural child of the deceased. The
must first be taken from the part of the estate not disposed of declaration was appealed to this Court, and was affirmed in its
by the will, if any; if that is not sufficient, so much as may be decision of February 14, 1958 (G.R. No. L-11484)
necessary must be taken proportionally from the shares of the
other compulsory heirs. (1080a) In another incident relative to the partition of the deceased's estate,
the trial court approved the project submitted by the executor in
The article does not necessarily refer to preterition. It refers to a child accordance with the provisions of the will, which said court found to
or descendant omitted in a will. be valid under the law of California. Helen Garcia appealed form the
order of approval, and this Court, on January 31, 1963, reversed the
The share of the omitted child is to be determined by other provisions same on the ground that the validity of the provisions of the will
of law; once that is determined this article provides the manner in should be governed by Philippine law, and returned the case to the
which that share shall be satisfied. lower court with instructions that the partition be made as provided
by said law (G.R. No. L-16749)
This article suffers serious defects. The term cjold pr descendant
should be construed as compulsory heirs, in much the same way that On October 29, 1964, the Court of First Instance of Davao issued an
the first paragraph of article 909 has been construed by order approving the project of partition submitted by the executor,
commentators to refer to compulsory heirs. dated June 30, 1964, wherein the properties of the estate were
divided equally between Maria Lucy Christensen Duncan (named in
Theree is patent fundamental mistake in the last sentence of the the will as Maria Lucy Christensen Daney, and hereinafter referred to
article because it creates a confusion and does not express the true as merely Lucy Duncan), whom the testator had expressly
intent of the law. It should have been reworded in this wise: recognized in his will as his daughter (natural) and Helen Garcia,
who had been judicially declared as such after his death. The said
“the share of the compulsory heir omitted in a will must first be taken order was based on the proposition that since Helen Garcia had
from the part of the estate not diposed of by will, if any; it that is not been preterited in the will the institution of Lucy Duncan as heir was
sufficient, so much as may be necessary must be taken annulled, and hence the properties passed to both of them as if the
PROPORTIONALLY FROM THE SHARES OF THE OTHER HEIRS deceased had died intestate, saving only the legacies left in favor of
GIVEN TO THEM BY WILL” certain other persons, which legacies have been duly approved by
the lower court and distributed to the legatees.
Art. 906. Any compulsory heir to whom the testator has left by
any title less than the legitime belonging to him may demand The case is once more before us on appeal, this time by Lucy
that the same be fully satisfied. (815) Duncan, on the sole question of whether the estate, after deducting
the legacies, should pertain to her and to Helen Garcia in equal
If there is no testamentary disposition in his favor, the heir cannot shares, or whether the inheritance of Lucy Duncan as instituted heir
ask for completion of his legitime, because there is nothing to should be merely reduced to the extent necessary to cover the
complete; instead there should be a case preterition or total legitimate of Helen Garcia, equivalent to 1/4 of the entire estate
omission, and in such case the forced heir in the direct line is entitled
to ask, not merely for the completion of his legitime. But for the The trial court ruled, and appellee now maintains, that there has
annulment of the institution of heir. been preterition of Helen Garcia, a compulsory heir in the direct line,
resulting in the annulment of the institution of heir pursuant to Article
Art. 918. Disinheritance without a specification of the cause, or 854 of the Civil Code, which provides:
for a cause the truth of which, if contradicted, is not proved, or
which is not one of those set forth in this Code, shall annul the On the other hand, appellant contends that this is not a case of
institution of heirs insofar as it may prejudice the person preterition, but is governed by Article 906 of the Civil Code, which
disinherited; but the devises and legacies and other says: "Any compulsory heir to whom the testator has left by any title
testamentary dispositions shall be valid to such extent as will less the legitime belonging to him may demand that the same be fully
not impair the legitime. (851a) satisfied," Appellant also suggests that considering the provisions of
the will whereby the testator expressly denied his relationship with
This article pertain to effects of a disinheritance which does not have Helen Garcia, but left to her a legacy nevertheless, although less
one or more of the essential requisites for its validity. It likewise than the amount of her legitime, she was in effect defectively
applies to cases of reconciliation after a disinheritance has been disinherited within the meaning of Article 918, which reads:
made.
Thus, according to appellant, under both Articles 906 and 918, Helen
The ineffective disinheritance does not affect the disposition of the Garcia is entitled only to her legitime, and not to a share of the estate
testator with respect to the free portion. The reason is the equal that of Lucy Duncan as if the succession were intestate.
disinheritance in this case refers only only to the legitime of the heir,
and therefore, it is only this portion that is affected by the nullity or Article 854 is a reproduction of Article 814 of the Spanish Civil Code;
ineffectiveness of such disinheritance. and Article 906 of Article 815. On the difference between preterition
of a compulsory heir and the right to ask for completion of his
Where the disinheritance is ineffective in this case, the compulsory legitime
heir must be given all that he is entitiled to receive as if the
Manresa defines preterition as the omission of the heir in the will,
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son, etc., by not instituting him as heir without disinheriting him
expressly, nor assigning to him some part of the properties.

64

Wills & Succession/ Atty Uribe Court of First Instance of Rizal a holographic will allegedly executed
by Rosario Nuguid on November 17, 1951, some 11 years before her
The question may be posed: In order that the right of a forced heir demise. Petitioner prayed that said will be admitted to probate and
may be limited only to the completion of his legitime (instead of the that letters of administration with the will annexed be issued to her.
annulment of the institution of heirs) is it necessary that what has
been left to him in the will "by any title," as by legacy, be granted to On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
him in his capacity as heir, that is, a titulo de heredero? In other concededly the legitimate father and mother of the deceased Rosario
words, should he be recognized or referred to in the will as heir? This Nuguid, entered their opposition to the probate of her will. Ground
question is pertinent because in the will of the deceased Edward E. therefor, inter alia, is that by the institution of petitioner Remedios
Christensen Helen Garcia is not mentioned as an heir — indeed her Nuguid as universal heir of the deceased, oppositors — who are
status as such is denied — but is given a legacy of P3,600.00 compulsory heirs of the deceased in the direct ascending line —
were illegally preterited and that in consequence the institution is
Manresa cites particularly three decisions of the Supreme Court of void.
Spain dated January 16, 1895, May 25, 1917, and April 23, 1932,
respectively. In each one of those cases the testator left to one who The court's order of November 8, 1963, held that "the will in question
was a forced heir a legacy worth less than the legitime, but without is a complete nullity and will perforce create intestacy of the estate of
referring to the legatee as an heir or even as a relative, and willed the deceased Rosario Nuguid" and dismissed the petition without
the rest of the estate to other persons. It was held that Article 815 costs.
applied, and the heir could not ask that the institution of heirs be
annulled entirely, but only that the legitimate be completed. (6 A peculiar situation is here thrust upon us. The parties shunted aside
Manresa, pp. 438, 441.) the question of whether or not the will should he allowed probate. For
them, the meat of the case is the intrinsic validity of the will.
The foregoing solution is indeed more in consonance with the Normally, this comes only after the court has declared that the will
expressed wished of the testator in the present case as may be been duly authenticated. 2 But petitioner and oppositors, in the
gathered very clearly from the provisions of his will. He refused to court below and here on appeal, travelled on the issue of law, to wit:
acknowledge Helen Garcia as his natural daughter, and limited her Is the will intrinsically a nullity?
share to a legacy of P3,600.00. The fact that she was subsequently
declared judicially to possess such status is no reason to assume We pause to reflect. If the case were to be remanded for probate of
that had the judicial declaration come during his lifetime his the will, nothing will be gained. On the contrary, this litigation will be
subjective attitude towards her would have undergone any change protracted. And for aught that appears in the record, in the event of
and that he would have willed his estate equally to her and to Lucy probate or if the court rejects the will, probability exists that the case
Duncan, who alone was expressly recognized by him. will come once again before us on the same issue of the intrinsic
validity or nullity of the will. Result: waste of time, effort, expense,
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is plus added anxiety. These are the practical considerations that
cited by appellees in support of their theory of preterition. That induce us to a belief that we might as well meet head-on the issue of
decision is not here applicable, because it referred to a will where the nullity of the provisions of the will in question. 3 After all, there
"the testator left all his property by universal title to the children by exists a justiciable controversy crying for solution.
his second marriage, and (that) without expressly disinheriting the
children by h is first marriage, he left nothing to them or, at least, Petitioner's sole assignment of error challenges the correctness of
some of them." In the case at bar the testator did not entirely omit the conclusion below that the will is a complete nullity. The statute
oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00 we are called upon to apply is Article 854 of the Civil Code. A
comprehensive understanding of the term preterition employed in the
The estate of the deceased Christensen upon his death consisted of law becomes a necessity.
399 shares of stocks in the Christensen Plantation Company and a
certain amount in cash. One-fourth (1/4) of said estate descended to And now, back to the facts and the law. The deceased Rosario
Helen Garcia as her legitime. Since she became the owner of her Nuguid left no descendants, legitimate or illegitimate. But she left
share as of the moment of the death of the decedent (Arts. 774, 777, forced heirs in the direct ascending line — her parents, now
Civil Code), she is entitled to a corresponding portion of all the fruits oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
or increments thereof subsequently accruing. These include the completely omits both of them: They thus received nothing by the
stock dividends on the corporate holdings. The contention of Lucy testament; tacitly, they were deprived of their legitime; neither were
Duncan that all such dividends pertain to her according to the terms they expressly disinherited. This is a clear case of preterition. Such
of the will cannot be sustained, for it would in effect impair the right of preterition in the words of Manresa "anulará siempre la institución de
ownership of Helen Garcia with respect to her legitime. heredero, dando carácter absoluto a este ordenamiento," referring to
the mandate of Article 814, now 854 of the Civil Code. 9 The one-
One point deserves to be here mentioned. although no reference to it sentence will here institutes petitioner as the sole, universal heir —
has been made in the brief for oppositor-appellant. It is the institution nothing more. No specific legacies or bequests are therein provided
of substitute heirs to the estate bequeathed to Lucy Duncan in the for. It is in this posture that we say that the nullity is complete.
event she should die without living issue. This substitution results in Perforce, Rosario Nuguid died intestate.
effect from the fact that under paragraph 12 of the will she is entitled
only to the income from said estate, unless prior to her decease she Really, as we analyze the word annul employed in the statute, there
should have living issue, in which event she would inherit in full is no escaping the conclusion that the universal institution of
ownership; otherwise the property will go to the other relatives of the petitioner to the entire inheritance results in totally abrogating the will.
testator named in the will. Without deciding this point, since it is not Because, the nullification of such institution of universal heir —
one of the issues raised before us, we might call attention to the without any other testamentary disposition in the will — amounts to a
limitations imposed by law upon this kind of substitution, particularly declaration that nothing at all was written. Carefully worded and in
that which says that it can never burden the legitime (Art. 864 Civil clear terms, Article 854 offers no leeway for inferential interpretation.
Code), which means that the legitime must descend to the heir Giving it an expansive meaning will tear up by the roots the fabric of
concerned in fee simple. the statute. On this point, Sánchez Román cites the "Memoria annual
del Tribunal Supremo, correspondiente a 1908," which in our opinion
Nuguid vs. Nuguid expresses the rule of interpretation, viz:
As aforesaid, there is no other provision in the will before us except
Rosario Nuguid, a resident of Quezon City, died on December 30, the institution of petitioner as universal heir. That institution, by itself,
1962, single, without descendants, legitimate or illegitimate. is null and void. And, intestate succession ensues.
Surviving her were her legitimate parents, Felix Nuguid and Paz
Salonga Nuguid, and 6 brothers and sisters namely: Alfredo, 65
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid. On May 18, 1963, petitioner Remedios Nuguid filed in the

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Wills & Succession/ Atty Uribe

Preterition "consists in the omission in the testator's will of the forced solely provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The entire will is null.
heirs or anyone of them, either because they are not mentioned
Reyes vs. Barretodatu
therein, or, though mentioned, they are neither instituted as heirs nor
When Bibiano Barretto died on February 18, 1936, in the
are expressly disinherited." 16 Disinheritance, in turn, "is a City of Manila, he left his share of these properties in a will
to Salud Barretto, mother of plaintiff's wards, and Lucia
testamentary disposition depriving any compulsory heir of his share Milagros Barretto and a small portion as legacies to his two
sisters Rosa Barretto and Felisa Barretto and his nephew
in the legitime for a cause authorized by law." 17 In Manresa's own and nieces. The usufruct of the fishpond situated in barrio
San Roque, Hagonoy, Bulacan, abovementioned,
words: "La privación expresa de la legitima constituye le however, was reserved for his widow, Maria Gerardo. In
the meantime, Maria Gerardo was appointed
desheredación. La privación tácita de la misma se denomina administratrix. By virtue thereof, she prepared a project of
partition, which was signed by her in her own behalf and
preterición. 18 Sánchez Román emphasizes the distinction by as guardian of the minor Milagros Barretto. Said project of
Partition was approved by the Court of First Instance of
stating that disinheritance "es siempre voluntaria"; preterition, upon Manila on November 22, 1939. The distribution of the
estate and the delivery of the shares of the heirs followed
the other hand, is presumed to be "involuntaria." 19 Express as forthwith. As a consequence, Salud Barretto took
immediate possession of her share and secured the
disinheritance should be, the same must be supported by a legal cancellation of the original certificates of title and the
issuance of new titles in her own name.
cause specified in the will itself. 20
Having thus lost this fight for a share in the estate of Maria
The will here does not explicitly disinherit the testatrix's parents, the Gerardo, as a legitimate heir of Maria Gerardo, plaintiff
now falls back upon the remnant of the estate of the
forced heirs. It simply omits their names altogether. Said will rather deceased Bibiano Barretto, which was given in usufruct to
his widow Maria Gerardo. Hence, this action for the
than be labeled ineffective disinheritance is clearly one in which the recovery of one-half portion thereof.

said forced heirs suffer from preterition. This action afforded the defendant an opportunity to set up
her right of ownership, not only of the fishpond under
On top of this the fact that the effects flowing from preterition are litigation, but of all the other properties willed and delivered
totally different from those of disinheritance. Preterition under Article to Salud Barretto, for being a spurious heir, and not
854 of the Civil Code, we repeat, "shall annul the institution of heir." entitled to any share in the estate of Bibiano Barretto,
This annulment is in toto, unless in the will there are, in addition, thereby directly attacking the validity, not only of the
testamentary dispositions in the form of devises or legacies. In project of partition but of the decision of the court based
ineffective disinheritance under Article 918 of the same Code, such thereon as well.
disinheritance shall also "annul the institution of heirs," but only
"insofar as it may prejudice the person disinherited," which last The defendant contends that the Project of Partition from
phrase was omitted in the case of preterition. 21 Better stated yet, which Salud acquired the fishpond in question is void ab
in disinheritance the nullity is limited to that portion of the estate of initio and Salud Barretto did not acquire any valid title
which the disinherited heirs have been illegally deprived. Manresa's thereto, and that the court did not acquire any jurisdiction
expressive language, in commenting on the rights of the preterited of the person of the defendant, who was then a minor.' "
heirs in the case of preterition on the one hand and legal Finding for the defendant (now appellee), Milagros Barretto, the
disinheritance on the other, runs thus: "Preteridos, adquieren el lower court declared the project of partition submitted in the
derecho a todo; deshereda dos, solo les corresponde un tercio o dos proceedings for the settlement of the estate of Bibiano Barretto (Civil
tercios, 22 según el caso." 23 Case No. 49629 of the Court of First Instance of Manila) to be null
and void ab initio (not merely voidable) because the distributee,
This is best answered by a reference to the opinion of Mr. Justice Salud Barretto, predecessor of plaintiffs (now appellants), was not a
Moran in the Neri case heretofore cited, viz: daughter of the spouses Bibiano Barretto and Maria Gerardo. The
nullity of the project of partition was decreed on the basis of Article
"But the theory is advanced that the bequest made by 1081 of the Civil Code of 1889 (then in force) providing as follows:
universal title in favor of the children by the second
marriage should be treated as legado and mejora and, "A partition in which a person was believed to be an heir,
accordingly, it must not be entirely annulled but merely without being so, has been included, shall be null and
reduced. This theory, if adopted, will result in a complete void."
abrogation of articles 814 and 851 of the Civil Code. If
every case of institution of heirs may be made to fall into Plaintiffs-appellants correctly point out that Article 1081 of the old
the concept of legacies and betterments reducing the Civil Code has been misapplied to the present case by the court
bequest accordingly, then the provisions of articles 814 below. The reason is obvious: Salud Barretto admittedly had been
and 851 regarding total or partial nullity of the institution, instituted heir in the late Bibiano Barretto's last will and testament
would be absolutely meaningless and will]l never have together with defendant Milagros; hence, the partition had between
application at all. And the remaining provisions contained them could not be one such had with a party who was believed to be
in said articles concerning the reduction of inofficious an heir without really being one, and was not null and void under said
legacies or betterments would be a surplusage because article. The legal precept (Article 1081) does not speak of children, or
they would be absorbed by article 817. Thus, instead of descendants, but of heirs (without distinction between forced,
construing, we would be destroying integral provisions of voluntary or intestate ones), and the fact that Salud happened not to
the Civil Code. be a daughter of the testator does not preclude her being one of the
heirs expressly named in his testament; for Bibiano Barretto was at
The destructive effect of the theory thus advanced is due liberty to assign the free portion of his estate to whomsoever he
mainly to a failure to distinguish institution of heirs from chose. While the share (1/2) assigned to Salud impinged on the
legacies and betterments, and a general from a special
provision. With reference to Article 814, which is the only 66
provision material to the disposition of this case, it must be
observed that the institution of heirs is therein dealt with a
thing separate and distinct from legacies or betterment.
And they are separate and distinct not only because they
are distinctly and separately treated in said article but
because they are in themselves different. Institution of
heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property
bequeathed by a particular or special title. . . But again an
institution of heirs cannot be taken as a legacy," 25

The disputed order, we observe, declares the will in question "a
complete nullity". Article 854 of the Civil Code in turn merely nullifies
"the institution of heir." Considering, however, that the will before us

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Wills & Succession/ Atty Uribe Defendant-appellee further pleads that as her mother and guardian
(Maria Gerardo) could not have ignored that the distributee Salud
legitime of Milagros, Salud did not for that reason cease to be a was not her child, the act of said widow in agreeing to the oft-cited
testamentary heir of Bibiano Barretto. partition and distribution was a fraud on appellee's rights and entitles
her to relief. In the first place, there is no evidence that when the
Nor does the fact that Milagros was allotted in her father's will a estate of Bibiano Barretto was judicially settled and distributed
share smaller than her legitime invalidate the institution of Salud as appellants' predecessor, Salud Lim Boco Barretto, knew that she
heir, since there was here no preterition, or total omission, of a was not Bibiano's child; so that if fraud was committed, it was the
forced heir. For this reason, Neri vs. Akutin, 72 Phil. 322, invoked by widow, Maria Gerardo, who was solely responsible, and neither
appellee, is not at all applicable, that case involving an instance of Salud nor her minor children, appellants herein, can be held liable
preterition or omission of children of the testator's former marriage. therefor. In the second place, granting that there was such fraud,
relief therefrom can only be obtained within 4 years from its
It is thus apparent that where a court has validly issued a decree of discovery, and the record shows that this period had elapsed long
distribution of the estate, and the same has become final, the validity ago.
or invalidity of the project of partition becomes irrelevant.
Because at the time of the distribution Milagros Barretto was only 16
It is, however, argued for the appellee that since the court's years old (Exhibit 24), she became of age five years later, in 1944.
distribution of the estate of the late Bibiano Barretto was predicated On that year, her cause of action accrued to contest on the ground of
on the project of partition executed by Salud Barretto and the widow, fraud the court decree distributing her father's estate and the four-
Maria Gerardo (who signed for herself and as guardian of the minor year period of limitation started to run, to expire in 1948 (Section 43,
Milagros Barretto), and since no evidence was taken of the filiation of Act 190). In fact, conceding that Milagros only became aware of the
the heirs, nor were any findings of fact or law made, the decree of true facts in 1946 (Appellee's Brief, p. 27), her action still became
distribution can have no greater validity than that of the basic extinct in 1950. Clearly, therefore, the action was already barred
partition, and must stand or fall with it, being in the nature of a when in August 31, 1956 she filed her counterclaim in this case
judgment by consent, based on a compromise. Saminiada vs. Mata, contesting the decree of distribution of Bibiano Barretto's estate.
92 Phil. 426, is invoked in support of the proposition. That case is
authority for the proposition that a judgment by compromise may be In resume, we hold (1) that the partition had between Salud and
set aside on the ground of mistake or fraud, upon petition filed in due Milagros Barretto in the proceedings for the settlement of the estate
time, where petition for "relief was filed before the compromise of Bibiano Barretto, duly approved by the Court of First Instance of
agreement, a proceeding, was consummated" (cas. cit. at p. 436). In Manila in 1939, in its Civil Case No. 49629, is not void for being
the case before us, however, the agreement of partition was not only contrary to either articles 1081 or 1814 of the Civil Code of 1889; (2)
ratified by the court's decree of distribution, but actually that Milagros Barretto's action to contest said partition and decree of
consummated, so much so that the titles in the name of the distribution is barred by the statute of limitations; and (3) that her
deceased were cancelled, and new certificates issued in favor of the claim that plaintiff-appellant guardian is a possessor in bad faith and
heirs, long before the decree was attacked. Hence, Saminiada vs. should account for the fruits received from the properties inherited by
Mata does not apply. Salud Barretto (nee Lim Boco) is legally untenable. It follows that the
plaintiffs' action for partition of the fishpond described in the
That defendant Milagros Barretto was a minor at the time the probate complaint should have been given due course.
court distributed the estate of her father in 1939 does not imply that
the said court was without jurisdiction to enter the decree of Wherefore, the decision of the Court of First Instance of Bulacan now
distribution. under appeal is reversed and set aside in so far as it orders plaintiff-
appellant to reconvey to appellee Milagros Barretto Datu the
The only instance that we can think of in which a party properties enumerated in said decision, and the same is affirmed in
interested in a probate proceedings may have a final so far as it denies any right of said appellee to accounting. Let the
liquidation set aside is when he is left out by reason of records be returned to the court of origin, with instructions to proceed
circumstances beyond his control or through mistake or with the action for partition of the fishpond (Lot No. 4, Plan Psu-
inadvertence not imputable to negligence. Even then, the 4709), covered by TCT No. T-13734 of the Office of the Register of
better practice to secure relief is reopening of the same Deeds of Bulacan, and for the accounting of the fruits thereof, as
case by proper motion within the reglementary period, prayed for in the complaint. No costs.
instead of an independent action the effect of which, if
successful, would be, as in the instant case, for another 37. Esculin vs. Esculin
court or judge to throw out a decision or order already final
and executed and reshuffle properties long ago distributed On the 19th of January, 1899, Emilio Antonio Escuin de los Santos
and disposed of." executed a will before a notary public of Sevilla, Spain, stating
therein that he was a native of Cavite, the son of Francisco Escuin
". . . It is argued that Lucia Milagros Barretto was a minor and Eugenia de los Santos, the latter being deceased; that he was
when she signed the partition, and that Maria Gerardo was married about six months previously to Maria Teresa Ponce de Leon,
not her judicially appointed guardian. The claim is not true. and that he had no lawful descendants; the testator, however, stated
Maria Gerardo signed as guardian of the minor. (Secs. 3 in clause three of his will, that in case he had a duly registered
and 5, Rule 97, Rules of Court.) The mere statement in the successor, his child would be his sole and universal heir; but that if,
project of partition that the guardianship proceedings of the as would probably be the case, there should be no such heir, then in
minor Lucia Milagros Barretto are pending in the court, clause four he named his said father Francisco Escuin, and his wife
does not mean that the guardian had not yet been Maria Teresa Ponce de Leon his universal heirs, they to divide the
appointed; it meant that the guardianship proceedings, had estate in equal shares between them.
not yet been terminated and as a guardianship
proceedings begin with the appointment of a guardian, The testator died on the 20th of January, 1899, as certified to by the
Maria Gerardo must have been already appointed when municipal court of Magdalena, Sevilla, on the 20th of March, 1900.
she signed the project of partition. There is, therefore, no On the 30th of September, 1905, the court below found that Emilio
irregularity or defect or error in the project of partition, Escuin y Batac was the recognized natural child of the late Emilio
apparent on the record of the testate proceedings, which Escuin de los Santos, had by Julia Batac; that the testator was also
shows that Maria Gerardo had no power or authority to the natural son of the defendant Francisco Escuin and Eugenia de
sign the project of partition as guardian of the minor Lucia los Santos, and was recognized by his father; and that the plaintiff
Milagros Barretto, and, consequently, no ground for the minor, Emilio Escuin y Batac, is one of the heirs of the late testator.
contention that the order approving the project of partition
is absolutely null and void and may be attacked collaterally 67
in these proceedings."

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Wills & Succession/ Atty Uribe by force of law, in so far as the legal portion of the said minor was
thereby impaired. Legacies and betterments shall be valid, in so far
Upon the will having been admitted to probate, commissioners were as they are not illegal, for the reason that a testator can not deprive
appointed to consider claims against the estate, and, according to a the heirs of their legal portions, except in the cases expressly
report presented to the Court of First Instance on the 20th of June, indicated by law. (Arts. 763, 813, 814, Civil Code.)
1907, one claim was allowed amounting to 3,696.50 pesetas.
As has been seen, the testator wished to dispose of his property in
It appears in the proposed partition of the 3d of September, 1906, his will, designating as heirs his natural father, Francisco Escuin, and
his wife, Maria Teresa Ponce de Leon, altogether ignoring his
that, according to the opinion of the administrator by whom it was recognized natural child who is his general heir. In view thereof, and
for the reason that he exceeded his rights, the said designation of
signed and the result of the proceedings, the property left by the heirs became void in so far as it impaired the right of his general heir
and deprived him of his legal portion; the will, however, is valid with
testator, in accordance with the accounts passed upon by the court, respect to the two-thirds of the property which the testator could
freely dispose of. (Arts. 763, 764, 806, 813, 842, Civil Code.)
amounted to P8,268.02
Notwithstanding the fact that the designation of heirs is annulled and
Deducting this amount from the funds that the law recognizes the title of the minor, Escuin y Batac, to one-
of the estate, there remains a balance of 5,014.81 third of the property of his natural father, as his lawful and general
heir, it is not proper to assert that the late Emilio Escuin de los
That the said credit of P1,321.40, equivalent to 3,696.50 pesetas, Santos died intestate in order to establish the conclusion that his said
allowed by the commissioners, is the only claim presented within the natural recognized child is entitled to succeed to the entire estate
legal term against the estate; that Francisco Escuin, the father of the under the provisions of article 939 of the Civil Code, inasmuch as in
testator, his wife or widow, Teresa Ponce de Leon, and his natural accordance with the law a citizen may die partly testate and partly
child, the minor Emilio Escuin y Batac, represented by his mother intestate (art. 764, Civil Code). It is clear and unquestionable that it
and guardian Julia Batac, are entitled to the succession; that, by was the wish of the testator to favor his natural father and his wife
setting aside one-third of the estate in favor of the natural son with certain portions of his property which, under the law, he had a
recognized in accordance with article 842 of the Civil Code, there right to dispose of by will, as he has done, provided the legal portion
only remains the question as to how the remaining two-thirds of the of his general heir was not thereby impaired, the two former persons
inheritance shall be bestowed, taking into account the directions of being considered as legatees under the will.
the testator in his will; that the same does not disclose that he had
left any child by his wife; that the latter, as the widow of the testator, The above-mentioned will is neither null, void, nor illegal in so far as
besides being a designated heir entitled to one-half of the hereditary the testator leaves two-thirds of his property to his father and wife;
funds, is entitled to the usufruct of the portion fixed by the law, and testamentary provisions impairing the legal portion of a general heir
that the funds to be apportioned are composed wholly of cash or shall be reduced in so far as they are illegal or excessive. (Art. 817,
ready money. Civil Code.) The partition of the property of the said testator shall be
proceeded with in accordance with the foregoing legal bases.
On the 30th of September, 1905, the court below found that Emilio By virtue of the foregoing considerations it is our opinion that the
Escuin y Batac was the recognized natural child of the late Emilio orders of the court below, of October 30, 1906, and August 24, 1907,
Escuin de los Santos, had by Julia Batac; that the testator was also should be reversed, and upon receipt of a certified copy of this
the natural son of the defendant Francisco Escuin and Eugenia de decision the court below shall take action in accordance with the law
los Santos, and was recognized by his father; and that the plaintiff and the terms herein contained with respect to the claims and
minor, Emilio Escuin y Batac, is one of the heirs of the late testator. appeals from the resolutions of the commissioners pending judicial
Until all the known creditors and the legatees have been paid, it shall decision. So ordered.
be understood that the estate is under administration, says article
1026 of the Civil Code, and in conformity with this legal provision the Balanay vs. Martinez
supreme tribunal has established the doctrine that "only after
payment of all the obligations of the estate can the net amount Felix Balanay, Jr. appealed by certiorari from the order of the Court
divisible among the heirs be known." (Decision of March 2, 1896.) of First Instance of Davao dated February 28, 1974, declaring illegal
and void the will of his mother, Leodegaria Julian, converting the
Section 753 of the Code of Civil Procedure confirms the provision of testate proceeding into an intestate proceeding and ordering the
the Civil Code and the legal doctrine mentioned above, inasmuch as issuance of the corresponding notice to creditors (Special Case No.
it provides that, after payment of the debts, funeral charges, and 1808). The antecedents of the appeal are as follows:
expenses of administration, and the allowances for the expense of Felix J. Balanay, Jr. filed in the lower court a petition dated February
maintenance of the family of the deceased, the court shall assign the 27, 1973 for the probate of his mother’s notarial will dated September
residue of the estate to the persons entitled to the same, naming the 5, 1970 which is written in English. In that will Leodegaria Julian
persons and proportions or parts to which each is entitled, etc. declared (a) that she was the owner of the "southern half" of nine
So that by reason of the claims made by the creditor of the estate of conjugal lots (par. II); (b) that she was the absolute owner of two
Emilio Escuin de los Santos and by her natural son, duly recognized parcels of land which she inherited from her father (par. III), and (c)
by his father, an ordinary action should have been brought before the that it was her desire that her properties should not be divided
Court of First Instance, from whose judgment appeal may be taken to among her heirs during her husband’s lifetime and that their legitimes
this court by means of the corresponding bill of exceptions under the should be satisfied out of the fruits of her properties (Par. IV).
provisions of section 777 of the Code of Civil Procedure; and while
the ultimate decision in the matter of the said claims against the Then, in paragraph V of the will she stated that after her husband’s
resolution of the commissioners has not become final, and until all death (he was eighty-two years old in 1973) her paraphernal lands
the obligations of the estate have been paid, there can really be no and all the conjugal lands (which she described as "my properties")
inheritance, nor can it be distributed among the persons interested should be divided and distributed in the manner set forth in that part
therein according to the will of the testator, or under the provisions of of her will. She devised and partitioned the conjugal lands as if they
the law. were all owned by her. She disposed of in the will her husband’s
one-half share of the conjugal assets. *
With respect to the questions which form the basis of this litigation
and refer to the second assignment of errors, it should be noted that Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the
the late testator did not leave any legitimate descendants or will on the grounds of lack of testamentary capacity, undue influence,
ascendants, but did leave a recognized natural child, the appellant preterition of the husband and alleged improper partition of the
minor, and a widow; that the said minor, Emilio Escuin y Batac, is the conjugal estate. The oppositors claimed that Felix Balanay, Jr.
general heir of his natural father, the said testator, who recognized
him while living (art. 807, Civil Code), and in the present case is 68
entitled to one-third of his estate, which amount constitutes the legal
portion of a natural child (art. 842 of the said code); and for the
reason that the minor was ignored by his natural father in his will, the
designation of heirs made therein was, as a matter of fact annulled

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Wills & Succession/ Atty Uribe "A parent who, in the interest of his or her family,
desires to keep any agricultural, industrial, or
should collate certain properties which he had received from the manufacturing enterprise intact, may avail
testatrix. himself of the right granted him in this article, by
ordering that the legitime of the other children to
Felix Balanay, Jr., in his reply to the opposition, attached thereto an whom the property is not assigned, be paid in
affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he cash. (1056a)"
withdrew his opposition to the probate of the will and affirmed that he
was interested in its probate. On the same date Felix Balanay, Sr. The testatrix in her will made a partition of the entire conjugal estate
signed an instrument captioned "Conformation (sic) of Division and among her six children (her husband had renounced his hereditary
Renunciation of Hereditary Rights" wherein he manifested that out of rights and his one-half conjugal share). She did not assign the whole
respect for his wife’s will he "waived and renounced" his hereditary estate to one or more children as envisaged in article 1080. Hence,
rights in her estate in favor of their six children. In that same she had no right to require that the legitimes be paid in cash. On the
instrument he confirmed the agreement, which he and his wife had other hand, her estate may remain undivided only for a period of
perfected before her death, that their conjugal properties would be twenty years. So, the provision that the estate should not be divided
partitioned in the manner indicated in her will. during her husband’s lifetime would at most be effective only for
Montaña in his motion assailed the provision of the will which twenty years from the date of her death unless there are compelling
partitioned the conjugal assets or allegedly effected a compromise of reasons for terminating the coownership (Art. 1083, Civil Code).
future legitimes. He prayed that the probate of the will be withdrawn Subject to the foregoing observations and the rules on collation, the
and that the proceeding be converted into an intestate proceeding. In will is intrinsically valid and the partition therein may be given effect if
another motion of the same date he asked that the corresponding it does not prejudice the creditors and impair the legitimes. The
notice to creditors be issued. distribution and partition would become effective upon the death of
Felix Balanay, Sr. In the meantime, the net income should be
The basic issue is whether the probate court erred in passing upon equitably divided among the children and the surviving spouse.
the intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void. It should be stressed that by reason of the surviving husband’s
conformity to his wife’s will and his renunciation of his hereditary
We are of the opinion that in view of certain unusual provisions of the rights, his one-half conjugal share be a part of his deceased wife’s
will, which are of dubious legality, and because of the motion to estate. His conformity had the effect of validating the partition made
withdraw the petition for probate (which the lower court assumed to in paragraph V of the will without prejudice, of course, to the rights of
have been filed with the petitioner’s authorization), the trial court the creditors and the legitimes of the compulsory heirs.
acted correctly in passing upon the will’s intrinsic validity even before Article 793 of the Civil Code provides that "property acquired after
its formal validity had been established. The probate of a will might the making of a will shall only pass thereby, as if the testator had
become an idle ceremony if on its face it appears to be intrinsically possessed it at the time of making the will, should it expressly appear
void. Where practical considerations demand that the intrinsic validity by the will that such was his intention". Under article 930 of the Civil
of the will be passed upon, even before it is probated, the court Code "the legacy or devise of a thing belonging to another person is
should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA void, if the testator erroneously believed that the thing pertained to
449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, him. But if the thing bequeathed, though not belonging to the testator
1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 when he made the will, afterwards becomes his, by whatever title,
SCRA 693). the disposition shall take effect."

But the probate court erred in declaring in its order of February 28, In the instant case there is no doubt that the testatrix and her
husband intended to partition the conjugal estate in the manner set
1974 that the will was void and in converting the testate proceeding forth in paragraph V of her will. It is true that she could dispose of by
will only her half of the conjugal estate (Art. 170, Civil Code) but
into an intestate proceeding notwithstanding the fact that in its order since the husband, after the dissolution of the conjugal partnership,
of June 18, 1973 it gave effect to the surviving husband’s conformity had assented to her testamentary partition of the conjugal estate,
to the will and to his renunciation of his hereditary rights which such partition has become valid, assuming that the will may be
probated.
presumably included his one-half share of the conjugal estate.
The instant case is different from the Nuguid case, supra, where the
The rule is that "the invalidity of one of several dispositions contained testatrix instituted as heir her sister and preterited her parents. Her
in a will does not result in the invalidity of the other dispositions, will was intrinsically void because it preterited her compulsory heirs
unless it is to he presumed that the testator would not have made in the direct line. Article 854 of the Civil Code provides that "the
such other dispositions if the first invalid disposition had not been preterition or omission of one, some, or all of the compulsory heirs in
made" (Art. 792, Civil Code). "Where some of the provisions of a will the direct line, whether living at the time of the execution of the will or
are valid and others invalid, the valid parts will be upheld if they can born after the death of the testator, shall annul the institution of heir;
be separated from the invalid without defeating the intention of the but the devises and legacies shall be valid insofar as they are not
testator or interfering with the general testamentary scheme, or doing inofficious." Since the preterition of the parents annulled the
injustice to the beneficiaries" (95 C.J.S. 873). institution of the sister of the testatrix and there were no legacies and
devises, total intestacy resulted (Art. 960[2], Civil Code).
The statement of the testatrix that she owned the "southern half" of
the conjugal lands is contrary to law because, although she was a In the instant case, the preterited heir was the surviving spouse. His
coowner thereof, her share was inchoate and proindiviso (Art. 143, preterition did not produce intestacy. Moreover, he signified his
Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 conformity to his wife’s will and renounced his hereditary rights.
Phil. 414). But that illegal declaration does not nullify the entire will. It
may be disregarded. It results that the lower court erred in not proceeding with the probate
of the will as contemplated in its uncancelled order of June 18,
The provision of the will that the properties of the testatrix should not 19713. Save in an extreme case where the will on its face is
be divided among her heirs during her husband’s lifetime but should intrinsically void, it is the probate court’s duty to pass first upon the
formal validity of the will. Generally, the probate of the will is
be kept intact and that the legitimes should be paid in cash is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479
and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12,
contrary to article 1080 of the Civil Code which reads: 1967, 21 SCRA 428).

"ART. 1080. Should a person make a 69

partition of his estate by an act inter vivos, or by

will, such partition shall be respected, insofar as

it does not prejudice the legitime of the

compulsory heirs.

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Wills & Succession/ Atty Uribe Directly challenged is the jurisdiction of the lower Court, in an action
for recognition: 1) to declare ZONIA as an illegitimate child of
To give effect to the intention and wishes of the testatrix is the first SOLANO; 2) to order the division of the estate in the same action
and principal law in the matter of testaments (Dizon-Rivera vs. Dizon, despite the pendency of Special Proceedings No. 842; and 3) to
L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable declare null and void the institution of heir in the Last Will and
to intestacy. An interpretation that will render a testamentary Testament of SOLANO, which was duly probated in the same
disposition operative takes precedence over a construction that will Special Proceedings No. 842, and concluding that total intestacy
nullify a provision of the will (Arts. 788 and 791, Civil Code). resulted.

Testacy is favored. Doubts are resolved in favor of testacy especially ZONIA additionally assails the jurisdiction of the Trial Court in
where the will evinces an intention on the part of the testator to declaring null and void the institution of heir in SOLANO's will; in
dispose of practically his whole estate. So compelling is the principle concluding that total intestacy resulted therefrom; and distributing the
that intestacy should be avoided and that the wishes of the testator shares of the parties in SOLANO's estate when said estate was
should prevail that sometimes the language of the will can be varied under the jurisdiction and control of the Probate Court in Special
for the purpose of giving it effect (Austria vs. Reyes, L-23079, Proceedings No. 842.
February 27, 1970, 31 SCRA 754, 762).
Normally, this would be the general rule. However, a peculiar
As far as is legally possible, the expressed desire of the testator situation is thrust upon us here. It should be recalled that SOLANO
must be followed and the dispositions of the properties in his will himself instituted the petition for probate of the Will during his
should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, lifetime, That proceeding was not one to settle the estate of a
33 SCRA 540, 546). deceased person that would be deemed terminated only upon the
The law has a tender regard for the wishes of the testator as final distribution of the residue of the hereditary estate. With the Will
expressed in his will because any disposition therein is better than allowed to probate, the case would have terminated except that it
that which the law can make (Castro vs. Bustos, L-25913, February appears that the parties, after SOLANO's death, continued to file
28, 1969, 27 SCRA 327, 341). pleadings therein Secondly, upon motion of the GARCIAS, and over
the objection of ZONIA, the Trial Court ordered the impleading of the
Solano vs. CA estate of SOLANO and proceeded on that basis. In effect, therefore,
the two cases were consolidated. The records further disclose that
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia the action for recognition (Civil Case No. 3956) and Spec. Procs. No.
(GARCIAS), claiming to be illegitimate children of Dr. Meliton 842 were pending before the same Branch of the Court and before
SOLANO, filed an action for recognition against him. In his Answer, the same Presiding Judge. Thirdly, it is settled that the allowance of
SOLANO denied paternity. On February 3, 1970, during the a Will is conclusive only as to its due execution. 5 A probate decree
pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano is not concerned with the intrinsic validity or legality of the provisions
was ordered substituted for the DECEDENT as the only surviving of the Will. 6
heir mentioned in his Last Will and Testament probated on March 10,
1969, or prior to his death, in Special Proceedings No. 842 of the Thus, the Trial Court and the Appellate Court had jurisdiction to
same Court. ZONIA entered her formal appearance as a "substitute conclude that, upon the facts, the GARCIAS and ZONIA were in the
defendant" on March 4, 1970 claiming additionally that she was the same category as illegitimate children; that ZONIA's
sole heir of her father, SOLANO, and asking that she be allowed to acknowledgment as a "natural child" in a notarial document executed
assume her duties as executrix of the probated Will with the least by SOLANO and Trinidad Tuagnon on December 22, 1943 was
interference from the GARCIAS who were "mere pretenders to be erroneous because at the time of her birth in 1941, SOLANO was still
illegitimate children of SOLANO". married to Lilly Gorand, his divorce having been obtained only in
1943, and, therefore, did not have the legal capacity to contract
In the hearing of May 13, 1970, the Trial Court specified the legal marriage at the time of ZONIA's conception, 7 that being compulsory
issues to be treated in the parties' respective Memoranda as: 1) the heirs, the GARCIAS were, in fact, preterited from SOLANO's Last
question of recognition of the GARCIAS; 2) the correct status of Will and Testament; and that as a result of said preterition, the
ZONIA, and 3) the hereditary share of each of them in view of the institution of ZONIA as sole heir by SOLANO is null and void
probated Will. 2 pursuant to Article 854 of the Civil Code.

Appealed to the Court of Appeals by ZONIA, said Court affirmed the As provided in the foregoing provision, the disposition in the Will
judgment in toto (CA-G.R. No. 49018). giving the usufruct in favor of Trinidad Tuagnon over the five parcels
ZONIA seeks a reversal of that affirmance in this petition, which was of land in Bantayan, Tabaco, Albay, is a legacy, recognized in Article
given due course. 563 of the Civil Code, 9 and should be respected in so far as it is not
inofficious. 10
At the outset, we should state that we are bound by the findings of
fact of both the Trial Court and the Appellate Court, particularly, the Since the legitime of illegitimate children consists of one-half (1/2) of
finding that the GARCIAS and ZONIA are, in fact, illegitimate children the hereditary estate, 13 the GARCIAS and ZONIA each have a
of the DECEDENT. The oral testimony and the documentary right to participation therein in the proportion of one-third (1/3) each.
evidence of record inevitably point to that conclusion, as may be ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6
gleaned from the following background facts: SOLANO, a resident of of the estate, while the GARCIAS will respectively be entitled to 1/3
Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour of 1/2 or 1/6 of the value of the estate.
he met a French woman, Lilly Gorand, who became his second wife
in 1928. The union was short-lived as she left him in 1929. In the The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in
early part of 1930, SOLANO started having amorous relations with Neri, et al. vs. Akutin, et al., 15 which held that where the institution
Juana Garcia, out of which affair was born Bienvenido Garcia on of a universal heir is null and void due to preterition, the Will is a
March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935, complete nullity and intestate succession ensues, is not applicable
Emeteria Garcia was born (Exhibits "B" & "2"). Their birth certificates herein because in the Nuguid case, only a one-sentence Will was
and baptismal certificates mention only the mother's name without involved with no other provision except the institution of the sole and
the father's name. The facts establish, however, that SOLANO universal heir; there was no specification of individual property; there
during his lifetime recognized the GARCIAS as his children by acts of were no specific legacies or bequests. It was upon that factual
support and provisions for their education. setting that this Court declared:

In 1935, SOLANO started living with Trinidad Tuagnon. Three Acain vs. CA
children were born out of this relation but only petitioner ZONIA Ana
Tuagnon, born on July 26, 1941, is living. In her Birth Certificate, her 70
status was listed as "illegitimate"; her mother as Trinidad Tuagnon;
her father as "P.N.C." (Exhibit "V"), or "padre no conocido".

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Wills & Succession/ Atty Uribe The universal institution of petitioner together with his brothers and
sisters to the entire inheritance of the testator results in totally
On May 29, 1984 petitioner Constantino Acain filed in the Regional abrogating the will because the nullification of such institution of
Trial Court of Cebu City Branch XIII, a petition for the probate of the universal heirs - without any other testamentary disposition in the will
will of the late Nemesio Acain and for the issuance to the same - amounts to a declaration that nothing at all was written. Carefully
petitioner of letters testamentary, docketed as Special Proceedings worded and in clear terms, Article 854 of the Civil Code offers no
No. 591-A-CEB (Rollo, p. 29), on the premise that Nemesio Acain leeway for inferential interpretation (Nuguid v. Nuguid), supra. No
died leaving a will in which petitioner and his brothers Antonio, Flores legacies nor devises having been provided in the will the whole
and Jose and his sisters Anita, Concepcion, Quirina and Laura were property of the deceased has been left by universal title to petitioner
instituted as heirs. The will allegedly executed by Nemesio Acain on and his brothers and sisters. The effect of annulling the institution of
February 17, 1960 was written in Bisaya (Rollo, p. 27) with a heirs will be, necessarily, the opening of a total intestacy (Neri v.
translation in English (Rollo, p. 31) submitted by petitioner without Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises
objection raised by private respondents. The will contained must, as already stated above, be respected.
provisions on burial rites, payment of debts, and the appointment of a
certain Atty. Ignacio G. Villagonzalo as the executor of the testament. For private respondents to have tolerated the probate of the will and
allowed the case to progress when on its face the will appears to be
Obviously, Segundo pre-deceased Nemesio. Thus, it is the children intrinsically void as petitioner and his brothers and sisters were
of Segundo who are claiming to be heirs, with Constantino as the instituted as universal heirs coupled with the obvious fact that one of
petitioner in Special Proceedings No. 591-A-CEB. After the petition the private respondents had been preterited would have been an
was set for hearing in the lower court on June 25, 1984 the exercise in futility. It would have meant a waste of time, effort,
oppositors (respondents herein Virginia A. Fernandez, a legally expense, plus added futility. The trial court could have denied its
adopted daughter of the deceased and the latter's widow Rosa probate outright or could have passed upon the intrinsic validity of
Diongson Vda. de Acain) filed a motion to dismiss on the the testamentary provisions before the extrinsic validity of the will
following grounds: (1) the petitioner has no legal capacity to was resolved (Cayetano v. Leonidas, supra; Nuguid v. Nuguid,
institute these proceedings; (2) he is merely a universal heir and (3) supra). The remedies of certiorari and prohibition were properly
the widow and the adopted daughter have been preterited. (Rollo, p. availed of by private respondents.
158). Said motion was denied by the trial judge.
Thus, this Court ruled that where the grounds for dismissal are
The pivotal issue in this case is whether or not private respondents indubitable, the defendants had the right to resort to the more
have been preterited. speedy, and adequate remedies of certiorari and prohibition to
correct a grave abuse of discretion, amounting to lack of jurisdiction,
Article 854 of the Civil Code provides: committed by the trial court in not dismissing the case, (Vda. de
Bacang v. Court of Appeals, supra) and even assuming the
"Art. 854. The preterition or omission of one, some, or all existence of the remedy of appeal, the Court harkens to the rule that
of the compulsory heirs in the direct line, whether living at in the broader interests of justice, a petition for certiorari may be
the time of the execution of the will or born after the death entertained, particularly where appeal would not afford speedy and
of the testator, shall annul the institution of heir; but the adequate relief. (Maninang v. Court of Appeals, supra).
devisees and legacies shall be valid insofar as they are not
inofficious. PREMISES CONSIDERED, the petition is hereby DENIED for lack of
merit and the questioned decision of respondent Court of Appeals
If the omitted compulsory heirs should die before the promulgated on August 30, 1985 and its Resolution dated October
testator, the institution shall be effectual, without prejudice 23, 1985 are hereby AFFIRMED.
to the right of representation."
XII. RESERVA TRONCAL
Preterition consists in the omission in the testator's will of the forced
heirs or anyone of them either because they are not mentioned Art. 891. The ascendant who inherits from his descendant any
therein, or, though mentioned, they are neither instituted as heirs nor property which the latter may have acquired by gratuitous title
are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; from another ascendant, or a brother or sister, is obliged to
Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the reserve such property as he may have acquired by operation of
widow is concerned, Article 854 of the Civil Code may not apply as law for the benefit of relatives who are within the third degree
she does not ascend or descend from the testator, although she is a and who belong to the line from which said property came. (871)
compulsory heir. Stated otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if she is omitted from the A number of Reservas and Reversions where allowed under the old
inheritance, for she is not in the direct line. (Art. 854, Civil Code) civil code but they were eliminated under the new civil code leaving
However, the same thing cannot be said of the other respondent only the Reserva Troncal. The elimination was in line with one of the
Virginia A. Fernandez, whose legal adoption by the testator has not principal objectives of the new civil code in the law of succession;
been questioned by petitioner (Memorandum for the Petitioner, pp. 8- namely, to prevent the estate from being entailed.
9). Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights The following are some of the reasons for its abolition:
and duties as if he were a legitimate child of the adopter and makes
the adopted person a legal heir of the adopter. It cannot be denied 1. creates uncertainty in the pwnership of property, because of the
that she was totally omitted and preterited in the will of the testator suspended ownership the reservista has no enthusiasm to preserve
and that both adopted child and the widow were deprived of at least or improve the property
their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally 2. confinement of property w/in a certain family for generations
adopted child. incompatible with the principle of socialization of ownership

Preterition annuls the institution of an heir and annulment throws 3. reserve is limited to the legitimate members of the family, and the
open to intestate succession the entire inheritance including "la father or mother of a natural child who inherits property from this
porcion libre (que) no hubiese dispuesto en virtual de legado, mejora child, and who in turn acquired it from snother progenitor acquires
o donacion" (Manresa, as cited in Nuguid v. Nuguid, supra, absolute dominion of the property w/o reservation.
Maninang v. Court of Appeals, 114 SCRA [19821). The only
provisions which do not result in intestacy are the legacies and 71
devises made in the will for they should stand valid and respected,
except insofar as the legitimes are concerned.

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Wills & Succession/ Atty Uribe sole surviving heirs of the aforesaid deceased; that since then the
Esparcias had been in possession of the property as owners.
4. in reserve viudal, the surviving spouse is obliged to resrve
properties left by deceased spouse to his if she remarries, but the From the above decision the Sienes spouses interposed the present
concubine is not obliged, thus, giving ptotection to illegitimate appeal, their principal contentions being, firstly, that the lower court
relation. erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan
was a reservable property; secondly, in annuling the sale of said lot
Purpose of Reserva troncal executed by Andrea Gutang in their favor; and lastly, in holding that
Cipriana Yaeso, as reservee, was entitled to inherit said land.
a. Resrve certain property in favor of certain relatives. As held by the trial court, it is clear upon the facts already stated, that
the land in question was reservable property. Francisco Yaeso
b. maintain as is possible, with respect to the property to which it inherited it by operation of law from his father Saturnino, and upon
refers, a separation between the paternal and maternal lines, so that Francisco's death, unmarried and without descendants, it was
property of one line may not pass to the other, or through them to inherited, in turn, by his mother, Andrea Gutang. The latter was,
strangers. therefore, under obligation to reserve it for the benefit of relatives
within the third degree belonging to the line from which said property
Nature of Reserva came, if any survived her. The record discloses in this connection
that Andrea Gutang died on December 13, 1951, the lone reservee
It creates a double resolutory condition to which the right of surviving her being Cipriana Yaeso who died only on January 13,
ownership of the person obliged to reserve is subjected. The 1952 (Exh. 10).
resolutory condition, are first, the death of the ascendant obliged to
reserve, and, second, the survivial at that moment of the relatives In connection with reservable property, the weight of opinion is that
within the tird degree belonging to the line from which the property the reserva creates two resolutory conditions, namely, (1) the death
came. of the ascendant obliged to reserve and (2) the survival, at the time
of his death, of relatives within the third degree belonging to the line
No reserve will exist in favor of illegitimate relatives, because the law from which the property came (6 Manresa 268-269; 6 Sanchez
has not used qualifying terms natural or illegitimate with respect to Roman 1934). The Court has held in connection with this matter that
the descendant or ascendant or relatives it is to be presumed to refer the reservista has the legal title and dominion to the reservable
only to legitimate ones. property but subject to a resolutory condition; that he is like a life
usufructuary of the reservable property; that he may alienate the
Relatives within the third degree: same but subject to reservation, said alienation transmitting only the
revocable and conditional ownership of the reservista, the rights
1st degree acquired by the transferee being revoked or resolved by the survival
of reservatorios at the time of death of the reservista (Edroso vs.
1. father or mother only when no descendants, Sablan, 25 Phil., 295; Lunsod vs. Ortega, 46 Phil., 664; Florentino vs.
Florentino, 40 Phil., 480; and Director of Lands vs. Aguas, 63 Phil.,
2nd degree 279).

2. grandparents of the line where thw property came, brothers of full The sale made by Andrea Gutang in favor of appellees was,
blood or half-blood therefore, subject to the condition that the vendees would definitely
acquire ownership, by virtue of the alienation, only if the vendor died
3rd degree without being survived by any person entitled to the reservable
property. Inasmuch as when Andrea Gutang died, Cipriano Yaeso
3. great GP, uncles by consanguinity full or half-blood, and nephews was still alive, the conclusion becomes inescapable that the previous
and nieces of full or half blood. sale made by the former in favor of appellants became of no legal
effect and the reservable property subject matter thereof passed in
38. Sienes vs. Esparcia exclusive ownership to Cipriana.

Appellants commence this action below to secure judgments (1) On the other hand, it is also clear that the sale executed by the
declaring null and void the sale executed by Paulina and Cipriana sisters Paulina and Cipriana Yaesco in favor of the spouse Fidel
Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Esparcia and Paulina Sienes was subject to a similar resolutory
Sienes; (2) ordering the Esparcia spouses to reconvey to appellants condition. The reserve instituted by law in favor of the heirs within the
Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental third degree belonging to the line from which the reservable property
Negros; and (3) ordering all the appellees to pay, jointly and came, constitutes a real right which the reservee may alienate and
severally, to appellants the sum of P500.00 as damages, plus the dispose of, albeit conditionally, the condition being that the alienation
costs of suit. In their answer appellees disclaimed any knowledge or shall transfer ownership to the vendee only if and when the reservee
information regarding the sale allegedly made on April 20, 1951 by survives the person obliged to reserve. In the present case, Cipriana
Andrea Gutang in favor of appellants and alleged that if such sale Yaeso, one of the reservees, was still alive when Andrea Gutang, the
was made, the same was void on the ground that Andrea Gutang person obliged to reserve, died. Thus the former became the
had no right to dispose of the property subject matter thereof. They absolute owner of the reservable property upon Andrea's death.
further alleged that said property had never been in possession of While it may be true that the sale made by her and her sister prior to
appellants, the truth being that appellees, as owners, had been in this event, became effective because of the occurrence of the
continuous possession thereof since the death of Francisco Yaeso. resolutory condition, we are not now in a position to reverse the
By way of affirmative defense and counterclaim, they further alleged appealed decision, in so far as it orders the reversion of the property
that on July 30, 1951, Paulina and Cipriana Yaeso, as the only in question to the Estate of Cipriana Yaeso, because the vendees —
surviving heirs of Francisco Yaeso, executed a public instrument of the Esparcia spouses — did not appeal therefrom.
sale in favor of the spouses Fidel Esparcia and Paulina Sienes, the
said sale having been registered together with an affidavit of WHEREFORE, the appealed decision — as above modified — is
adjudication executed by Paulina and Cipriana on July 18, 1951, as affirmed, with costs, and without prejudice to whatever action in
equity the Esparcia spouses may have against the Estate of Cipriana
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Florentino vs. Florentino

72

Wills & Succession/ Atty Uribe property which is not reservable, property and which constitutes his
legitime, according to article 809 of the Civil Code. But if, afterwards,
That Apolonio Isabelo Florentino II married the first time Antonia Faz all of the relatives, within the third degree, of the descendant (from
de Leon; that during the marriage he begot nine children called Jose, whom came the reservable property) die or disappear, the said
Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and property becomes free property, by operation of law, and is thereby
Magdalena of the surname Florentino y de Leon; that on becoming a converted into the legitime of the ascendant heir who can transmit it
widower he married the second time Severina Faz de Leon with at his death to his legitimate successors or testamentary heirs. This
whom he had two children, Mercedes and Apolonio III of the property has now lost its nature of reservable property, pertaining
surname Florentino y de Leon; that Apolonio Isabelo Florentino II thereto at the death of the relatives, called reservatarios, who
died on February 13, 1890; that he was survived by his second wife belonged within the third degree to the line from which such property
Severina Faz de Leon and the ten children first above mentioned; came.
that his eleventh son, Apolonio III, was born on the following 4th of
March 1890. Following the order prescribed by law in legitimate succession, when
there are relatives of the descendant within the third degree, the right
That on January 17 and February 13, 1890, Apolonio Isabelo of the nearest relative, called reservatario, over the property which
Florentino executed a will before the notary public of Ilocos Sur, the reservista (person holding it subject to reservation) should return
instituting as his universal heirs his aforementioned ten children, the to him, excludes that of the one more remote. The right of
posthumos ApoIonio III and his widow Severina Faz de Leon; that he representation cannot be alleged when the one claiming same as a
declared, in one of the paragraphs of said will, all his property should reservatario of the reservable property is not among the relatives
be divided among all of his children of both marriages. within the third degree belonging to the line from which such property
came, inasmuch as the right granted by the Civil Code in article 811
That Apolonio Florentino III, the posthumos son of the second is in the highest degree personal and for the exclusive benefit of
marriage, died in 1891; that his mother, Severina Faz de Leon, designated persons who are the relatives, within the third degree, of
succeeded to all his property described in the complaint; that the the person from whom the reservable property came. Therefore,
widow, Severina Faz de Leon died on November 18, 1908, leaving a relatives of the fourth and the succeeding degrees can never be
will instituting as her universal heiress her only living daughter, considered as reservatarios, since the law does not recognize them
Mercedes Florentino; that, as such heir, said daughter took as such.
possession of all the property left at the death of her mother,
Severina Faz de Leon; that among same is included the property, In spite of what has been said relative to the right of representation
described in the complaint, which the said Severina Faz de Leon on the part of one alleging his right as reservatario who is not within
inherited from her deceased son, the posthumos Apolonio, as the third degree of relationship, nevertheless there is right of
reservable property; that, as a reservist, the heir of the said representation on the part of reservatarios who are within the third
Mercedes Florentino deceased had been gathering for herself alone degree, mentioned by law, as in the case of nephews of the
the fruits of lands described in the complaint; that each and every deceased person from whom the reservable property came. These
one of the parties mentioned in said complaint is entitled to one- reservatarios have the right to represent their ascendants (fathers
seventh of the fruits of the reservable property described therein, and mothers) who are the brothers of the said deceased person and
either by direct participation or by representation, in the manner relatives within the third degree in accordance with article 811 of the
mentioned in paragraph 9 of the complaint. Civil Code.

In order to decide whether the plaintiffs are or are not entitled to There are then seven "reservatarios" who are entitled to the
invoke, in their favor, the provisions of article 811 of the Civil Code, reservable property left at the death of Apolonio III; the posthumos
and whether the same article is applicable to the question of law son of the aforementioned Apolonio Isabelo II, to wit, his three
presented in this suit, it is necessary to determine whether the children of his first marriage- Encarnacion, Gabriel, Magdalena; his
property enumerated in paragraph 5 of the complaint is of the nature three children, Jose, Espirita and Pedro who are represented by their
of reservable property; and, if so, whether in accordance with the own twelve children respectively; and Mercedes Florentino, his
provision of the Civil Code in article 811, Severina Faz de Leon (the daughter by a second marriage. All of the plaintiffs are the relatives
widow of the deceased Apolonio Isabelo Florentino) who inherited of the deceased posthumos son, Apolonio Florentino III, within the
said property from her son Apolonio Florentino III (born after the third degree (four of whom being his half-brothers and the remaining
death of his father Apolonio Isabelo) had the obligation to preserve twelve being his nephews as they are the children of his three half-
and reserve same for the relatives, within the third degree, of her brothers). As the first four are his relatives within the third degree in
aforementioned deceased son Apolonio III. their own right and the other twelve are such by representation, all of
them are indisputably entitled as reservatarios to the property which
The posthumos son, Apolonio Florentino III, acquired the property, came from the common ancestor, Apolonio Isabelo, to Apolonio
now claimed by his brothers, by a lucrative title or by inheritance from Florentino III by inheritance during his life-time, and in turn by
his aforementioned legitimate father, Apolonio Isabelo Florentino II. inheritance to his legitimate mother, Severina Faz de Leon, widow of
Although said property was inherited by his mother, Severina Faz de the aforementioned Apolonio Isabelo Florentino II.
Leon, nevertheless, she was in duty bound, according to article 811
of the Civil Code, to reserve the property thus acquired for the benefit The judgment appealed from is also founded on the theory that
of the relatives, within the third degree, of the line from which such article 811 of the Civil Code does not destroy the system of
property came. legitimate succession and that the pretension of the plaintiffs to apply
said article in the instant case would be permitting the reservable
According to the provisions of law, ascendants do not inherit the right to reduce and impair the forced legitime which exclusively
reservable property, but its enjoyment, use or trust, merely for the belongs to the defendant Mercedes Florentino, in violation of the
reason that said law imposes the obligation to reserve and preserve precept of article 813 of the same Code which provides that the
same for certain designated persons who, on the death of the said testator cannot deprive his heirs of their legitime, except in the cases
ascendants-reservists, (taking into consideration the nature of the expressly determined by law. Neither can he impose upon it any
line from which such property came) acquire the ownership of said burden, condition, or substitution of any kind whatsoever, saving the
property in fact and by operation of law in the same manner as provisions concerning the usufruct of the surviving spouse, citing the
forced heirs (because they are also such) said property reverts to decision of the Supreme Court of Spain of January 4, 1911.
said line as long as the aforementioned persons who, from the death
of the ascendantreservists, acquire in fact the right of reservatarios The principal question submitted to the court for decision consists
(persons for whom property is reserved), and are relatives, within the mainly in determining whether the property left at the death of
third degree, of the descendant from whom the reservable property Apolonio III, the posthumos son of Apolonio Isabelo II, was or was
came. not invested with the character of reservable property when it was
received by his mother, Severina Faz de Leon.
Any ascendant who inherits from his descendant any property, while
there are living, within the third degree, relatives of the latter, is 73
nothing but a life usufructuary or a fiduciary of the reservable
property received. He is, however, the legitimate owner of his own

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Wills & Succession/ Atty Uribe Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S.
Militar died, Jose Frias Chua contracted a second marriage with
The property enumerated by the plaintiffs in paragraph 5 of their Consolacion de la Torre with whom he had a child by the name of
complaint came, without any doubt whatsoever, from the common Juanito Frias Chua. Manuel Frias Chua died without leaving any
ancestor Apolonio Isabelo II, and when, on the death of Apolonio III issue. Then in 1929, Jose Frias Chua died intestate leaving his
without issue, the same passed by operation of law into the hands of widow Consolacion de la Torre and his son Juanito Frias Chua of the
his legitimate mother, Severina Faz de Leon, it became reservable second marriage and sons Ignacio Frias Chua and Lorenzo Frias
property, in accordance with the provision of article 811 of the Code, Chua of his first marriage. In Intestate Proceeding No. 4816, the
with the object that the same should not fall into the possession of lower court issued an order dated January 15, 1931 1 adjudicating,
persons other than those comprehended within the order of among others, the one-half (1/2) portion of Lot No. 399 and the sum
succession traced by the law from Apolonio Isabelo II, the source of of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la
said property. If this property was in fact clothed with the character Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his
and condition of reservable property when Severina Faz de Leon son in the second marriage; marriage; P3,000.00 in favor of Lorenzo
inherited same from her son Apolonio, III, she did not thereby acquire Frias Chua; and P1,550.00 in favor of Ignacio Frias, Chua , his sons
the dominion or right of ownership but only the right of usufruct or of in the second marriage; By the virtue of said adjudication, Transfer
fiduciary, with the necessary obligation to preserve and to deliver or Certificate of Title No. TR-980 (14483) 2 dated April 28, 1932 was
return it as such reservable property to her deceased son's relatives issued by the Register of Deeds in the names of Consolacion de la
within the third degree, among whom is her daughter, Mercedes Torre and Juanito Frias Chua as owners-pro-indiviso of Lot No. 339.
Florentino.
On February 27, 1952, Juanito Frias Chua of the second marriage
Reservable property neither comes, nor falls under, the absolute died intestate without any issue. After his death, is mother
dominion of the ascendant who inherits and receives same from his Consolacion de la Torre succeeded to his pro-indiviso share of her
descendant, therefore it does not form part of his own property nor son Juanito as a result of which Transfer Certificate of Title No.
become the legitimate of his forced heirs. It becomes his own 31796 covering the whole Lot No. 399 was issued in her name. Then
property only in case that all the relatives of his descendant shall on March 5, 1966, Consolacion de la Torre died intestate leaving no
have died (reservista), in which case said reservable property losses direct heir either in the descending or ascending line except her
such character. brother and sisters.

With full right Severina Faz de Leon could have disposed in her will on May 11, 1966 before the respondent Court of First Instance of
of all her own property in favor of her only living daughter, Mercedes Negros Occidental, Branch V, praying that the one-half (1/2) portion
Florentino, as forced heiress. But whatever provision there is in her of Lot No. 399 which formerly belonged to Juanito Frias Chua but
will concerning the reservable property received from her son which passed to Consolacion de la Torre upon the latter's death, be
Apolonio III, or rather, whatever provision will reduce the rights of the declared as reservable property for the reason that the lot in question
other reservatarios, the half brothers and nephews of her daughter was subject to reserva troncal pursuant to Article 981 of the New
Mercedes, is unlawful, null and void, inasmuch as said property is Civil code. private respondent as administratrix of the estate of the
not her own and she has only the right of usufruct or of fiduciary, with Consolacion de la Torre and the heirs of the latter traversed
the obligation to preserve and to deliver same to the reservatarios, individually the complaint of petitioners. 4
one of whom is her own daughter, Mercedes Florentino.
On July 29, 1968, the respondent Court rendered a decision
For this reason, in no manner can it be claimed that the legitime of dismissing the complaint of petitioners. Hence this instant petition.
Mercedes Florentino, coming from the in heritance of her mother
Severina Faz de Leon, has been reduced and impaired; and the The pertinent provision on reserva troncal under the New Civil Code
application of article 811 of the Code to the instant case in no way provides:
prejudices the rights of the defendant Mercedes Florentino,
inasmuch as she is entitled to a part only of the reservable property, "ART. 891. The ascendant who inherits
there being no lawfull or just reason which serves as real foundation
to disregard the right to Apolonio III's other relatives, within the third from his descendant any property which the
degree, to participate in the reservable property in question. As these
relatives are at present living, claiming for it with an indisputable latter may have required by gratuitous title from
right, we cannot find any reasonable and lawful motive why their
rights should not be upheld and why they should not be granted another ascendant, or a brother or sister, is
equal participation with the defendant in the litigated property.
obliged to reserve such property as he may have
Just because she has a forced heiress, with a right to her
inheritance, does not relieve Severina of her obligation to reserve the acquired by operation of law for the benefit of
property which she received from her deceased son, nor did same
lose the character of reservable property, held before the relatives who are within the third degree and
reservatarios received same
belong to the line Iron which said property
For the foregoing reasons it follows that with the reversal of the order
of decision appealed from we should declare, as we hereby do, that came."
the aforementioned property, inherited by the deceased Severina
Faz de Leon from her son Apolonio Florentino III, is reservable Pursuant to the foregoing provision, in order that a property may be
property; that the plaintiffs, being relatives of the deceased Apolonio impressed with a reservable character the following requisites must
III within the third degree, are entitled to six-sevenths of said exist, to wit: (1) that the property was acquired by a descendant from
reoervable property; that the defendant Mercedes is entitled to the an ascendant or from a brother or sister by gratuitous title; (2) that
remaining seventh part thereof; that the latter, together with her said descendant died without an issue: (3) that the property is
husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, six- inherited by another ascendant by operation of law; and (4) that there
sevenths of the fruits or rents, claimed from said portion of the land are relatives within the third degree belonging to the line from which
and of the quantity claimed, from January 17, 1918, until fully said property came. 5 In the case before Us, all of the foregoing
delivered; and that the indemnity for one thousand pesos (P1,000) requisites are present. Thus, as borne out by the records, Juanito
prayed for in the complaint is denied, without special findings as to Frias Chua of the second marriage died intestate in 1952; he died
the costs of both instances. So ordered. without leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399
was acquired by his mother, Consolacion de la Torre by operation of
Chua vs. CFI law. When Consolacion de la Torre died, Juanito Frias Chua who
died intestate had relatives within the third degree. These relatives
It appears that in the first marriage of Jose Frias Chua with Patricia are Ignacio Frias Chua and Dominador Chua and Remedios Chua,
S. Militar alias Sy Quio, he sired three children, namely: Ignacio, the supposed legitimate children of the deceased Lorenzo Frias
Chua, who are the petitioners herein.
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The crux of the problem in instant petition is focused on the first
requisite of reserva troncal — whether the property in question as

74

Wills & Succession/ Atty Uribe The parties hereby agree to submit for judicial determination in this
case the legal issue of whether defendant Dalisay D. Tongko-
acquired by Juanito Frias Chua from his father, Jose Frias Chua, Camacho is entitled to the whole of the seven (7) parcels of land in
gratuitously or not. In resolving this point, the respondent Court said: question, or whether the plaintiffs, as third degree relatives of
Faustino Dizon are reservatarios (together with said defendant) of
We are not prepared to sustain the respondent Court's conclusion the one-half pro-indiviso share therein which was inherited by
that the lot in question is not subject to a reserva troncal under Art. Eustacio Dizon from his son Faustino Dizon, and entitled to three-
891 of the New Civil Code. It is, As explained by Manresa which this fourths (3/4) of said one-half pro-indiviso share, or three-eights (3/8)
Court quoted with approval in Cabardo v. Villanueva, 44 Phil. 186, of said seven (7) parcels of land, and, therefore, to three eights (3/8)
"The transmission is gratuitous or by gratuitous title when the of the rentals collected and to be collected by defendant Dalisay P.
recipient does not give anything in return." It matters not whether the Tongko Camacho from the tenants of said parcels of land, minus the
property transmitted be or be not subject to any prior charges; what expenses and/or real estate taxes corresponding to plaintiffs' share
is essential is that the transmission be made gratuitously, or by an in the rentals.
act of mere liberality of the person making it, without imposing any
obligation on the part of the recipient; and that the person receiving In view of the fact that the parties are close blood relatives and have
the property gives or does nothing in return; or, as ably put by an acted upon legal advice in pursuing their respective claims, and in
eminent Filipino commentator, 6 "the essential thing is that the order to restore and preserve harmony in their family relations, they
person who transmits it does so gratuitously, from pure generosity, hereby waive all their claims against each other for damages (other
without requiring from the transferee any prestation." It is evident than legal interest on plaintiffs' share in the rentals which this
from the record that the transmission of the property in question to Honorable Court may deem proper to award), attorney's fees and
Juanito Frias Chua of the second marriage upon the death of his expenses of litigation which shall be borne by the respective parties."
father Jose Frias Chua was by means of a hereditary succession and 1
therefore gratuitous.
The issue raised is whether, as contended by the plaintiffs-appellees
But the obligation of paying the Standard Oil Co. of New York the and ruled by the lower Court, all relatives of the praepositus within
amount of P3,971.20 is imposed upon Consolacion de la Torre and the third degree in the appropriate line succeed without distinction to
Juanito Frias Chua not personally by the deceased Jose Frias Chua the reservable property upon the death of the reservista, as seems to
in his last will and testament but by an order of the court in the be implicit in Art. 891 of the Civil Code, which reads: or, as asserted
Testate Proceeding No. 4816 dated January 15, 1931. As long as by the defendant-appellant, the rights of said relatives are subject to,
the transmission of the property to the heirs is free from any and should be determined by, the rules on intestate succession.
condition imposed by the deceased himself and the property is given
out of pure generosity, it is gratuitous. It does not matter if later the That question has already been answered in Padura vs. Baldovino,
court orders one of the heirs, in this case Juanito Frias Chua, to pay 3 where the reservatario was survived by eleven nephews and
the Standard Oil Co. of New York the amount of P3,971.20 This does nieces of the praepositus in the line of origin, four of whole blood and
not change the gratuitous nature of the transmission of the property seven of half blood, and the claim was also made that all eleven
to him. As far as the deceased Jose Frias Chua is concerned the were entitled to the reversionary property in equal shares. This
transmission of the property to his heirs is gratuitous. This being the Court, speaking through Mr. Justice J.B.L. Reyes, declared the
case the lot in question is subject to reserva troncal under Art. 891 of principles of intestacy to be controlling, and ruled that the nephews
the New Civil Code. and nieces of whole blood were each entitled to a share double that
of each of the nephews and nieces of half blood in accordance with
De papa vs. Camacho Article 1006 of the Civil Code.

They stipulate that Romana Tioco during her lifetime gratuitously "The issue in this appeal may be formulated as follows: In a case of
donated four (4) parcels of land to her niece Toribia Tioco (legitimate reserva troncal where the only reservatarios (reserves) surviving the
sister of plaintiffs), which parcels of land are presently covered by reservista, and belonging to the line of origin, are nephews of the
Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the descendant (prepositus), but some are nephews of the half blood
Registry of Deeds of Manila, copies of which are attached to this and the others are nephews of the whole blood, should the reserved
stipulation as Annexes 'B', 'B-1', and 'B-2'. properties be apportioned among them equally, or should the
nephews of the whole blood take a share twice as large as that of the
They stipulate that Toribia Tioco died intestate in 1915, survived by nephews of the half blood?
her husband, Eustacio Dizon, and their two legitimate children,
Faustino Dizon and Trinidad Dizon (mother of defendant Dalisay D. The case is one of first impression and has divided the Spanish
Tongko-Camacho) and leaving the afore-mentioned four (4) parcels commentators on the subject. After mature reflection, we have
of land as the inheritance of her said two children in equal pro- concluded that the position of the appellants is correct. The reserva
indiviso shares. troncal is a special rule designed primarily to assure the return of the
reservable property to the third degree relatives belonging to the line
They stipulate that in 1937, Faustino Dizon died intestate, single and from which the property originally came, and avoid its being
without issue, leaving his one-half (1/2) pro-indiviso share in the dissipated into and by the relatives of the inheriting ascendant
seven (7) parcels of land above-mentioned to his father, Eustacio (reservista).
Dizon, as his sole intestate heir, who received the said property
subject to a reserva troncal which was subsequently annotated on "Following the order prescribed by law in legitimate succession when
the Transfer Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C' and 'C-1'. there are relatives of the descendant within the third degree, the right
of the nearest relative, called reservatario, over the property which
They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and the reservista (person holding it subject to reservation) should return
her rights and interests in the parcels of land abovementioned were to him, excludes that of the one more remote. The right of
inherited by her only legitimate child, defendant Dalisay D. Tongko- representation cannot be alleged when the one claiming same as a
Camacho, subject to the usufructuary right of her surviving husband, reservatario of the reservable property is not among the relatives
defendant Primo Tongko. They stipulate that on June 14, 1965, within the third degree belonging to the line from which such property
Eustacio Dizon died intestate, survived his only legitimate came, inasmuch as the right granted by the Civil Code in Article 811
descendant, defendant Dalisay D. Tongko-Camacho. is in the highest degree personal and for the exclusive benefit of
designated persons who are within the third degree of the person
The parties agree that defendant Dalisay D. Tongko-Camacho now from whom the reservable property came. Therefore, relatives of the
owns one-half (1/2) of all the seven (7) parcels of land fourth and the succeeding degrees can never be considered as
abovementioned as her inheritance from her mother, Trinidad Dizon- reservatarios, since the law does not recognize them as such.
Tongko.
75
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Wills & Succession/ Atty Uribe interregnum of the reserva;" 6 i.e., the property took a "detour"
through an ascendant — thereby giving rise to the reservation —
"In spite of what has been said relative to the right of representation before its transmission to the reservatario. Upon the stipulated facts,
on the part of one alleging his right as reservatario who is not within and by virtue of the rulings already cited, the defendant-appellant
the third degree of relationship, nevertheless there is right of Dalisay Tongko-Camacho is entitled to the entirety of the
representation on the part of reservatarios who are within the third reversionary property to the exclusion of the plaintiffs-appellees.
degree mentioned by law, as in the case of nephews of the
deceased person from whom the reservable property came . . ." XIV. RESERVA ADOPTIVA

Proximity of degree and right of representation are basic principles of P.D. 603; Art. 39. Effects of Adoption. - The adoption shall:
ordinary intestate succession; so is the rule that whole blood brothers
and nephews are entitled to a share double that of brothers and (1) Give to the adopted person the same rights and
nephews of half blood. If in determining the rights of the reservatarios duties as if he were a legitimate child of the adopter:
inter se, proximity of degree and the right of representation of Provided, That an adopted child cannot acquire
nephews are made to apply, the rule of double share for immediate Philippine citizenship by virtue of such adoption:
collaterals of the whole blood should be likewise operative.
(2) Dissolve the authority vested in the natural parent
In other words, the reserva troncal merely determines the group of or parents, except where the adopter is the spouse of
relatives (reservatarios) to whom the property should be returned; the surviving natural parent;
but within that group, the individual right to the property should be
decided by the applicable rules of ordinary intestate succession, (3) Entitle the adopted person to use the adopter's
since Art. 891 does not specify otherwise. This conclusion is surname; and
strengthened by the circumstance that the reserva being an
exceptional case, its application should be limited to what is strictly (4) Make the adopted person a legal heir of the
needed to accomplish the purpose of the law. adopter: Provided, That if the adopter is survived by
legitimate parents or ascendants and by an adopted
Reversion of the reservable property being governed by the rules on person, the latter shall not have more successional
intestate succession, the plaintiffs-appellees must be held without rights than an acknowledged natural child: Provided,
any right thereto because, as aunt and uncles, respectively, of further, That any property received gratuitously by the
Faustino Dizon (the praepositus), they are excluded from the adopted from the adopter shall revert to the adopter
succession by his niece, the defendant-appellant, although they are should the former predecease the latter without
related to him within the same degree as the latter. legitimate issue unless the adopted has, during his
lifetime, alienated such property: Provided, finally,
It will be seen that under the preceding articles, brothers and sisters That in the last case, should the adopted leave no
and nephews and nieces inherited ab intestato ahead of the property other than that received from the adopter,
surviving spouse, while other collaterals succeeded only after the and he is survived by illegitimate issue or a spouse,
widower or widow. The present Civil Code of the Philippines merely such illegitimate issue collectively or the spouse shall
placed the spouse on a par with the nephews and nieces and receive one-fourth of such property; if the adopted is
brothers and sisters of the deceased, but without altering the survived by illegitimate issue and a spouse, then the
preferred position of the latter vis a vis the other collaterals." former collectively shall receive one-fourth and the
This conclusion is fortified by the observation, also made in Padura, latter also one-fourth, the rest in any case reverting to
supra, that as to the reservable property, the reservatarios do not the adopter, observing in the case of the illegitimate
inherit from the reservista, but from the descendant praepositus: issue the proportion provided for in Article 895 of the
Civil Code.
". . . It is likewise clear that the reservable property is no part of the
estate of the reservista, who may not dispose of it by will, as long as The adopter shall not be a legal heir of the adopted person,
there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). whose parents by nature shall inherit from him, except that if
The latter, therefore, do not inherit from the reservista, but from the the latter are both dead, the adopting parent or parents take the
descendant prepositus, of whom the reservatarios are the heirs place of the natural parents in the line of succession, whether
mortis causa, subject to the condition that they must survive the testate or interstate.
reservista.
Teotica vs. Del Val Chan
"The contention that an intestacy proceeding is still necessary rests
upon the assumption that the reservatario will succeed in, or inherit, Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in
the reservable property from the reservista. This is not true. The the City of Manila leaving properties worth P600,000.00. She left a
reservatario is not the reservista's successor mortis causa nor is the will written in Spanish which she executed at her residence in No. 2
reservable property part of the reservista's estate; the reservatario Legarda St., Quiapo, Manila. She affixed her signature at the bottom
receives the property as a conditional heir of the descendant of the will and on the left margin of each and every page thereof in
(prepositus), said property merely reverting to the line of origin from the presence of Pilar Borja, Pilar G. Sanchez, and Modesto
which it had temporarily and accidentally strayed during the Formilleza, who in turn affixed their signatures below the attestation
reservista's lifetime. The authorities are all agreed that there being clause and on the left margin of each and every page of the will in
reservatarios that survive the reservista, the matter must be deemed the presence of the testatrix and of each other. Said will was
to have enjoyed no more than a life interest in the reservable acknowledged before Notary Public Niceforo S. Agaton by the
property. testatrix and her witnesses.

It is a consequence of these principles that upon the death of the Among the many legacies and devises made in the will was one of
reservista, the reservatario nearest to the prepositus (the appellee in P20,000.00 to Rene A. Teotico, married to the testatrix's niece
this case) becomes, automatically and by operation of law, the owner named Josefina Mortera. To said spouses the testatrix left the
of the reservable property. As already stated, that property is no part usufruct of her interest in the Calvo building, while the naked
of the estate of the reservista, and does not even answer for the ownership thereof she left in equal parts to her grandchildren who
debts of the latter . . ."
76
Had the reversionary property passed directly from the praepositus,
there is no doubt that the plaintiffs-appellees would have been
excluded by the defendant-appellant under the rules of intestate
succession. There is no reason why a different result should obtain
simply because "the transmission of the property was delayed by the

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Wills & Succession/ Atty Uribe inherit. Of course, there is a blood tie, but the law does not recognize
it. In this, article 943 is based upon the reality of the facts and upon
are the legitimate children of said spouses. The testatrix also the presumptive will of the interested parties; the natural child is
instituted Josefina Mortera as her sole and universal heir to all the disgracefully looked down upon by the legitimate family; the
remainder of her properties not otherwise disposed of in the will. legitimate family is, in turn, hated by the natural child; the latter
considers the privileged condition of the former and the resources of
Ana del Val Chan, claiming to be an adopted child of Francisca which it is thereby deprived; the former, in turn, sees in the natural
Mortera, a deceased sister of the testatrix, as well as an child nothing but the product of sin, a palpable evidence of a blemish
acknowledged natural child of Jose Mortera, a deceased brother of upon the family. Every relation is ordinarily broken in life; the law
the same testatrix, filed on September 2, 1955 an opposition to the does no more them recognize this truth, by avoiding further grounds
probate of the will alleging the following grounds: (1) said will was not of resentment.' (7 Manresa, 3d ed., p. 110.)"
executed as required by law; (2) the testatrix was physically and
mentally incapable to execute the will at the time of its execution; and The oppositor cannot also derive comfort from the fact that she is an
(3) the will was executed under duress, threat or influence of fear. adopted child of Francisca Mortera because under our law the
relationship established by adoption is limited solely to the adopter
After the parties had presented their evidence, the probate court and the adopted does not extend to the relatives of the adopting
rendered its decision on November 10, 1960 admitting the will to parents or of the adopted child except only as expressly provided for
probate but declaring the disposition made in favor of Dr. Rene by law. Hence, no relationship is created between the adopted and
Teotico void with the statement that the portion to be vacated by the the collaterals of the adopting parents. As a consequence, the
annulment should pass to the testatrix's heirs by way of intestate adopted is an heir of the adopter but not of the relatives of the
succession. adopter.

The motions for reconsideration above adverted to having been "The relationship established by the adoption, however, is limited to
denied, both petitioner and oppositor appealed from the decision, the the adopting parent, and does not extend to his other relatives,
former from that portion which nullifies the legacy in favor of Dr. except as expressly provided by law. Thus, the adopted child cannot
Rene Teotico and declares the vacated portion as subject of be considered as a relative of the ascendants and collaterals of the
succession in favor of the legal heirs, and the latter from that portion adopting parents, nor of the legitimate children which they may have
which admits the will to probate. And in this instance both petitioner after the adoption, except that the law imposes certain impediments
and oppositor assign several error which, stripped of non-essentials, to marriage by reason of adoption. Neither are the children of the
may be boiled down to the following: (1) Has oppositor Ana del Val adopted considered as descendants of the adopter. The relationship
Chan the right to intervene in this proceeding?; (2) Has the will in created is exclusively between, the adopter and the adopted, and
question been duly admitted to probate?; and (3) Did the probate does not extend to the relatives of either." (Tolentino, Civil Code of
court commit an error in passing on the intrinsic validity of the the Philippines, Vol. 1, p. 652)
provisions of the will and in determining who should inherit the
portion to be vacated by the nullification of the legacy made in favor We have examined the evidence on the matter and we are fully in
of Dr. Rene Teotico? accord with the foregoing observation. Moreover, the mere claim that
Josefina Mortera and her husband Rene Teotico had the opportunity
It is a well-settled rule that in order that a person may be allowed to to exert pressure on the testatrix simply because she lived in their
intervene in a probate proceeding he must have an interest in the house several years prior to the execution of the will and that she
estate, or in the will, or in the property to be affected by it either as was old and suffering from hypertension in that she was virtually
executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat isolated from her friends for several years prior to her death is
Hua, et al., L-17091, September 30, 1963); and an interested party insufficient to disprove what the instrumental witnesses had testified
has been defined as one who would be benefitted by the estate such that the testatrix freely and voluntarily and with full consciousness of
as an heir or one who has a claim against the estate like a creditor the solemnity of the occasion executed the will under consideration.
(Idem.). On the other hand, in Saguinsin vs. Lindayag, et al., L- The exercise of improper pressure and undue influence must be
17750, December 17, 1962, this Court said: supported by substantial evidence and must be of a kind that would
overpower and subjugate the mind of the testatrix as to destroy her
"According to Section 2, Rule 80 of the Rules of Court, a petition for free agency and make her express the will of another rather than her
letters of administration must be filed by an 'interested person.' An own (Coso vs. Deza, 42 Phil., 596). The burden is on the person
interested party has been defined in this connection as one who challenging the will that such influence was exerted at the time of its
would be benefitted by the estate, such as an heir, or one who has a execution, a matter which here was not done, for the evidence
claim against the estate, such as a creditor (Intestate Estate of Julio presented not only is sufficient but was disproved by the testimony
Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction the instrumental witnesses.
that in civil actions as well as special proceedings, the interest
required in order that a person may be a party thereto must be The question of whether the probate court could determine the
material and direct, and not merely indirect or contingent. (Trillana intrinsic validity of the provisions of a will has been decided by this
vs. Crisostomo, G. R. No. L-3370, August 22, 1951; Rapinosa vs. Court in a long line of decisions among which the following may be
Barrion, 70 Phil. 311)." cited: "Opposition to the intrinsic validity or legality of the provisions
of the will cannot be entertained in probate proceeding because its
The question now may be asked: Has oppositor any interest in any of only purpose is merely to determine if the will has been executed in
the provisions of the will, and, in the negative, would she acquire any accordance with the requirements of the law."
right to the estate in the event that the will is denied probate?
"To establish conclusively as against everyone, and once for all, the
Under the terms of the will, oppositor has no right to intervene facts that a will was executed with the formalities required by law and
because she has no interest in the estate either as heir, executor, or that the testator was in a condition to make a will, is the only purpose
administrator, nor does she have any claim to any property affected of the proceedings under the new code for the probate of a will. (Sec.
by the will, because it nowhere appears therein any provision 625.) The judgment in such proceedings determines and can
designating her as heir, legatee or devisee of any portion of the determine nothing more. In them the court has no power to pass
estate. She has also no interest in the will either as administratrix or upon the validity of any provisions made in the will. It can not decide,
executrix. Neither has she any claim against any portion of the estate for example, that a certain legacy is void and another one valid."
because she is not a co-owner thereof, and while she previously had
an interest in the Calvo building located in Escolta, she had already II. DISINHERITANCE
disposed of it long before the execution of the will.
77
"'Between the natural child and the legitimate relatives of the father
or mother who acknowledged it, the Code denies any right of
succession. They cannot be called relatives and they have no right to

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Wills & Succession/ Atty Uribe not the conditional disinheritance, properly speaking, that is
allowable.
Art. 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes expressly A partial disinheritance with partial pardon is inconceivable. The
stated by law. (848a) offense is one; it cannot be separated into component parts. The
testator cannot be partly offended and partly not.
Disinheritance may be defined as the act by which the testator, for a
just cause, deprives a compulsory heir of his right to the legitime. Art. 918. Disinheritance without a specification of the cause, or
It is a means given to the testator to punish such of his compulsory for a cause the truth of which, if contradicted, is not proved, or
heirs who have committed acts which render them unworthy of which is not one of those set forth in this Code, shall annul the
benefit or generosity. The law saves the testator from the pain of institution of heirs insofar as it may prejudice the person
seeing a portion of his property pass forcibly to an ungrateful heir or disinherited; but the devises and legacies and other
to one who may have brought dishonor to him. testamentary dispositions shall be valid to such extent as will
not impair the legitime. (851a)
A disinheritance totally excludes the disinherited heir from the
inheritance not only the legitme but the entire amount that he would This article pertain to effects of a disinheritance which does not have
have received as intestate heir. one or more of the essential requisites for its validity. It likewise
Ratio: the law of intestacy is merely the presumed will of the testator, applies to cases of reconciliation after a disinheritance has been
and cannot prevail over the expressed will in the form of a valid made.
disinheritance. If the disinheritance deprives the compulsory heir of
his legitime reserved by law to him all the more that he should be The ineffective disinheritance does not affect the disposition of the
deprived of the portion which ca nbe freely disposed of. testator with respect to the free portion. The reason is the
disinheritance in this case refers only only to the legitime of the heir,
As to the intestate heirs such as the collateral relatives or those and therefore, it is only this portion that is affected by the nullity or
within the fifth civil degree of consanguinity the testator may ineffectiveness of such disinheritance.
disinherit them for any reason at all. They are not heirs protected by
law as a compulsory heir designated. Since they are mere heirs of Where the disinheritance is ineffective in this case, the compulsory
the presumed will their succession depends only upon the discretion heir must be given all that he is entitiled to receive as if the
of the testator or his presumed will when none was made. disinheritance has not been made, without prejudice to lawful
dispositions made by the testator in favor of others.
Art. 916. Disinheritance can be effected only through a will
wherein the legal cause therefor shall be specified. (849) Art. 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well
Art. 917. The burden of proving the truth of the cause for as illegitimate:
disinheritance shall rest upon the other heirs of the testator, if
the disinherited heir should deny it. (850) (1) When a child or descendant has been found guilty
of an attempt against the life of the testator, his or her
Requisites of disinheritance: spouse, descendants, or ascendants;

1. heir must be designated by name as to leave no (2) When a child or descendant has accused the
doubt; testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
2. must be for cause provided by law; has been found groundless;
3. made in the will;
4. made expressly stating the causes in the will; (3) When a child or descendant has been convicted of
5. cause msut be certain, true , and proved adultery or concubinage with the spouse of the
6. must be unconditional; testator;
7. must be total
(4) When a child or descendant by fraud, violence,
There can be no extension of the causes for disinheritance by intimidation, or undue influence causes the testator to
analogy. The causes assigned by the testator may be graver or more make a will or to change one already made;
serious than those given by the law, but if they are not among those
enumerated by the law, the disinheritance will be ineffective. (5) A refusal without justifiable cause to support the
parent or ascendant who disinherits such child or
The will must be valid. Otherwise, the disinheritance will not be descendant;
effective.
(6) Maltreatment of the testator by word or deed, by
The law does not admit tacit disinheritance. the child or descendant;

The last will of a person may be expressed in different statements, all (7) When a child or descendant leads a dishonorable
of them combined being considered as one last expression of his will or disgraceful life;
mortis causa. There will be a valid disinheritance if the cause for it
has been expressed in one statement, and the disinheritance is (8) Conviction of a crime which carries with it the
made in another, provided that the necessary connection between penalty of civil interdiction. (756, 853, 674a)
the cause and the disinheritance is clearly established.
Attempt against the life includes all the different degrees of
As a general rule, a disineritance must be unconditional. But when commission of the crime, such as attempted, frustrated, and
the disinheritance is made in the form of a conditional pardon, it is
generally considered as walid. In such case, there is an existing legal 78
cause for disinheritance, but the pardon for such cause is made
dependent upon some condition. The condition, however, should be
related to the cause for disinheritance, and not by a mere caprice or
whim of the testator. Ir is clear that it is the conditional pardon, and

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Wills & Succession/ Atty Uribe What is dishonorable or disgraceful life is largely a matter of
appreciation and opinion. If denied, the burden of proof is lodeged to
consummated. It is essential though, that the heir be convicted the others interested in the estate. Ultimately, it is the opinion of the
despite the following: court which will be the basis of the disinheritance.

a. prescription of penalty; The conviction of the crime which carries the penalty of Civil
b. pardon and amnesty both of which interdiction must be by final judgement.

imply conviction; Art. 920. The following shall be sufficient causes for the
c. mere accomplice in the crime disinheritance of parents or ascendants, whether legitimate or
illegitimate:
Exception on attempt against the life are the following:
(1) When the parents have abandoned their children or
1. intention is lacking induced their daughters to live a corrupt or immoral
2. conviction for mere reckless imprudence or negligence life, or attempted against their virtue;

though mitigated (2) When the parent or ascendant has been convicted
3. justifying circumstance under the RPC of an attempt against the life of the testator, his or her
4. accessory after the fact spouse, descendants, or ascendants;
5. prosecution dismissed even if provisional only
6. prescription of the crime (3) When the parent or ascendant has accused the
7. appeal to the higher court reverses conviction testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
Elements od false accusation: has been found to be false;

1. act of accusing the testator; (4) When the parent or ascendant has been convicted
2. judicial declaration that such accusation is false; of adultery or concubinage with the spouse of the
3. offense charged is punishable be 6 years imprisonment. testator;

The heir convicted of adultery or concubinage with the spouse of (5) When the parent or ascendant by fraud, violence,
testator is disinherited by the law. But the law does not provide when intimidation, or undue influence causes the testator to
the testator himself is guilty of adultery. In such case article 1028 will make a will or to change one already made;
apply in relation to article 729, prohibition to donate to a paramour.
(6) The loss of parental authority for causes specified
Judicial demand for support is not necessary. The law does not in this Code;
require it, the question of whether there has been a refusal to give
such support without justifiable cause is open to proof if the (7) The refusal to support the children or descendants
disinherited child or descendant denies it. Article 303 gives cause for without justifiable cause;
the termination of the obligation the support and these are justifiable
grounds to refuse support except of course the death of the preson (8) An attempt by one of the parents against the life of
entitiled to support. the other, unless there has been a reconciliation
between them. (756, 854, 674a)
Art. 303. The obligation to give support shall also cease:
Abandonment should be understood in a general sense, so as to
(1) Upon the death of the recipient; include failure to give due care, attention, and support.

(2) When the resources of the obligor have been reduced What is corrupt and immoral life will ultimately be MATTER OF
to the point where he cannot give the support without JUDICIAL APPRAISAL and opinion, if the parent denies this cause
neglecting his own needs and those of his family; for disinheritance. The acts which the daughter has been indiuced by
the parent to commit should be proved. Daughters in the article must
(3) When the recipient may engage in a trade, profession, be construed to include all female descendants.
or industry, or has obtained work, or has improved his
fortune in such a way that he no longer needs the Attempt against the virtue does not require final conviction. It is
allowance for his subsistence; enough that he has committed acts which would have amounted to
rape, seduction, or acts of lasciviousness, against such daughter.
(4) When the recipient, be he a forced heir or not, has
committed some act which gives rise to disinheritance; Loss of parental are provided for in the Family Code.

(5) When the recipient is a descendant, brother or sister of Art. 229. Unless subsequently revived by a final judgment, parental
the obligor and the need for support is caused by his or her authority also terminates:
bad conduct or by the lack of application to work, so long
as this cause subsists. (152a) (1) Upon adoption of the child;

Maltreatment by deed covers all acts of violence against the testator (2) Upon appointment of a general guardian;
short of an attempt against the life. Maltreatment by word amounts to
slander addressed directly against the testator himself conviction, 79
though, is not necessary. Except when:

1. unintentional;
2. on account of lack of discernment due to tender age or

mental incapacity

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Wills & Succession/ Atty Uribe (2) When the spouse has accused the testator of a
crime for which the law prescribes imprisonment of
(3) Upon judicial declaration of abandonment of the child in six years or more, and the accusation has been found
a case filed for the purpose; to be false;

(4) Upon final judgment of a competent court divesting the (3) When the spouse by fraud, violence, intimidation,
party concerned of parental authority; or or undue influence cause the testator to make a will or
to change one already made;
(5) Upon judicial declaration of absence or incapacity of
the person exercising parental authority. (327a) (4) When the spouse has given cause for legal
separation;
Art. 230. Parental authority is suspended upon conviction of the
parent or the person exercising the same of a crime which carries (5) When the spouse has given grounds for the loss of
with it the penalty of civil interdiction. The authority is automatically parental authority;
reinstated upon service of the penalty or upon pardon or amnesty of
the offender. (330a) (6) Unjustifiable refusal to support the children or the
other spouse. (756, 855, 674a)
Art. 231. The court in an action filed for the purpose in a related case
may also suspend parental authority if the parent or the person It is the fact of having given cause for the legal separation which is
exercising the same: the ground; in other words, it is necessary that the legal separation
be actually obtained.
(1) Treats the child with excessive harshness or cruelty;
Art. 55. A petition for legal separation may be filed on any of the
(2) Gives the child corrupting orders, counsel or example; following grounds:

(3) Compels the child to beg; or (1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child
(4) Subjects the child or allows him to be subjected to acts of the petitioner;
of lasciviousness.
(2) Physical violence or moral pressure to compel the
The grounds enumerated above are deemed to include cases which petitioner to change religious or political affiliation;
have resulted from culpable negligence of the parent or the person
exercising parental authority. (3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner, to
If the degree of seriousness so warrants, or the welfare of the child engage in prostitution, or connivance in such corruption or
so demands, the court shall deprive the guilty party of parental inducement;
authority or adopt such other measures as may be proper under the
circumstances. (4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
The suspension or deprivation may be revoked and the parental
authority revived in a case filed for the purpose or in the same (5) Drug addiction or habitual alcoholism of the
proceeding if the court finds that the cause therefor has ceased and respondent;
will not be repeated. (33a)
(6) Lesbianism or homosexuality of the respondent;
Art. 232. If the person exercising parental authority has subjected the
child or allowed him to be subjected to sexual abuse, such person (7) Contracting by the respondent of a subsequent
shall be permanently deprived by the court of such authority. (n) bigamous marriage, whether in the Philippines or abroad;

There are temporary loss of parental authority which causes (8) Sexual infidelity or perversion;
disinheritance but will the recovery of authority revoke the
disinheritance? No. the cause for disinheritance subsists even when (9) Attempt by the respondent against the life of the
parental authority is regained. The reason advanced is that the real petitioner; or
cause for disinheritance is not the loss of the parental authority, but
the fact of having committed something sufficient to occasion such (10) Abandonment of petitioner by respondent without
loss. The right to inherit is odious, because it involves the deprivation justifiable cause for more than one year.
of property; this fact, together with the fact that disinheritaqnce is an
exception to the rules of legitime justifies a strict construction. For purposes of this Article, the term "child" shall include a child by
nature or by adoption. (9a)
Attempt against the life does not require conviction of the offending
parent. But the reconciliation between the offending parent and the Art. 63. The decree of legal separation shall have the following
parent against whose life the attempt was made deprives the child of effects:
the right to disinherit the offender.
(1) The spouses shall be entitled to live separately from
Art. 921. The following shall be sufficient causes for each other, but the marriage bonds shall not be severed;
disinheriting a spouse:
(2) The absolute community or the conjugal partnership
(1) When the spouse has been convicted of an attempt shall be dissolved and liquidated but the offending spouse
against the life of the testator, his or her descendants, shall have no right to any share of the net profits earned by
or ascendants; the absolute community or the conjugal partnership, which
shall be forfeited in accordance with the provisions of
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80

Wills & Succession/ Atty Uribe A. In General

(3) The custody of the minor children shall be awarded to Art. 840. Institution of heir is an act by virtue of which a testator
the innocent spouse, subject to the provisions of Article designates in his will the person or persons who are to succeed
213 of this Code; and him in his property and transmissible rights and obligations. (n)

(4) The offending spouse shall be disqualified from The will of the testator is the supreme law which succession is
inheriting from the innocent spouse by intestate governed, thus, the beneficiaries under the will must be designated
succession. Moreover, provisions in favor of the offending with clearness so that there can be no doubt as to who are intended
spouse made in the will of the innocent spouse shall be by the testator.
revoked by operation of law. (106a)
Since the institution of heirs and the designation of legatees and
Art. 922. A subsequent reconciliation between the offender and devisees spring exclusively from the will of the testator, only the
the offended person deprives the latter of the right to disinherit, portion of the inheritance that is subject to the disposal of the testator
and renders ineffectual any disinheritance that may have been would be affected by such institution or designation. It cannot affect
made. (856) the portion known as the legitime.

General pardon is not sufficient. The pardon must expressly refer to Art. 785. The duration or efficacy of the designation of heirs,
the heir disinherited and specifically to the acts causing the devisees or legatees, or the determination of the portions which
disinheritance. Such pardon must be accepted by the heir. There they are to take, when referred to by name, cannot be left to the
must be a real reconciliation between the parties. discretion of a third person. (670a)

There are some grounds for disinheritance which are also causes for T: The matters mentioned in this article are testamentary in nature;
incapacity by reason of unworthiness. What then would be the effect they constitute expressions of the will or disposition of the testator.
of a subsequent reconciliation between the parties, if a disinheritance Hence, pursuant to Art. 784, it cannot be delegated.
has already been made on any of the grounds which are also causes
for unworthiness? B: The ff. constitute the essence of will making or the exercise of the
disposing power, and thus, non-delegable:
Same effect, the heir may inherit as a CH and intestate. Incapacity
by reason of unworthiness is merely an expression of the implied will 4. the designation of heirs, devisees, legatees;
of a person who has not expressed his intention in a will. If the 5. the duration or efficacy of such designation including such
express intention, manifested by the testator in a disinheriting clause
in a will, is rendered ineffective by a subsequent reconciliation, how things as conditions, terms, substitutions
can the implied intention be logically held to exist? 6. the determination of the portions they are to recieve

If a disinheritance has been made, and then reconciliation takes Art. 787. The testator may not make a testamentary disposition
place, it will be the same as if there had been no disinheritance. The in such manner that another person has to determine whether
disinheritance does not legally exist, and the rights established by or not it is to be operative. (n)
law in favor of the person provisionally disinherited recover their
supremacy over the express disposition of thetestator. Art. 841. A will shall be valid even though it should not contain
an institution of an heir, or such institution should not comprise
Disinheritance may be revoked by: the entire estate, and even though the person so instituted
1. reconciliation; should not accept the inheritance or should be incapacitated to
2. subsequent institution of the disinherited heir; succeed.
3. the nullity of the will containing the disinheritance, such as
when denied probate. The heir may be instituted to succeed to the whole or to an aliquot
part of the inheritance. The existence of the institution does not
Once revoked it cannot be renewed except for other causes depend upon the designation or name which the testator gives to his
subsequent to the revocation. Thus, after reconciliation a new testamentary disposition.
disinheritance can be based only on new grounds.
In such cases the testamentary dispositions made in
Art. 923. The children and descendants of the person accordance with law shall be complied with and the remainder
disinherited shall take his or her place and shall preserve the of the estate shall pass to the legal heirs. (764)
rights of compulsory heirs with respect to the legitime; but the
disinherited parent shall not have the usufruct or administration Art. 842. One who has no compulsory heirs may dispose by will
of the property which constitutes the legitime. (857) of all his estate or any part of it in favor of any person having
capacity to succeed.
The causes of disinheritance are personal to the disinherited heir; he
alone is at fault, and nobody else should suffer the effects of such The article pertains to the principle of freedom of distribution by will.
culpability. His children and ascendants therefore should not be The extent of his freedom of disposition depends upon the existence,
penalized for acts not imputable to them. knid, and number of compulsory heirs. When there are CH the law
limits this freedom to such extent that legitime is not impaired.
The article allows the children and descendants of the person Besides the civil law, special laws also restrict this freedom such as
disinherited to take his place and retain the rights of compulsory the Public Land Act which vests upon the heirs of the applicant or
heirs in respect to the legitime. grantee the ownership of land in such case that the latter dies. Thus,
The disinherited person can be represented only if he is a child or he does not have free disposal of the subject land.
descendant, a disinherited ascendant or spouse cannot be
represented. Right of representation applies. The body of the deceased testator will not pass under his will or
become part of the estate because it is not a property. But the
The representation should extend to everything that would have
passed to the disinherited heir by operation of law; this includes the 81
amount that pertains to him as intestate heir and not only that as
compulsory heir.

XVI. INSTITUTION OF HEIRS

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Wills & Succession/ Atty Uribe Art. 845. Every disposition in favor of an unknown person shall
be void, unless by some event or circumstance his identity
testator may be allowed to such extent for scientific or educational becomes certain. However, a disposition in favor of a definite
purposes. class or group of persons shall be valid. (750a)

One who has compulsory heirs may dispose of his estate Art. 786. The testator may entrust to a third person the
provided he does not contravene the provisions of this Code distribution of specific property or sums of money that he may
with regard to the legitime of said heirs. (763a) leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to
Art. 843. The testator shall designate the heir by his name and which such property or sums are to be given or applied. (671a)
surname, and when there are two persons having the same
names, he shall indicate some circumstance by which the T: the third person here does not make any disposition, but simply
instituted heir may be known. carries out details in the execution of the testamentary disposition
made by the testator himself in the will.
Even though the testator may have omitted the name of the heir,
should he designate him in such manner that there can be no B: for this article to take effect the testator must determine the ff:
doubt as to who has been instituted, the institution shall be
valid. (772) 5. the property or amount of money given and;
6. the class or cause to be benefited
Art. 844. An error in the name, surname, or circumstances of the
heir shall not vitiate the institution when it is possible, in any and the ff. may be delegated:
other manner, to know with certainty the person instituted.
3. designation of persons, institutions, or establishments
If among persons having the same names and surnames, there within the class or cause;
is a similarity of circumstances in such a way that, even with the
use of the other proof, the person instituted cannot be 4. the manner of distribution.
identified, none of them shall be an heir. (773a)
Art. 846. Heirs instituted without designation of shares shall
Art. 789. When there is an imperfect description, or when no inherit in equal parts. (765)
person or property exactly answers the description, mistakes
and omissions must be corrected, if the error appears from the Art. 848. If the testator should institute his brothers and sisters,
context of the will or from extrinsic evidence, excluding the oral and he has some of full blood and others of half blood, the
declarations of the testator as to his intention; and when an inheritance shall be distributed equally unless a different
uncertainty arises upon the face of the will, as to the application intention appears. (770a)
of any of its provisions, the testator's intention is to be
ascertained from the words of the will, taking into consideration Art. 847. When the testator institutes some heirs individually
the circumstances under which it was made, excluding such and others collectively as when he says, "I designate as my
oral declarations. (n) heirs A and B, and the children of C," those collectively
designated shall be considered as individually instituted, unless
T: The first part of this article pertains to patent or extrinsic ambiguity it clearly appears that the intention of the testator was
which appears upon the face of the instrument such as when the otherwise. (769a)
testator gives a devise or legacy to “SOME of the six children of his
cousin Juan” Art. 849. When the testator calls to the succession a person and
his children they are all deemed to have been instituted
The second part pertains to latent or intrinsic ambiguity which cannot simultaneously and not successively. (771)
be seen from a mere perusal or reading of the will but appears only
upon consideration of extrinsic circumstances, such as giving legacy Art. 850. The statement of a false cause for the institution of an
to “my cousin Pedro”, when I fact he has two cousins named Pedro. heir shall be considered as not written, unless it appears from
Thus. It occurs when: the will that the testator would not have made such institution if
he had known the falsity of such cause. (767a)
3. two or more persons or things answer the name or
description; Austria vs. Reyes

4. misdescription of the beneficiary or the gift On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of
First Instance of Rizal (Special Proceedings 2457) a petition for
Extrinsic evidence is admissible to show the situation of the testator probate, ante mortem, of her last will and testament. The probate
and all the relevant facts and circumstances surrounding him at the was opposed by the present petitioners Ruben Austria, Consuelo
time of making the will, for the purpose of explaining or resolving Austria-Benta and Lauro Austria Mozo, and still others who, like the
patent ambiguity. petitioner, are nephews and nieces of Basilia. This opposition was,
however, dismissed and the probate of the will allowed after due
B: method of resolving ambiguity, whether latent or patent is any hearing.
evidence admissible and relevant excluding the oral declarations of
testator as to his intention. The bulk of the estate of Basilia, admittedly, was destined under the
will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meñez,
Ratio for the exclusion: B: can a dead man refute a tale? Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had
been assumed and declared by Basilia as her own legally adopted
T: the testator whose lips have been sealed by death can no longer children.
deny or affirm the truth of what witnesses may say he declared, Finally, on November 5, 1959, the present petitioners filed in the
would create confusion and give rise to false claims. same proceedings a petition in intervention for partition alleging in
substance that they are the nearest of kin of Basilia, and that the five
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Wills & Succession/ Atty Uribe face of the will that the testator would not have made such institution
if he had known the falsity of the cause.
respondents Perfecto Cruz, et al., had not in fact been adopted by
the decedent in accordance with law, in effect rendering these The petitioners would have us imply, from the use of the terms,
respondents mere strangers to the decedent and without any right to "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana"
succeed as heirs. (legitime), that the impelling reason or cause for the institution of the
respondents was the testatrix's belief that under the law she could
In the meantime, the contending sides debated the matter of not do otherwise. If this were indeed what prompted the testatrix in
authenticity or lack of it of the several adoption papers produced and instituting the respondents, she did not make it known in her will.
presented by the respondents. On motion of the petitioners Ruben Surely if she was aware that succession to the legitime takes place
Austria, et al., these documents were referred to the National Bureau by operation of law, independent of her own wishes, she would not
of Investigation for examination and advice. N.B.I. report seems to have found it convenient to name her supposed compulsory heirs to
bear out the genuineness of the documents, but the petitioners, their legitimes. Her express adoption of the rules on legitimes should
evidently dissatisfied with the results, managed to obtain a very well indicate her complete agreement with that statutory
preliminary opinion from a Constabulary questioned-document scheme. But even this, like the petitioners' own proposition, is highly
examiner whose views undermine the authenticity of the said speculative of what was in the mind of the testatrix when she
documents. The petitioners Ruben Austria, et al., thus moved the executed her will. One fact prevails, however, and it is that the
lower court to refer the adoption papers to the Philippine decedent's will does not state in a specific or unequivocal manner
Constabulary for further study. The petitioners likewise located the cause for such institution of heirs. We cannot annul the same on
former personnel of the court which appeared to have granted the the basis of guesswork or uncertain implications.
questioned adoption, and obtained written depositions from two of
them denying any knowledge of the pertinent adoption proceedings. And even if we should accept the petitioners' theory that the
decedent instituted the respondents perfecto Cruz, et al. solely
The complaint in intervention filed in the lower court assails the because she believed that the law commanded her to do so, on the
legality of the tie which the respondent Perfecto Cruz and his false assumption that her adoption of these respondents was valid,
brothers and sisters claim to have with the decedent. The lower court still such institution must stand.
had, however, assumed, by its orders in question, that the validity or
invalidity of the adoption is not material nor decisive on the efficacy Article 850 of the Civil Code, quoted above, is a positive injunction to
of the institution of heirs; for, even if the adoption in question were ignore whatever false cause the testator may have written in his will
spurious, the respondents Perfecto Cruz, et al., will nevertheless for the institution of heirs. Such institution may be annulled only when
succeed not as compulsory heirs but as testamentary heirs instituted one is satisfied, after an examination of the will, that the testator
in Basilia's will. This ruling apparently finds support in article 842 of clearly would not have made the institution if he had known the
the Civil Code which reads: cause for it to be false. Now, would the late Basilia have caused the
revocation of the institution of heirs if she had known that she was
"One who has no compulsory heirs may dispose mistaken in treating these heirs as her legally adopted children? Or
of by will all his estate or any part of it in favor of would she have instituted them nonetheless?
any person having capacity to succeed.
The decedent's will, which alone should provide the answer, is mute
"One who has compulsory heirs may dispose of on this point or at best is vague and uncertain. The phrases, "mga
his estate provided he does not contravene the sapilitang tagapagmana" and "sapilitang mana," were borrowed from
provisions of this Code with regard to the the language of the law on succession and were used, respectively,
legitime of said heirs." to describe the class of heirs instituted and the abstract object of the
The petitioners nephews and niece, upon the other hand, insist that inheritance. They offer no absolute indication that the decedent
the entire estate should descend to them by intestacy by reason of would have willed her estate other than the way she did if she had
the intrinsic nullity of the institution of heirs embodied in the known that she was not bound by law to make allowance for
decedent's will. They have thus raised squarely the issue of whether legitimes. Her disposition of the free portion of her estate (libre
or not such institution of heirs would retain efficacy in the event there disposicion) which largely favored the respondent Perfecto Cruz, the
exists proof that the adoption of the same heirs by the decedent is latter's children, and the children of the respondent Benita Cruz,
false. shows a perceptible inclination on her part to give to the respondents
more than what she thought the law enjoined her to give to them.
The petitioners cite, as the controlling rule, article 850 of the Civil Compare this with the relatively small devise of land which the
Code which reads: decedent had left for her blood relatives, including the petitioners
Consuelo Austria-Benta and Lauro Mozo and the children of the
"The statement of a false cause for the petitioner Ruben Austria. Were we to exclude the respondents
institution of an heir shall be considered as not Perfecto Cruz, et al, from the inheritance, then the petitioners and the
written, unless it appears from the will that the other nephews and nieces would succeed to the bulk of the estate by
testator would not have made such institution if intestacy — a result which would subvert the clear wishes of the
he had known the falsity of such cause." decedent.
The tenor of the language used, the petitioners argue, gives rise to
the inference that the late Basilia was deceived into believing that Whatever doubts one entertains in his mind should be swept away
she was legally bound to bequeath one-half of her entire estate to by these explicit injunctions in the Civil Code: "The words of a will are
the respondents Perfecto Cruz, et al. as the latter's legitime. The to receive an interpretation which will give to every expression some
petitioners further contend that had the deceased known the effect, rather than one which will render any of the expressions
adoption to be spurious, she would not have instituted the inoperative; and of two modes of interpreting a will, that is to be
respondents at all — the basis of the institution being solely her preferred which will prevent intestacy." 1
belief that they were compulsory heirs. Proof therefore of the falsity
of the adoption would cause a nullity of the institution of heirs and the Testacy is favored and doubts are resolved on its side, especially
opening of the estate wide to intestacy. Did the lower court then where the will evinces an intention on the part of the testator to
abuse its discretion or act in violation of the rights of the parties in dispose of practically his whole estate, 2 as was done in this case.
barring the petitioners nephews and niece from registering their claim Moreover, so compelling is the principle that intestacy should be
even to properties adjudicated by the decedent in her will? avoided and the wishes of the testator allowed to prevail, that we
could even vary the language of the will for the purpose of giving it
Before the institution of heirs may be annulled under article 850 of effect. 3 A probate court has found, by final judgment, that the late
the Civil Code, the following requisites must concur: First, the cause Basilia Austria Vda. de Cruz was possessed of testamentary
for the institution of heirs must be stated in the will; second, the capacity and her last will executed free from falsification, fraud,
cause must be shown to be false; and third, it must appear from the
83
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Wills & Succession/ Atty Uribe the real properties to said heirs as well as the transfer of shares,
stocks, and dividends in different corporations, companies and
trickery or undue influence. In this situation, it becomes our duty to partnerships in the name of Maria Lizares to the heirs and legatees,
give full expression to her will. 4 and the closure of the testate proceedings of Maria Lizares. 7

At all events, the legality of the adoption of the respondents by the A year later or on November 23, 1973, Eustaquia Lizares died single
testatrix can be assailed only in a separate action brought for that without any descendant. 11 In due time, Rodolfo Lizares and
purpose, and cannot be the subject of a collateral attack. 5 Amelo Lizares were appointed joint administrators of Eustaquia's
intestate estate.
Art. 851. If the testator has instituted only one heir, and the
institution is limited to an aliquot part of the inheritance, legal On the strength of the testamentary provisions contained in
succession takes place with respect to the remainder of the paragraphs 10 and 11 of the will of Maria Lizares, which were
estate. allegedly in the nature of a simple substitution, Celsa Vda. de
Kilayko, Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto
The same rule applies if the testator has instituted several heirs, (hereinafter collectively referred to as Celsa L. Vda. de Kilayko, et
each being limited to an aliquot part, and all the parts do not al.) filed a motion in Special Proceedings No. 8452 to reopen once
cover the whole inheritance. (n) again the testate estate proceedings of Maria Lizares. They prayed
among others that a substitute administrator be appointed; that the
Art. 852. If it was the intention of the testator that the instituted order dated January 8, 1971 be reconsidered and amended by
heirs should become sole heirs to the whole estate, or the declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of
whole free portion, as the case may be, and each of them has Hda. Matab-ang, both of which form an aggregate area of 33
been instituted to an aliquot part of the inheritance and their hectares; that the Register of Deeds of Negros Occidental, after such
aliquot parts together do not cover the whole inheritance, or the amendment, be ordered to register at the back of their respective
whole free portion, each part shall be increased proportionally. certificates of title, the order of probate and a "declaration" that
(n) movants are the heirs of said properties, and correspondingly issue
new certificates of title in their names. 12
Art. 853. If each of the instituted heirs has been given an aliquot
part of the inheritance, and the parts together exceed the whole Two (2) sets of intestate heirs of the deceased Eustaquia Lizares
inheritance, or the whole free portion, as the case may be, each namely: Socorro L. Vda. de Escario, Rodolfo Lizares, Mario Lizares,
part shall be reduced proportionally. (n) Lucrecia Gustilo, and Aurora Lizares Wagner opposed the aforesaid
motion. They alleged that the court had no more jurisdiction to
Art. 856. A voluntary heir who dies before the testator transmits reopen the testate estate proceedings of Maria Lizares as the order
nothing to his heirs. of closure had long become final and that the testamentary
provisions sought to be enforced are null and void. 13
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the On April 13, 1977, the joint administrators filed before this Court a
inheritance, shall transmit no right to his own heirs except in petition for certiorari, prohibition and/or mandamus with prayer for a
cases expressly provided for in this Code. (766a) writ of preliminary injunction. It was docketed as G.R. No. L-45965.
Petitioners contend that the lower court had no jurisdiction over Civil
B. Kinds of Institution Case No. 11639 as it involves the interpretation of the will of Maria
Lizares, its implementation and/or the adjudication of her properties.
Art. 777. The rights to the succession are transmitted from the They assert that the matter had been settled in Special Proceedings
moment of the death of the decedent. (657a) No. 8452 which had become final and unappealable long before the
complaint in Civil Case No. 11639 was filed, and therefore, the cause
Art. 871. The institution of an heir may be made conditionally, or of action in the latter case was barred by the principle of res judicata.
for a certain purpose or cause. (790a) They aver that the claim of Celsa, Encarnacion and Remedios,
sisters of Maria Lizares, over the properties left by their niece
Viuda de Kilayko vs. Tengco Eustaquia and which the latter had inherited by will from Maria
Lizares, was groundless because paragraphs 10 and 11 of Maria's
These consolidated cases seek to annul the orders 1 dated will on which Celsa L. Vda. de Kilayko, et al. base their claim,
September 20, 1978, January 7, 1977 and January 31, 1977 of the conceived of a fideicommissary substitution of heirs. Petitioners
then Court of First Instance of Negros Occidental, Branch IV, contend that said provisions of the will are not valid because under
respectively, cancelling the notice of lis pendens filed by Celsa L. Article 863 of the Civil Code, they constitute an invalid
Vda. de Kilayko, et al. with the Register of Deeds of Negros fideicommissary substitution of heirs.
Occidental, denying the motion for reconsideration of the order dated
September 20, 1976 filed by Celsa L. Vda. de Kilay ko, et al., and The petition in G.R. No. L-45965 is impressed with merit.
holding in abeyance the resolution of defendants' motion to dismiss.
In testate succession, there can be no valid partition among the heirs
On January 28, 1968, Maria Lizares y Alunan died without any issue until after the will has been probated. 30 The law enjoins the
leaving said "testamento" in the possession and custody of her probate of a will and the public requires it, because unless a will is
niece, Eustaquia Lizares. 3 On February 6, 1968, Eustaquia filed a probated and notice thereof given to the whole world, the right of a
petition for the settlement of the testate estate of Maria Lizares y person to dispose of his property by will may be rendered nugatory.
Alunan, before the Court of First Instance of Negros Occidental, 31 The authentication of a will decides no other question than such
Branch IV, docketed as Special Proceedings No. 8452. 4 as touch upon the capacity of the testator and the compliance with
On July 10, 1968, Eustaquia filed a project of partition 6 which was those requirements or solemnities which the law prescribes for the
granted by the probate court in an order dated January 8, 1971. validity of a will. 32
Simultaneously, said court declared the heirs, devisees, legatees The probate court, in the exercise of its jurisdiction to distribute the
and usufructuaries mentioned in the project of partition as the only estate, has the power to determine the proportion or parts to which
heirs, devisees, legatees and usufructuaries of the estate; each distributee is entitled . . . 37 A project of partition is merely a
adjudicated to them the properties respectively assigned to each and proposal for the distribution of the hereditary estate which the court
every one of them, and ordered the Register of Deeds of Negros may accept or reject. It is the court that makes that distribution of the
Occidental and Bacolod City to effect the corresponding transfer of estate and determines the persons entitled thereto. 38

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testate estate of Maria Lizares, the executrix, Eustaquia Lizares

84

Wills & Succession/ Atty Uribe substitution under Art. 859 of the Civil Code but it shall be effective
only if the first heir dies before the testator. 47 In this case, the
submitted on January 8, 1971, a project of partition in which the instituted heir, Eustaquia, survived the testatrix, Maria Lizares.
parcels of land, subject matters of the complaint for reconveyance, Hence, there can be no substitution of heirs for, upon Maria Lizares
were included as property of the estate and assigned exclusively to death, the properties involved unconditionally devolved upon
Eustaquia as a devisee of Maria Lizares. In accordance with said Eustaquia. Under the circumstances, the sisters of Maria Lizares
project of partition which was approved by the probate court, could only inherit the estate of Eustaquia by operation of the law of
Encarnacion Lizares Vda. de Panlilio, Remedios Lizares Vda. de intestacy
Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and
Eustaquia Lizares executed an Agreement of Partition and With respect to the cancellation of the notice of lis pendens on the
Subdivision on November 28, 1972, whereby they agreed to properties involved, there is no merit in the contention of Celsa L.
terminate their co-ownership over Lots Nos. 550, 514, 553, 1287-C Vda. de Kilay ko, et al., that the lower court acted contrary to law
of SWO-7446 and 552 covered by Transfer Certificates of Title Nos. and/or gravely abused its discretion in cancelling the notice of lis
T-65004, T-65005, T-65006, T-65007 and T-65008. These facts pendens. The cancellation of such a precautionary notice, being a
taken altogether show that the Lizares sisters recognized the decree mere incident in an action, may be ordered by the court having
of partition sanctioned by the probate court and in fact reaped the jurisdiction over it at any given time. 48 Under Sec. 24, Rule 14 of
fruits thereof. the Rules of Court, a notice of lis pendens may be cancelled "after
proper showing that the notice is for the purpose of molesting the
Hence, they are now precluded from attacking the validity of the adverse party, or that it is not necessary to protect the rights of the
partition or any part of it in the guise of a complaint for reconveyance. party who caused it to be recorded" 49 In this case, the lower court
A party cannot, in law and in good conscience be allowed to reap the ordered the cancellation of said notice on the principal reason that
fruits of a partition, agreement or judgment and repudiate what does the administrators of the properties involved are subject to the
not suit him. 39 Thus, where a piece of land has been included in a supervision of the court and the said properties are under custodia
partition and there is no allegation that the inclusion was effected legis. Therefore, such notice was not necessary to protect the rights
through improper means or without petitioner's knowledge, the of Celsa L. Vda. de Kilay ko, et al. More so in this case where it
partition barred any further litigation on said title and operated to turned out that their claim to the properties left by Eustaquia is
bring the property under the control and jurisdiction of the court for its without any legal basis.
proper disposition according to the tenor of the partition. 40 The
question of private respondents' title over the lots in question has Art. 872. The testator cannot impose any charge, condition, or
been concluded by the partition and became a closed matter. substitution whatsoever upon the legitimes prescribed in this
A final decree of distribution of the estate of a deceased person vests Code. Should he do so, the same shall be considered as not
the title to the land of the estate in the distributees. If the decree is imposed. (813a)
erroneous, it should be corrected by opportune appeal, for once it
becomes final, its binding effect is like any other judgment in rem, Art. 873. Impossible conditions and those contrary to law or
unless properly set aside for lack of jurisdiction or fraud. Where the good customs shall be considered as not imposed and shall in
court has validly issued a decree of distribution and the same has no manner prejudice the heir, even if the testator should
become final, the validity or invalidity of the project of partition otherwise provide. (792a)
becomes irrelevant. 41
Art. 874. An absolute condition not to contract a first or
It is a fundamental concept in the origin of every jural system, a subsequent marriage shall be considered as not written unless
principle of public policy, that at the risk of occasional errors, such condition has been imposed on the widow or widower by
judgments of courts should become final at some definite time fixed the deceased spouse, or by the latter's ascendants or
by law, interest rei publicae ut finis sit litum. "The very object of which descendants.
the courts were constituted was to put an end to controversies." 42
The only instance where a party interested in a probate proceeding Nevertheless, the right of usufruct, or an allowance or some
may have a final liquidation set aside is when he is left out by reason personal prestation may be devised or bequeathed to any
of circumstances beyond his control or through mistake or person for the time during which he or she should remain
inadvertence not imputable to negligence. Even then, the better unmarried or in widowhood. (793a)
practice to secure relief is the opening of the same by proper motion
within the reglementary period, instead of an independent action, the Art. 1183. Impossible conditions, those contrary to good
effect of which if successful, would be for another court or judge to customs or public policy and those prohibited by law shall
throw out a decision or order already final and executed and annul the obligation which depends upon them. If the obligation
reshuffle properties long ago distributed and disposed of. 43 is divisible, that part thereof which is not affected by the
impossible or unlawful condition shall be valid.
The fundamental principle upon which the doctrine of res judicata
rests is that parties ought not to be permitted to litigate the same The condition not to do an impossible thing shall be considered
issue more than once, that, when a right or fact has been judicially as not having been agreed upon. (1116a)
tried and determined by a court of competent jurisdiction, or an
opportunity for such trial has been given, the judgment of the court, Art. 875. Any disposition made upon the condition that the heir
so long as it remains unreversed, should be conclusive upon the shall make some provision in his will in favor of the testator or
parties and those in privity with then in law or estate. 44 of any other person shall be void. (794a)
Granting that res judicata has not barred the institution of Civil Case
No. 11639, the contention of Celsa L. Vda. de Kilay ko et al. that they Art. 876. Any purely potestative condition imposed upon an heir
are conditional substitute heirs of Eustaquia in the testate estate of must be fulfilled by him as soon as he learns of the testator's
Maria Lizares 46 is not meritorious. While the allegation of the joint death.
administrators that paragraphs 10 and 11 of Maria Lizares' last will
and testament conceives of a fideicommissary substitution under This rule shall not apply when the condition, already complied
Article 863 of the Civil Code is also baseless as said paragraphs do with, cannot be fulfilled again. (795a)
not impose upon Eustaquia a clear obligation to preserve the estate
in favor of Celsa L. Vda. de Kilay ko, et al., neither may said 85
paragraphs be considered as providing for a vulgar or simple
substitution.

It should be remembered that when a testator merely names an heir
and provides that if such heir should die a second heir also
designated shall succeed, there is no fideicommissary substitution.
The substitution should then be construed as a vulgar or simple

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Wills & Succession/ Atty Uribe condition is fulfilled, or until it becomes certain that it cannot be
fulfilled, or until the arrival of the term.
Art. 877. If the condition is casual or mixed, it shall be sufficient
if it happens or be fulfilled at any time before or after the death The same shall be done if the heir does not give the security
of the testator, unless he has provided otherwise. required in the preceding article. (801a)

Should it have existed or should it have been fulfilled at the time Modal Institutions
the will was executed and the testator was unaware thereof, it
shall be deemed as complied with. Art. 882. The statement of the object of the institution, or the
application of the property left by the testator, or the charge
If he had knowledge thereof, the condition shall be considered imposed by him, shall not be considered as a condition unless
fulfilled only when it is of such a nature that it can no longer it appears that such was his intention.
exist or be complied with again. (796)
That which has been left in this manner may be claimed at once
Art. 1034. In order to judge the capacity of the heir, devisee or provided that the instituted heir or his heirs give security for
legatee, his qualification at the time of the death of the decedent compliance with the wishes of the testator and for the return of
shall be the criterion. anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation. (797a)
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be
necessary to wait until final judgment is rendered, and in the Art. 883. When without the fault of the heir, an institution
case falling under No. 4, the expiration of the month allowed for referred to in the preceding article cannot take effect in the
the report. exact manner stated by the testator, it shall be complied with in
a manner most analogous to and in conformity with his wishes.
If the institution, devise or legacy should be conditional, the
time of the compliance with the condition shall also be If the person interested in the condition should prevent its
considered. (758a) fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with. (798a)
Art. 879. If the potestative condition imposed upon the heir is
negative, or consists in not doing or not giving something, he XVII. SUBSTITUTION OF HEIRS
shall comply by giving a security that he will not do or give that
which has been prohibited by the testator, and that in case of Art. 857. Substitution is the appointment of another heir so that
contravention he will return whatever he may have received, he may enter into the inheritance in default of the heir originally
together with its fruits and interests. (800a) instituted. (n)

Art. 880. If the heir be instituted under a suspensive condition or Art. 858. Substitution of heirs may be:
term, the estate shall be placed under administration until the
condition is fulfilled, or until it becomes certain that it cannot be (1) Simple or common;
fulfilled, or until the arrival of the term.
(2) Brief or compendious;
The same shall be done if the heir does not give the security
required in the preceding article. (801a) (3) Reciprocal; or

Art. 881. The appointment of the administrator of the estate (4) Fideicommissary. (n)
mentioned in the preceding article, as well as the manner of the
administration and the rights and obligations of the Art. 859. The testator may designate one or more persons to
administrator shall be governed by the Rules of Court. (804a) substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish, or should be
Art. 884. Conditions imposed by the testator upon the heirs incapacitated to accept the inheritance.
shall be governed by the rules established for conditional
obligations in all matters not provided for by this Section. (791a) A simple substitution, without a statement of the cases to which
it refers, shall comprise the three mentioned in the preceding
Institution with a Term paragraph, unless the testator has otherwise provided. (774)

Art. 885. The designation of the day or time when the effects of Art. 860. Two or more persons may be substituted for one; and
the institution of an heir shall commence or cease shall be valid. one person for two or more heirs. (778)

In both cases, the legal heir shall be considered as called to the Art. 861. If heirs instituted in unequal shares should be
succession until the arrival of the period or its expiration. But in reciprocally substituted, the substitute shall acquire the share
the first case he shall not enter into possession of the property of the heir who dies, renounces, or is incapacitated, unless it
until after having given sufficient security, with the intervention clearly appears that the intention of the testator was otherwise.
of the instituted heir. (805) If there are more than one substitute, they shall have the same
share in the substitution as in the institution. (779a)
Art. 878. A disposition with a suspensive term does not prevent
the instituted heir from acquiring his rights and transmitting Art. 862. The substitute shall be subject to the same charges
them to his heirs even before the arrival of the term. (799a) and conditions imposed upon the instituted heir, unless and
testator has expressly provided the contrary, or the charges or
Art. 880. If the heir be instituted under a suspensive condition or
term, the estate shall be placed under administration until the 86

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Wills & Succession/ Atty Uribe The task is not trouble-free because the widow Marcelle is a French
who lives in Paris, while the companion Wanda is an Austrian who
conditions are personally applicable only to the heir instituted. lives in Spain. Moreover, the testator provided for substitutions.
(780)
Jose Eugenio Ramirez, a Filipino national, died in Spain on
Art. 863. A fideicommissary substitution by virtue of which the December 11, 1964, with only his widow as compulsory heir. His will
fiduciary or first heir instituted is entrusted with the obligation was admitted to probate by the Court of First Instance of Manila,
to preserve and to transmit to a second heir the whole or part of Branch X, on July 27, 1965. Maria Luisa Palacios was appointed
the inheritance, shall be valid and shall take effect, provided administratrix of the estate. On June 23, 1966, the administratrix
such substitution does not go beyond one degree from the heir submitted a project of partition as follows: the property of the
originally instituted, and provided further, that the fiduciary or deceased is to be divided into two parts. One part shall go to the
first heir and the second heir are living at the time of the death widow "en pleno dominio" in satisfaction of her legitime; the other
of the testator. (781a) part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda
propriedad." Furthermore, one third (1/3) of the free portion is
Art. 864. A fideicommissary substitution can never burden the charged with the widow's usufruct and the remaining two-third (2/3)
legitime. (782a) with a usufruct in favor of Wanda.

Art. 865. Every fideicommissary substitution must be expressly Jorge and Roberto opposed the project of partition on the grounds:
made in order that it may be valid. (a) that the provisions for vulgar substitution in favor of Wanda de
Wrobleski with respect to the widow's usufruct and in favor of Juan
The fiduciary shall be obliged to deliver the inheritance to the Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's
second heir, without other deductions than those which arise usufruct are invalid because of the first heirs (Marcelle and Wanda)
from legitimate expenses, credits and improvements, save in survived the testator; (b) that the provisions for fideicommissary
the case where the testator has provided otherwise. (783) substitutions are also invalid because the first heirs are not related to
the second heirs or substitutes within the first degree, as provided in
Art. 866. The second heir shall acquire a right to the succession Article 863 of the Civil Code; (c) that the grant of a usufruct over real
from the time of the testator's death, even though he should die property in the Philippines in favor of Wanda de Wrobleski, who is an
before the fiduciary. The right of the second heir shall pass to alien, violates Section 5, Article XIII of the Philippine Constitution;
his heirs. (784) and that (d) the proposed partition of the testator's interest in the
Santa Cruz (Escolta) Building between the widow Marcelle, and the
Art. 867. The following shall not take effect: appellants, violates the testator's express will to give this property to
them. Nonetheless, the lower court approved the project of partition
(1) Fideicommissary substitutions which are not made in its order dated May 3, 1967. It is this order which Jorge and
in an express manner, either by giving them this name, Roberto have appealed to this Court.
or imposing upon the fiduciary the absolute obligation
to deliver the property to a second heir; The widow's legitime.
It is the one-third usufruct over the free portion which the appellants
(2) Provisions which contain a perpetual prohibition to question and justifiably so. It appears that the court a quo approved
alienate, and even a temporary one, beyond the limit the usufruct in favor of Marcelle because the testament provides for
fixed in article 863; a usufruct in her favor of one-third of the estate. The court a quo
erred for Marcelle who is entitled to one-half of the estate "en pleno
(3) Those which impose upon the heir the charge of dominio" as her legitime and which is more than what she is given
paying to various persons successively, beyond the under the will is not entitled to have any additional share in the
limit prescribed in article 863, a certain income or estate. To give Marcelle more than her legitime will run counter to the
pension; testator's intention for as stated above his dispositions even impaired
her legitime and tended to favor Wanda.
(4) Those which leave to a person the whole part of the The substitutions.
hereditary property in order that he may apply or
invest the same according to secret instructions It may be useful to recall that "Substitution is the appointment of
communicated to him by the testator. (785a) another heir so that he may enter into the inheritance in default of the
heir originally instituted." (Art. 857, Civil Code.) And that there are
Art. 868. The nullity of the fideicommissary substitution does several kinds of substitutions, namely: simple or common, brief or
not prejudice the validity of the institution of the heirs first compendious, reciprocal, and fideicommissary. (Art. 858, Civil Code.)
designated; the fideicommissary clause shall simply be According to Tolentino, "Although the Code enumerates four classes,
considered as not written. (786) there are really only two principal classes of substitutions: the simple
and the fideicommissary. The others are merely variations of these
Art. 869. A provision whereby the testator leaves to a person the two." (III Civil Code, p. 185 [1973]).
whole or part of the inheritance, and to another the usufruct,
shall be valid. If he gives the usufruct to various persons, not The simple or vulgar is that provided in Art. 859 of the Civil Code
simultaneously, but successively, the provisions of Article 863 which reads:
shall apply. (787a)
"ART. 859. The testator may designate one or
Palacios vs. Ramirez
more persons to substitute the heir or heirs instituted in
The main issue in this appeal is the manner of partitioning the testate
estate of Jose Eugenio Ramirez among the principal beneficiaries, case such heir or heirs should die before him, or should
namely: his widow Marcelle Demoron de Ramirez; his two
grandnephews Roberto and Jorge Ramirez; and his companion not wish, or should be incapacitated to accept the
Wanda de Wrobleski.
inheritance.
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"A simple substitution, without a statement of the cases to
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
provided."

The fideicommissary substitution is described in the Civil Code as
follows:

87

Wills & Succession/ Atty Uribe

"ART. 863. A fideicommissary substitution by

virtue of which the fiduciary or first heir instituted is Action for partition commenced by the spouses Consolacion
Florentino and Francisco Crisologo against Manuel Singson in
entrusted with the obligation to preserve and to transmit to connection with a residential lot located at Plaridel St., Vigan, Ilocos
Sur, with an area of approximately 193 square meters, and the
a second heir the whole or part of inheritance, shall be improvements existing thereon, covered by Tax No. 10765-C. Their
complaint alleged that Singson owned one half proindiviso of said
valid and shall take effect, provided such substitution does property and that Consolacion Florentino owned the other half by
virtue of the provisions of the duly probated last will of Doña Leona
not go beyond one degree from the heir originally Singson, the original owner, and the project of partition submitted to,
and approved by the Court of First Instance of Ilocos Sur in Special
instituted, and provided further that the fiduciary or first heir Proceeding No. 453; that plaintiffs had made demands for the
partition of said property, but defendant refused to accede thereto,
and the second heir are living at time of the death of the thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere
testator." usufructuary of, and not owner of one half proindiviso of the property
in question, and that, therefore, she was not entitled to demand
It will be noted that the testator provided for a vulgar substitution in partition thereof.
respect of the legacies of Roberto and Jorge Ramirez, the
appellants, It is admitted that Doña Leona Singson, who died single on January
The appellants also question the "sustitucion vulgar y fideicomisaria" 13, 1948, was the owner of the property in question at the time of her
in connection with Wanda's usufruct over two-thirds of the estate in death. On July 31, 1951 she executed her last will which was
favor of Juan Pablo Jankowski and Horace V. Ramirez. admitted to probate in Special Proceeding No. 453 of the lower court
whose decision was affirmed by the Court of Appeals in G. R. No.
They allege that the substitution in its vulgar aspect is void because 3605-R. At the time of the execution of the will her nearest living
Wanda survived the testator or stated differently because she did not relatives were her brothers Evaristo, Manuel and Dionisio Singson,
predecease the testator. But dying before the testator is not the only and her nieces Rosario, Emilia and Trinidad, and her grandniece
case for vulgar substitution for it also includes refusal or incapacity to Consolacion, all surnamed Florentino.
accept the inheritance as provided in Art. 859 of the Civil Code,
supra. Hence, the vulgar substitution is valid. The issue to be decided is whether the testamentary disposition
As regards the substitution in its fideicommissary aspect, the above-quoted provided for what is called sustitución vulgar or for a
appellants are correct in their claim that it is void for the following sustitución fideicomisaria. This issue is, we believe, controlled by the
reasons: pertinent provisions of the Civil Code in force in the Philippines prior
to the effectivity of the New Civil Code, in view of the fact that the
(a) The substitutes (Juan Pablo Jankowski and Horace V. testatrix died on January 13, 1948. They are the following:
Ramirez) are not related to Wanda, the heir originally instituted. Art.
863 of the Civil Code validates a fideicommissary substitution "ART. 774. The testator may designate one or more persons to
"provided such substitution does not go beyond one degree from the substitute the heir or heirs instituted in case such heir or heirs
heir originally instituted." should die before him, or should not wish or should be unable to
"Scaevola, Maura, and Traviesas construe 'degree' as accept the inheritance.
designation, substitution, or transmission. The Supreme "A simple substitution, without a statement of the cases to which it
Court of Spain has decidedly adopted this construction. is to apply, shall include the three mentioned in the next preceding
From this point of view, there can be only one transmission paragraph, unless the testator has otherwise provided."
or substitution, and the substitute need not be related to
the first heir. Manresa, Morell, and Sanchez Roman, "ART. 781. Fidei-comissary substitutions by virtue of which the
however, construe the word 'degree' as generation, and heir is charged to preserve and transmit to a third person the
the present Code has obviously followed this whole or part of the inheritance shall be valid and effective,
interpretation, by providing that the substitution shall not go provided they do not go beyond the second degree, or that they
beyond one degree 'from the heir originally instituted.' The are made in favor of persons living at the time of the death of the
Code thus clearly indicates that the second heir must be testator."
related to and be one generation from the first heir.
"ART. 785. The following shall be inoperative:
"From this, it follows that the fideicommissary can only be 1. Fiduciary substitutions not made expressly, either by giving
either a child or a parent of the first heir. These are the them this name or by imposing upon the fiduciary the
only relatives who are one generation or degree from the absolute obligation of delivering the property to a second
fiduciary." (Op. cit., pp. 193-194.). heir." * * *.

(b) There is no absolute duty imposed on Wanda to transmit In accordance with the first legal provision quoted above, the testator
the usufruct to the substitutes as required by Arts. 865 and 867 of the may not only designate the heirs who will succeed him upon his
Civil Code. In fact, the appellee admits "that the testator contradicts death, but also provide for substitutes in the event that said heirs do
the establishment of a fideicommissary substitution when he permits not accept or are in no position to accept the inheritance or legacies,
the properties subject of the usufruct to be sold upon mutual or die ahead of him.
agreement of the usufructuaries and the naked owners." (Brief, p. The testator may also bequeath his properties to a particular person
26). with the obligation, on the part of the latter, to deliver the same to
another person, totally or partially, upon the occurrence of a
The usufruct of Wanda. particular event.

The court a quo upheld the validity of the usufruct given to Wanda on It is clear that the particular testamentary clause under consideration
the ground that the Constitution covers not only succession by provides for a substitution of the heir named therein in this manner:
operation of law but also testamentary succession. We are of the that upon the death of Consolacion Florentino-whether this occurs
opinion that the Constitutional provision which enables aliens to before or after that of the testatrix-the property bequeathed to her
acquire private lands does not extend to testamentary succession for shall be delivered ("se dará") or shall belong in equal parts to the
otherwise the prohibition will be for naught and meaningless. Any testatrix's three brothers, Evaristo, Manuel and Dionisio, or their
alien would be able to circumvent the prohibition by paying money to forced heirs, should anyone of them the ahead of Consolacion
a Philippine landowner in exchange for a devise of a piece of land. Florentino. If this clause created what is known as sustitución vulgar,

This opinion notwithstanding, We uphold the usufruct in favor of 88
Wanda because a usufruct, albeit a real right, does not vest title to
the land in the usufructuary and it is the vesting of title to land in
favor of aliens which is proscribed by the Constitution.

Crisologo vs. Singson

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Wills & Succession/ Atty Uribe Art. 929. If the testator, heir, or legatee owns only a part of, or an
interest in the thing bequeathed, the legacy or devise shall be
the necessary result would be that Consolacion Florentino, upon the understood limited to such part or interest, unless the testator
death of the testatrix, became the owner of one undivided half of the expressly declares that he gives the thing in its entirety. (864a)
property, but if it provided for a sustitución fideicomisaria, she would
have acquired nothing more than usufructuary rights over the same Art. 930. The legacy or devise of a thing belonging to another
half. In the former case, she would undoubtedly be entitled to person is void, if the testator erroneously believed that the thing
partition, but not in the latter. As Manresa says, if the fiduciary did not pertained to him. But if the thing bequeathed, though not
acquire full ownership of the property bequeathed, by will, but mere belonging to the testator when he made the will, afterwards
usufructuary rights thereon until the time came for him to deliver said becomes his, by whatever title, the disposition shall take effect.
property to the fideicomisario, it is obvious that the nude ownership (862a)
over the property, upon the death of the testatrix, passed to and was
acquired by another person, and that person cannot be other than Art. 931. If the testator orders that a thing belonging to another
the fideicomisarrio. (6 Manreza, p. 145) be acquired in order that it be given to a legatee or devisee, the
It seems to be of the essence of a fideicommissary substitution that heir upon whom the obligation is imposed or the estate must
an obligation be clearly imposed upon the first heir to preserve and acquire it and give the same to the legatee or devisee; but if the
transmit to another the whole or part of the estate bequeathed to owner of the thing refuses to alienate the same, or demands an
him, upon his death or upon the happening of a particular event. For excessive price therefor, the heir or the estate shall only be
this reason Art. 785 of the old Civil Code provides that a obliged to give the just value of the thing. (861a)
fideicommissary substitution shall have no effect unless it is made
expressly ("de una manera expresa") either by giving it such name, Art. 932. The legacy or devise of a thing which at the time of the
or by imposing upon the first heir the absolute obligation ("obligación execution of the will already belonged to the legatee or devisee
terminante") to deliver the inheritance to a substitute or second heir. shall be ineffective, even though another person may have
some interest therein.
A careful perusal of the testamentary clause under consideration
shows that the substitution of heirs provided for therein is not If the testator expressly orders that the thing be freed from such
expressly made of the fideicommissary kind, nor does it contain a interest or encumbrance, the legacy or devise shall be valid to
clear statement to the effect that appellee, during her lifetime, shall that extent. (866a)
only enjoy usufructuary rights over the property bequeathed to her,
naked ownership thereof being vested in the brothers of the testatrix. Art. 933. If the thing bequeathed belonged to the legatee or
As already stated, it merely provides that upon appellee's death- devisee at the time of the execution of the will, the legacy or
whether this happens before or after that of the testatrix-her share devise shall be without effect, even though it may have
shall belong to the brothers of the testatrix. subsequently alienated by him.
In the light of the foregoing, we believe, and so hold, that the last will
of the deceased Dña. Leona Singson established a mere sustitución If the legatee or devisee acquires it gratuitously after such time,
vulgar, the substitution of Consolacion Florentino by the brothers of he can claim nothing by virtue of the legacy or devise; but if it
the testatrix: to be effective or to take place upon the death of the has been acquired by onerous title he can demand
former, whether it happens before or after that of the testatrix. reimbursement from the heir or the estate. (878a)
In view of the foregoing, the appealed judgment is affirmed, with
costs. Art. 934. If the testator should bequeath or devise something
pledged or mortgaged to secure a recoverable debt before the
Art. 870. The dispositions of the testator declaring all or part of execution of the will, the estate is obliged to pay the debt,
the estate inalienable for more than twenty years are void. (n) unless the contrary intention appears.

XVII. LEGACIES AND DEVISEES The same rule applies when the thing is pledged or mortgaged
after the execution of the will.
Art. 924. All things and rights which are within the commerce of
man be bequeathed or devised. (865a) Any other charge, perpetual or temporary, with which the thing
bequeathed is burdened, passes with it to the legatee or
Art. 925. A testator may charge with legacies and devises not devisee. (867a)
only his compulsory heirs but also the legatees and devisees.
Art. 935. The legacy of a credit against a third person or of the
The latter shall be liable for the charge only to the extent of the remission or release of a debt of the legatee shall be effective
value of the legacy or the devise received by them. The only as regards that part of the credit or debt existing at the
compulsory heirs shall not be liable for the charge beyond the time of the death of the testator.
amount of the free portion given them. (858a)
In the first case, the estate shall comply with the legacy by
Art. 926. When the testator charges one of the heirs with a assigning to the legatee all rights of action it may have against
legacy or devise, he alone shall be bound. the debtor. In the second case, by giving the legatee an
acquittance, should he request one.
Should he not charge anyone in particular, all shall be liable in
the same proportion in which they may inherit. (859) In both cases, the legacy shall comprise all interests on the
credit or debt which may be due the testator at the time of his
Art. 927. If two or more heirs take possession of the estate, they death. (870a)
shall be solidarily liable for the loss or destruction of a thing
devised or bequeathed, even though only one of them should Art. 936. The legacy referred to in the preceding article shall
have been negligent. (n) lapse if the testator, after having made it, should bring an action
against the debtor for the payment of his debt, even if such
Art. 928. The heir who is bound to deliver the legacy or devise payment should not have been effected at the time of his death.
shall be liable in case of eviction, if the thing is indeterminate
and is indicated only by its kind. (860) 89

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Wills & Succession/ Atty Uribe If the testator has not fixed the amount of such legacies, it shall
be fixed in accordance with the social standing and the
The legacy to the debtor of the thing pledged by him is circumstances of the legatee and the value of the estate.
understood to discharge only the right of pledge. (871)
If the testator or during his lifetime used to give the legatee a
Art. 937. A generic legacy of release or remission of debts certain sum of money or other things by way of support, the
comprises those existing at the time of the execution of the will, same amount shall be deemed bequeathed, unless it be
but not subsequent ones. (872) markedly disproportionate to the value of the estate. (879a)

Art. 938. A legacy or devise made to a creditor shall not be Art. 945. If a periodical pension, or a certain annual, monthly, or
applied to his credit, unless the testator so expressly declares. weekly amount is bequeathed, the legatee may petition the
court for the first installment upon the death of the testator, and
In the latter case, the creditor shall have the right to collect the for the following ones which shall be due at the beginning of
excess, if any, of the credit or of the legacy or devise. (837a) each period; such payment shall not be returned, even though
the legatee should die before the expiration of the period which
Art. 939. If the testator orders the payment of what he believes has commenced. (880a)
he owes but does not in fact owe, the disposition shall be
considered as not written. If as regards a specified debt more Art. 946. If the thing bequeathed should be subject to a usufruct,
than the amount thereof is ordered paid, the excess is not due, the legatee or devisee shall respect such right until it is legally
unless a contrary intention appears. extinguished. (868a)

The foregoing provisions are without prejudice to the fulfillment Art. 947. The legatee or devisee acquires a right to the pure and
of natural obligations. (n) simple legacies or devises from the death of the testator, and
transmits it to his heirs. (881a)
Art. 940. In alternative legacies or devises, the choice is
presumed to be left to the heir upon whom the obligation to give Art. 948. If the legacy or device is of a specific and determinate
the legacy or devise may be imposed, or the executor or thing pertaining to the testator, the legatee or devisee acquires
administrator of the estate if no particular heir is so obliged. the ownership thereof upon the death of the testator, as well as
any growing fruits, or unborn offspring of animals, or
If the heir, legatee or devisee, who may have been given the uncollected income; but not the income which was due and
choice, dies before making it, this right shall pass to the unpaid before the latter's death.
respective heirs.
From the moment of the testator's death, the thing bequeathed
Once made, the choice is irrevocable. shall be at the risk of the legatee or devisee, who shall,
therefore, bear its loss or deterioration, and shall be benefited
In the alternative legacies or devises, except as herein provided, by its increase or improvement, without prejudice to the
the provisions of this Code regulating obligations of the same responsibility of the executor or administrator. (882a)
kind shall be observed, save such modifications as may appear
from the intention expressed by the testator. (874a) Art. 949. If the bequest should not be of a specific and
determinate thing, but is generic or of quantity, its fruits and
Art. 941. A legacy of generic personal property shall be valid interests from the time of the death of the testator shall pertain
even if there be no things of the same kind in the estate. to the legatee or devisee if the testator has expressly so
ordered. (884a)
A devise of indeterminate real property shall be valid only if
there be immovable property of its kind in the estate. Art. 950. If the estate should not be sufficient to cover all the
legacies or devises, their payment shall be made in the
The right of choice shall belong to the executor or administrator following order:
who shall comply with the legacy by the delivery of a thing
which is neither of inferior nor of superior quality. (875a) (1) Remuneratory legacies or devises;

Art. 942. Whenever the testator expressly leaves the right of (2) Legacies or devises declared by the testator to be
choice to the heir, or to the legatee or devisee, the former may preferential;
give or the latter may choose whichever he may prefer. (876a)
(3) Legacies for support;
Art. 943. If the heir, legatee or devisee cannot make the choice,
in case it has been granted him, his right shall pass to his heirs; (4) Legacies for education;
but a choice once made shall be irrevocable. (877a)
(5) Legacies or devises of a specific, determinate thing
Art. 944. A legacy for education lasts until the legatee is of age, which forms a part of the estate;
or beyond the age of majority in order that the legatee may
finish some professional, vocational or general course, (6) All others pro rata. (887a)
provided he pursues his course diligently.
Art. 951. The thing bequeathed shall be delivered with all its
A legacy for support lasts during the lifetime of the legatee, if accessories and accessories and in the condition in which it
the testator has not otherwise provided. may be upon the death of the testator. (883a)

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Wills & Succession/ Atty Uribe as to its kind, in accordance with the provisions of
Article 928. (869a)
Art. 952. The heir, charged with a legacy or devise, or the
executor or administrator of the estate, must deliver the very Art. 958. A mistake as to the name of the thing bequeathed or
thing bequeathed if he is able to do so and cannot discharge devised, is of no consequence, if it is possible to identify the
this obligation by paying its value. thing which the testator intended to bequeath or devise. (n)

Legacies of money must be paid in cash, even though the heir Art. 959. A disposition made in general terms in favor of the
or the estate may not have any. testator's relatives shall be understood to be in favor of those
nearest in degree. (751)
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the estate, but Fernandez vs. Dimagiba
without prejudice to the legitime. (886a)
It appears from the record that on January 19, 1955, Ismaela
Art. 953. The legatee or devisee cannot take possession of the Dimagiba, now respondent, submitted to the Court of First Instance a
thing bequeathed upon his own authority, but shall request its petition for the probate of the purported will of the late Benedicta de
delivery and possession of the heir charged with the legacy or los Reyes, executed on October 22, 1930, and annexed to the
devise, or of the executor or administrator of the estate should petition. The will instituted the petitioner as the sole heir of the estate
he be authorized by the court to deliver it. (885a) of the deceased. The petition was set for hearing, and in due time,
Dionisio Fernandez, Eusebio Reyes and Luisa Reyes, and one
Art. 954. The legatee or devisee cannot accept a part of the month later, Mariano, Cesar, Leonor and Paciencia, all surnamed
legacy or devise and repudiate the other, if the latter be Reyes, all claiming to be heirs intestate of the decedent, filed
onerous. oppositions to the probate asked. Grounds advanced for the
opposition were forgery, vices of consent of the testatrix, estoppel by
Should he die before having accepted the legacy or devise, laches of the proponent, and revocation of the will by two deeds of
leaving several heirs, some of the latter may accept and the conveyance of the major portion of the estate made by the testatrix in
others may repudiate the share respectively belonging to them favor of the proponent in 1943 and 1944, but which conveyances
in the legacy or devise. (889a) were finally set aside by this Supreme Court in a decision
promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-
Art. 955. The legatee or devisee of two legacies or devises, one 5620 (unpublished).
of which is onerous, cannot renounce the onerous one and
accept the other. If both are onerous or gratuitous, he shall be Oppositors Fernandez and Reyes petitioned for reconsideration
free to accept or renounce both, or to renounce either. But if the and/or new trial, insisting that the issues of estoppel and revocation
testator intended that the two legacies or devises should be be considered and resolved; whereupon, on July 27, 1959, the Court
inseparable from each other, the legatee or devisee must either overruled the claim that proponent was in estoppel to ask for the
accept or renounce both. probate of the will, but "reserving unto the parties the right to raise
the issue of implied revocation at the opportune time."
Any compulsory heir who is at the same time a legatee or
devisee may waive the inheritance and accept the legacy or On February 27, 1962, after receiving further evidence on the issue
devise, or renounce the latter and accept the former, or waive or whether the execution by the testatrix of deeds of sale of the larger
accept both. (890a) portion of her estate in favor of the testamentary heir, made in 1943
and 1944, subsequent to the execution of her 1930 testament, had
Art. 956. If the legatee or devisee cannot or is unwilling to revoked the latter under Article 957(2) of the 1950 Civil Code (Art.
accept the legacy or devise, or if the legacy or devise for any 869 of the Civil Code of 1889), the trial Court resolved against the
reason should become ineffective, it shall be merged into the oppositors and held the will of the late Benedicta de los Reyes
mass of the estate, except in cases of substitution and of the "unaffected and unrevoked by the deeds of sale." Whereupon, the
right of accretion. (888a) oppositors elevated the case to the Court of Appeals.
In this instance, both sets of oppositors-appellants pose three main
Art. 957. The legacy or devise shall be without effect: issues: (a) whether or not the decree of the Court of First Instance
allowing the will to probate had become final for lack of appeal; (b)
(1) If the testator transforms the thing bequeathed in whether or not the order of the Court of origin dated July 27, 1959,
such a manner that it does not retain either the form or overruling the estoppel invoked by oppositors-appellants had
the denomination it had; likewise become final; and (c) whether or not the 1930 will of
Benedicta de los Reyes had been impliedly revoked by her execution
(2) If the testator by any title or for any cause alienates of deeds of conveyance in favor of the proponent on March 26, 1943
the thing bequeathed or any part thereof, it being and April 3, 1944.
understood that in the latter case the legacy or devise
shall be without effect only with respect to the part There being no controversy that the probate decree of the Court
thus alienated. If after the alienation the thing should below was not appealed on time, the same had become final and
again belong to the testator, even if it be by reason of conclusive. Hence, the appellate courts may no longer revoke said
nullity of the contract, the legacy or devise shall not decree nor review the evidence upon which it is made to rest. Thus,
thereafter be valid, unless the reacquisition shall have the appeal belatedly lodged against the decree was correctly
been effected by virtue of the exercise of the right of dismissed.
repurchase;
The alleged revocation implied from the execution of the deeds of
(3) If the thing bequeathed is totally lost during the conveyance in favor of the testamentary heir is plainly irrelevant to
lifetime of the testator, or after his death without the and separate from the question of whether the testament was duly
heir's fault. Nevertheless, the person obliged to pay executed. For one, if the will is not entitled to probate, or its probate
the legacy or devise shall be liable for eviction if the is denied, all questions of revocation becomes superfluous: in law,
thing bequeathed should not have been determinate there is no such will and hence there would be nothing to revoke.
Then, again, the revocation invoked by the oppositors-appellants is
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testatrix allegedly evidencing an abandonment of the original

91

Wills & Succession/ Atty Uribe Filomena Diaz died on February 8, 1954, leaving two legitimate
children, Milagros Belen de Olaguera, married, with seven (7)
intention to bequeath or devise the properties concerned. As such, legitimate children, and Onesima D. Belen, single.
the revocation would not affect the will itself, but merely the particular
devise or legacy. Only the total and absolute revocation can preclude On March 19, 1958, Onesima D. Belen filed a petition in Special
probate of the revoked testament (Trillana vs. Crisostomo, supra). Proceedings No. 9226, contending that the amount that would have
appertained to Filomena Diaz under the codicil should now be
As to the issue of estoppel, we have already ruled in Guevara vs. divided (equally) only between herself and Milagros Belen de
Guevara, 98 Phil. 249, that the presentation and probate of a will are Olaguera, as the surviving children of the said deceased, to the
requirements of public policy, being primarily designed to protect the exclusion, in other words, of the seven (7) legitimate children of
testator's expressed wishes, which are entitled to respect as a Milagros Belen de Olaguera. The court, in its order of May 23, 1958,
consequence of the decedent's ownership and right of disposition denied, as we initially pointed out, Onesima's petition.
within legal limits. Evidence of it is the duty imposed on a custodian
of a will to deliver the same to the Court, and the fine and From this order Onesima D. Belen has appealed to this Court,
imprisonment prescribed for its violation (Revised Rule 75) It would insisting that (1) the Court below was in error in holding that its
be non-sequitur to allow public policy to be evaded on the pretext of former resolution of September 16, 1955 had been affirmed by our
estoppel. Whether or not the order overruling the allegation of decision of February 28, 1958 in the case of Arguelles vs. Belen de
estoppel is still appealable or not, the defense is patently Olaguera, G. R. No. L-10164 Feb. 28, 1958; and (2) that the term
unmeritorious and the Court of Appeals correctly so ruled. "sus descendientes legitimos," as used in the codicil, should be
interpreted to mean descendants nearest in degree to the original
The last issue, that of revocation, is predicated on paragraph 2 of legatee Filomena Diaz. In the present case, they are her two
Article 957 of the Civil Code of 1 daughters (Milagros and Onesima Belen), thereby excluding the
seven grandchildren of said legatee.
As observed by the Court of Appeals, the existence of any such
change or departure from the original intent of the testatrix, As to the actual meaning of the provision —
expressed in her 1930 testament, is rendered doubtful by the
circumstance that the subsequent alienations in 1943 and 1944 were "El resto se distribuira a las siguientes personas que aun viven, o a
executed in favor of the legatee herself, appellee Dimagiba. In fact, sus descendientes legitimos",
as found by the Court of Appeals in its decision annulling these
conveyances (affirmed in that point by this Supreme Court in Reyes it is undeniable that by this clause the testator ordained a simple
vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated substitution (sustitucion vulgar) with a plurality of substitutes for each
on July 31, 1954), "no consideration whatever was paid by legatee. This form of substitution is authorized by the first part of
respondent Dimagiba" on account of the transfers, thereby rendering Article 860 of the Civil Code (Art. 778 of the Code of 1889):
it even more doubtful whether in conveying the property to her
legatee, the testatrix merely intended to comply in advance with what "Two or more persons may be substituted for one; and one
she had ordained in her testament, rather than an alteration or person for two or more heirs."
departure therefrom. 1 Revocation being an exception, we believe,
with the Courts below, that in the circumstances of the particular The issue is now squarely before us: do the words "sus
case, Article 957 of the Civil Code of the Philippines does not apply descendientes legitimos" refer conjointly to all living descendants
to the case at bar. (children and grandchildren) of the legatee, as a class; or do they
refer to the descendants nearest in degree?
Not only that, but even if it were applicable, the annulment of the
conveyances would not necessarily result in the revocation of the Appellant Onesima Belen contends that the phrase should be taken
legacies, if we bear in mind that the findings made in the decision to mean the relatives nearest in degree to Filomena Diaz; and that
decreeing the annulment of the subsequent 1943 and 1944 deeds of the legacy should be therefore divided equally between her and her
sale were also that sister Milagros Belen de Olaguera, to the exclusion of the latter's
sons and daughters, grandchildren of the original legatee, Filomena
If the annulment was due to undue influence, as the quoted passage Diaz. As authority in support of her thesis, appellant invokes Article
implies, then the transferor was not expressing her own free will and 959 of the Civil Code of the Philippines (reproducing ne varietur
intent in making the conveyances. Hence, it can not be concluded, Article 751 of the Code of 1889):
either, that such conveyances established a decision on her part to
abandon the original legacy. True it is that the legal provision quoted "A distribution made in general terms in favor of the testator's
prescribes that the recovery of the alienated property "even if it be by relatives shall be understood as made in favor of those nearest in
reason of the nullity of the contract" does not revive the legacy; but degree."
as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-
325) the "nullity of the contract" can not be taken in an absolute The argument fails to note that this article is specifically limited in its
sense. 2 Certainly, it could not be maintained, for example, that if a application to the case where the beneficiaries are relatives of the
testator's subsequent alienation were voided because the testator testator, not those of the legatee. In such an event, the law assumes
was mentally deranged at the time, the revocatory effect ordained by that the testator intended to refer to the rules of intestacy, in order to
the article should still ensue. And the same thing could be said if the benefit the relatives closest to him, because, as Manresa observes,
alienation (posterior to the will) were avoided on account of physical —
or mental duress. Yet, an alienation through undue influence in no But the ratio legis (that among a testator's relatives the closest are
way differs from one made through violence or intimidation. In either dearest) obviously does not apply where the beneficiaries are
case, the transferor is not expressing his real intent, 3 and it can not relatives of another person (the legatee) and not of the testator.
held that there was in fact an alienation that could produce a There is no logical reason in this case to presume that the testator
revocation of the anterior bequest. intended to refer to the rules of intestacy, for he precisely made a
testament and provided substitutes for each legatee; nor can it be
Belen vs. BPI said that his affections would prefer the nearest relatives of the
legatee to those more distant, since he envisages all of them in a
Benigno Diaz executed a codicil on September 29, 1944 On group, and only as mere substitutes for a preferred beneficiary.
November 7, 1944, Benigno Diaz died; and the aforesaid codicil,
together with the will, was admitted to probate in Special Should Article 959 (old Art. 751) be applied by analogy? There are
Proceedings No. 894 of the same Court of First Instance of Manila. various reasons against this. The most important one is that under
The proceedings for the administration of the estate of Benigno Diaz this article, as recognized by the principal commentators on the Code
were closed in 1950 and the estate was thereafter put under the
administration of the appellee Bank of the Philippine Islands, as 92
trustee for the benefit of the legatees.

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Wills & Succession/ Atty Uribe (3) If the suspensive condition attached to the
institution of heir does not happen or is not fulfilled, or
of 1889, the nearest exclude all the farther relatives and the right of if the heir dies before the testator, or repudiates the
representation does not operate. inheritance, there being no substitution, and no right
of accretion takes place;
The result would be that by applying to the descendants of Filomena
Diaz the "nearest relatives" rule of Article 959, the inheritance would (4) When the heir instituted is incapable of
be limited to her children, or anyone of them, excluding the succeeding, except in cases provided in this Code.
grandchildren altogether. This could hardly be the intention of the (912a)
testator who, in the selfsame clause 10 of his codicil (ante), speaks
of "cuatro hijos de mi difunto hermano Fabian" and of "los hijos de Art. 961. In default of testamentary heirs, the law vests the
Domingo Legarda," as well as of "descendientes legitimos" of the inheritance, in accordance with the rules hereinafter set forth, in
other legatees, to us indicating clearly that he understood well that the legitimate and illegitimate relatives of the deceased, in the
hijos and descendientes are not synonymous terms. Observe that, in surviving spouse, and in the State. (913a)
referring to the substitutes of Filomena Diaz, Nestor Santiago and
Isabel M. de Santiago, the testator, does not even use the Rosales vs. Rosales
description "sus hijos o descendientes," but only "descendientes".
There is no doubt that, the testator's intention being the cardinal rule In this Petition for Review of two (2) Orders of the Court of First
of succession in the absence of compulsory (forced) heirs, he could Instance of Cebu the question raised is whether the widow whose
have rendered inoperative all the articles mentioned, if he had so husband predeceased his mother can inherit from the latter, her
desired. But without any other supporting circumstances, we deem it mother-in-law.
extremely conjectural to hold that by the simple expression "o a sus
descendientes legitimos," the testator Benigno Diaz did intend to In the course of the intestate proceedings, the trial court issued an
circumvent all the legal provisions heretofore quoted. It was Order dated June 16, 1972 declaring the following individuals the
incumbent upon appellant to prove such intention on the part of the legal heirs of the deceased and prescribing their respective share of
testator; yet she has not done so. the estate — Fortunato T. Rosales (husband) 1/4; Magna R. Acebes
(daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio Rosales
It is interesting to note that even under the Anglo-Saxon doctrine, the (son), 1/4.
courts are divided on the question whether a bequest to "relatives" or
"issue," made in general terms, gives rise to a succession per capita This declaration was reiterated by the trial court in its Order dated
or per stirpes. In Wyeth, et al., vs. Crane, 174 N.E. 871, the Supreme February 4, 1975. These Orders notwithstanding, Irenea Rosales
Court of Illinois said: insisted in getting a share of the estate in her capacity as the
surviving spouse of the late Carterio Rosales, son of the deceased,
"The meaning of the word 'descendants', when used in a will or deed claiming that she is a compulsory heir of her mother-in-law together
to designate a class to take property passing by the will or deed, has with her son, Macikequerox Rosales.
been frequently considered and decided by the courts of England
and the United States. The established rule in England from an early In sum, the petitioner poses two (2) questions for Our resolution.
date was that the word 'descendants' or the word 'issue', unexplained First — is a widow (surviving spouse) an intestate heir of her mother-
by anything in the context of the instrument, means all persons in-law? Second — are the Orders of the trial court which excluded
descending lineally from another, to the remotest degree, and the widow from getting a share of the estate in question final as
includes persons so descended, even though their parents are living, against the said widow?
and that such descendants take per capita and not per stirpes."
Our answer to the first question is in the negative. Intestate or legal
"The courts of this country are divided on the question of whether in heirs are classified into two (2) groups, namely, those who inherit by
case of a gift or conveyance to 'descendants' or 'issue', children take their own right, and those who inherit by the right of representation.
concurrently with their parents. The so-called English rule has been 1 Restated, an intestate heir can only inherit either by his own right,
adhered to in New York, New Jersey, and Tennessee. . . . On the as in the order of intestate succession provided for in the Civil Code,
other hand, the courts of Massachusetts, Maine, Rhode Island and 2 or by the right of representation provided for in Article 981 of the
South Carolina have held that, in case of a gift or conveyance to same law.
descendants or issue, unexplained by anything in the context of the
instrument, children do not take concurrently with their parents." There is no provision in the Civil Code which states that a
widow (surviving spouse) is an intestate heir of her mother-in-
We conclude that in the absence of other indications of contrary law. The entire Code is devoid of any provision which entitles her to
intent, the proper rule to apply in the instant case is that the testator, inherit from her mother-in-law either by her own right or by the right
by designating a class or group of legatees, intended all members of representation. The provisions of the Code which relate to the
thereof to succeed per capita, in consonance with article 846. So that order of intestate succession (Articles 978 to 1014) enumerate with
the original legacy to Filomena Diaz should be equally divided meticulous exactitude the intestate heirs of a decedent, with the
among her surviving children and grandchildren. State as the final intestate heir. The conspicuous absence of a
provision which makes a daughter-in-law an intestate heir of the
LEGAL OF INTESTATE SUCCESSION deceased all the more confirms Our observation. If the legislature
intended to make the surviving spouse an intestate heir of the
XIX. GENERAL PROVISIONS parent-in-law, it would have so provided in the Code.
The aforesaid provision of law 3 refers to the estate of the deceased
A. In General spouse in which case the surviving spouse (widow or widower) is a
compulsory heir. It does not apply to the estate of a parent-in-law.
Art. 960. Legal or intestate succession takes place: Indeed, the surviving spouse is considered a third person as regards
(1) If a person dies without a will, or with a void will, or the estate of the parent-in-law
one which has subsequently lost its validity;
By the same token, the provision of Article 999 of the Civil Code
(2) When the will does not institute an heir to, or aforecited does not support petitioner's claim. A careful examination
dispose of all the property belonging to the testator. In of the said Article confirms that the estate contemplated therein is the
such case, legal succession shall take place only with estate of the deceased spouse. The estate which is the subject
respect to the property of which the testator has not
disposed; 93

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Wills & Succession/ Atty Uribe the latter was concerned, he was entitled to one-fourth (1/4) of the
proceeds as his share by way of reversion. The defendant prayed
matter of the intestate estate proceedings in this case is that of the that the complaint be dismissed; that the extrajudicial partition
deceased Petra V. Rosales, the mother-in-law of the petitioner. It is agreement be declared void with respect to the plaintiff; and, on his
from the estate of Petra V. Rosales that Macikequerox Rosales counterclaim, that the plaintiff be ordered to pay him the sum of
draws a share of the inheritance by the right of representation as P2,500.00.
provided by Article 981 of the Code.
In its decision dated November 3, 1966, the court a quo held that the
Article 971 explicitly declares that Macikequerox Rosales is called to defendant, being a party to the extrajudicial partition agreement, was
succession by law because of his blood relationship. He does not estopped from raising in issue the right of the plaintiff to inherit from
succeed his father, Carterio Rosales (the person represented) who the decedent Pelagia de la Cruz; hence, he must abide by the terms
predeceased his grandmother, Petra Rosales, but the latter whom of the agreement. The court ordered the defendant "to perform his
his father would have succeeded. Petitioner cannot assert the same obligations to develop Lots 1, 2 and 3 of (LRC) Psd-29561 as
right of representation as she has no filiation by blood with her described on page 2 of the Extrajudicial Partition Agreement"
mother-in-law. (meaning, apparently, that the defendant should develop the
subdivision because said Lots 1, 2 and 3 were intended to be sold for
Petitioner however contends that at the time of the death of her this purpose), and to pay the plaintiff the sum of P2,000.00 as actual
husband Carterio Rosales he had an inchoate or contingent right to damages, the sum of P500.00 as attorney's fees, and the costs. No
the properties of Petra Rosales as compulsory heir. Be that as it disposition was made of defendant's counterclaim. The defendant
may, said right of her husband was extinguished by his death that is filed a "Motion for New Trial' but the same was denied. Hence, this
why it is their son Macikequerox Rosales who succeeded from Petra appeal.
Rosales by right of representation. He did not succeed from his
deceased father, Carterio Rosales. In the stipulation of facts submitted to the court below, the parties
admit that the owner of the estate, subject matter of the extrajudicial
On the basis of the foregoing observations and conclusions, We find partition agreement, was Pelagia de la Cruz, who died intestate on
it unnecessary to pass upon the second question posed by the October 16, 1962 that defendant-appellant is a nephew of the said
petitioner. Accordingly, it is Our considered opinion, and We so hold, decedent; that plaintiff-appellee is a grandniece of Pelagia de la
that a surviving spouse is not an intestate heir of his or her parent-in- Cruz, her mother, Marciana de la Cruz, being a niece of the said
law. WHEREFORE, in view of the foregoing, the Petition is hereby Pelagia de la Cruz; that plaintiff-appellee's mother died on
DENIED for lack of merit, with costs against the petitioner. Let this September 22, 1935, thus pre-deceasing Pelagia de la Cruz; and
case be remanded to the trial court for further proceedings. that the purpose of the extrajudicial partition agreement was to divide
and distribute the estate among the heirs of Pelagia de la Cruz.
Art. 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of The pivotal question is whether, in the premises, plaintiff-appellee is
representation when it properly takes place. an heir of the decedent. We are convinced that she is not. Plaintiff-
appellee being a mere grandniece of Pelagia de la Cruz, she could
Relatives in the same degree shall inherit in equal shares, not inherit from the latter by right of representation.
subject to the provisions of article 1006 with respect to relatives
of the full and half blood, and of Article 987, paragraph 2, "ART. 972. The right of representation takes place
concerning division between the paternal and maternal lines.
(912a) in the direct descending line, but never in the ascending.

Delos Santos vs. Dela Cruz "In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full or
From the record of this case, we cull the following salient facts: On half blood."
May 21, 1965, Gertrudes de los Santos filed a complaint for specific
performance against Maximo de la Cruz, alleging, among others, that Much less could plaintiff-appellee inherit in her own right.
on August 24, 1963, she and several co-heirs, including the
defendant, executed an extrajudicial partition agreement (a copy of "ART. 962. In every inheritance, the relative
which was attached to the complaint) over a certain portion of land
with an area of around 20,000 sq. m.; that the parties thereto had nearest in degree excludes the more distant ones, saving
agreed to adjudicate three (3) lots to the defendant, in addition to his
corresponding share, on condition that the latter would undertake the the right of representation when it properly takes place . . ."
development and subdivision of the estate which was the subject
matter of the agreement, all expenses in connection therewith to be In the present case, the relatives "nearest in degree" to Pelagia de la
defrayed from the proceeds of the sale of the aforementioned three Cruz are her nephews and nieces, one of whom is defendant-
(3) lots; that in spite of demands by the plaintiff, by the other co-heirs, appellant. Necessarily, plaintiff-appellee, a grandniece, is excluded
and by the residents of the subdivision, the defendant refused to by law from the inheritance.
perform his aforesaid obligation although he had already sold the
aforesaid lots. The plaintiff prayed the court to order the defendant to But what is the legal effect of plaintiff-appellee's inclusion and
comply with his obligation under the extra-judicial partition agreement participation in the extrajudicial partition agreement insofar as her
and to pay the sum of P1,000.00 as attorney's fees and costs. right to bring the present action is concerned? They did not confer
upon her the right to institute this action. The express purpose of the
In his answer, the defendant admitted the due execution of the extrajudicial partition agreement, as admitted by the parties in the
extrajudicial partition agreement, but set up the affirmative defenses stipulation of facts, was to divide the estate among the heirs of
that the plaintiff had no cause of action against him because the said Pelagia de la Cruz. Indeed, the said agreement itself states that
agreement was void with respect to her, for the reason that the plaintiff-appellee was participating therein in representation of her
plaintiff was not an heir of Pelagia de la Cruz, deceased owner of the deceased mother.
property, and was included in the extrajudicial partition agreement by
mistake; and that although he had disposed of the three lots It is quite apparent that in executing the partition agreement, the
adjudicated to him, nevertheless the proceeds of the sale were not parties thereto were laboring under the erroneous belief that plaintiff-
sufficient to develop and improve properly the subdivided estate. The appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-
answer contained a counterclaim wherein the defendant alleged that appellee not being such an heir, the partition is void with respect to
the plaintiff had likewise sold her share in the estate for P10,000.00, her, pursuant to Article 1105 of the Civil Code, which reads:
and that the extrajudicial partition agreement being void insofar as
"ART. 1105. A partition which includes a person
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believed to be an heir, but who is not, shall be void only

with respect to such person."

94

Wills & Succession/ Atty Uribe representation, if they survive with their uncles or aunts. But if
they alone survive, they shall inherit in equal portions. (927)
Partition of property affected between a person entitled to inherit
from the deceased owner thereof and another person who thought Art. 976. A person may represent him whose inheritance he has
he was an heir, when he was not really and lawfully such, to the renounced. (928a)
prejudice of the rights of the true heir designated by law to succeed
the deceased, is null and void (De Torres vs. De Torres, et al., 28 Art. 977. Heirs who repudiate their share may not be
Phil. 49). A fortiori, plaintiff-appellee could hardly derive from the represented. (929a)
agreement the right to have its terms enforced.
Art. 982. The grandchildren and other descendants shall inherit
The extrajudicial partition agreement being void with respect to by right of representation, and if any one of them should have
plaintiff-appellee, she may not be heard to assert estoppel against died, leaving several heirs, the portion pertaining to him shall be
defendant-appellant. Estoppel cannot be predicated on a void divided among the latter in equal portions. (933)
contract (17 Am. Jur. 605), or on acts which are prohibited by law or
are against public policy Art. 902. The rights of illegitimate children set forth in the
preceding articles are transmitted upon their death to their
The award of actual damages in favor of plaintiff-appellee cannot be descendants, whether legitimate or illegitimate. (843a)
sustained in view of the conclusion we have arrived at above.
Furthermore, actual or compensatory damages must be duly proved Art. 992. An illegitimate child has no right to inherit ab intestato
(Article 2199, Civil Code). Here, no proof of such damages was from the legitimate children and relatives of his father or
presented inasmuch as the case was decided on a stipulation of mother; nor shall such children or relatives inherit in the same
facts and no evidence was adduced before the trial court. manner from the illegitimate child. (943a)

Such being the case, defendant-appellant is apparently correct in his Art. 1005. Should brothers and sisters survive together with
contention that the lower court erred in not passing on his nephews and nieces, who are the children of the descendant's
counterclaim and, consequently, in not sentencing appellee to turn brothers and sisters of the full blood, the former shall inherit per
over to him his corresponding share of said portion received by capita, and the latter per stirpes. (948)
appellee under the void partition. Remote relatives or unrelated
persons who unduly received and took possession of the property of Art. 1006. Should brother and sisters of the full blood survive
a deceased person without any right, by virtue of a null and void together with brothers and sisters of the half blood, the former
partition, must restore it to the legitimate successor in the inheritance shall be entitled to a share double that of the latter. (949)
(De Torres vs. De Torres, et al., supra). Of course, if such share has
already been disposed of by appellee to a bona fide purchaser, as Art. 1007. In case brothers and sisters of the half blood, some
seems to be indicated in the unproven allegations of the on the father's and some on the mother's side, are the only
counterclaim, We cannot render judgment awarding any specific survivors, all shall inherit in equal shares without distinction as
amount to defendant-appellant as his proportionate share of the to the origin of the property. (950)
proceeds of such sale for the reason that, as already stated above,
this aspect of the counterclaim has not been touched upon in the Art. 1008. Children of brothers and sisters of the half blood shall
stipulation of facts nor has it been supported by evidence which succeed per capita or per stirpes, in accordance with the rules
appellant should have presented in the lower court but did not. laid down for the brothers and sisters of the full blood. (915)

C. Right Representation Teotica vs. Del Val Chan

Art. 970. Representation is a right created by fiction of law, by Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in
virtue of which the representative is raised to the place and the the City of Manila leaving properties worth P600,000.00. She left a
degree of the person represented, and acquires the rights which will written in Spanish which she executed at her residence in No. 2
the latter would have if he were living or if he could have Legarda St., Quiapo, Manila. She affixed her signature at the bottom
inherited. (942a) of the will and on the left margin of each and every page thereof in
the presence of Pilar Borja, Pilar G. Sanchez, and Modesto
Art. 971. The representative is called to the succession by the Formilleza, who in turn affixed their signatures below the attestation
law and not by the person represented. The representative does clause and on the left margin of each and every page of the will in
not succeed the person represented but the one whom the the presence of the testatrix and of each other. Said will was
person represented would have succeeded. (n) acknowledged before Notary Public Niceforo S. Agaton by the
testatrix and her witnesses.
Art. 972. The right of representation takes place in the direct
descending line, but never in the ascending. Among the many legacies and devises made in the will was one of
P20,000.00 to Rene A. Teotico, married to the testatrix's niece
In the collateral line, it takes place only in favor of the children named Josefina Mortera. To said spouses the testatrix left the
of brothers or sisters, whether they be of the full or half blood. usufruct of her interest in the Calvo building, while the naked
(925) ownership thereof she left in equal parts to her grandchildren who
are the legitimate children of said spouses. The testatrix also
Art. 973. In order that representation may take place, it is instituted Josefina Mortera as her sole and universal heir to all the
necessary that the representative himself be capable of remainder of her properties not otherwise disposed of in the will.
succeeding the decedent. (n)
Ana del Val Chan, claiming to be an adopted child of Francisca
Art. 974. Whenever there is succession by representation, the Mortera, a deceased sister of the testatrix, as well as an
division of the estate shall be made per stirpes, in such manner acknowledged natural child of Jose Mortera, a deceased brother of
that the representative or representatives shall not inherit more the same testatrix, filed on September 2, 1955 an opposition to the
than what the person they represent would inherit, if he were probate of the will alleging the following grounds: (1) said will was not
living or could inherit. (926a)
95
Art. 975. When children of one or more brothers or sisters of the
deceased survive, they shall inherit from the latter by

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Wills & Succession/ Atty Uribe does no more them recognize this truth, by avoiding further grounds
of resentment.' (7 Manresa, 3d ed., p. 110.)"
executed as required by law; (2) the testatrix was physically and
mentally incapable to execute the will at the time of its execution; and The oppositor cannot also derive comfort from the fact that she is an
(3) the will was executed under duress, threat or influence of fear. adopted child of Francisca Mortera because under our law the
relationship established by adoption is limited solely to the adopter
After the parties had presented their evidence, the probate court and the adopted does not extend to the relatives of the adopting
rendered its decision on November 10, 1960 admitting the will to parents or of the adopted child except only as expressly provided for
probate but declaring the disposition made in favor of Dr. Rene by law. Hence, no relationship is created between the adopted and
Teotico void with the statement that the portion to be vacated by the the collaterals of the adopting parents. As a consequence, the
annulment should pass to the testatrix's heirs by way of intestate adopted is an heir of the adopter but not of the relatives of the
succession. adopter.

The motions for reconsideration above adverted to having been "The relationship established by the adoption, however, is limited to
denied, both petitioner and oppositor appealed from the decision, the the adopting parent, and does not extend to his other relatives,
former from that portion which nullifies the legacy in favor of Dr. except as expressly provided by law. Thus, the adopted child cannot
Rene Teotico and declares the vacated portion as subject of be considered as a relative of the ascendants and collaterals of the
succession in favor of the legal heirs, and the latter from that portion adopting parents, nor of the legitimate children which they may have
which admits the will to probate. And in this instance both petitioner after the adoption, except that the law imposes certain impediments
and oppositor assign several error which, stripped of non-essentials, to marriage by reason of adoption. Neither are the children of the
may be boiled down to the following: (1) Has oppositor Ana del Val adopted considered as descendants of the adopter. The relationship
Chan the right to intervene in this proceeding?; (2) Has the will in created is exclusively between, the adopter and the adopted, and
question been duly admitted to probate?; and (3) Did the probate does not extend to the relatives of either." (Tolentino, Civil Code of
court commit an error in passing on the intrinsic validity of the the Philippines, Vol. 1, p. 652)
provisions of the will and in determining who should inherit the
portion to be vacated by the nullification of the legacy made in favor We have examined the evidence on the matter and we are fully in
of Dr. Rene Teotico? accord with the foregoing observation. Moreover, the mere claim that
Josefina Mortera and her husband Rene Teotico had the opportunity
It is a well-settled rule that in order that a person may be allowed to to exert pressure on the testatrix simply because she lived in their
intervene in a probate proceeding he must have an interest in the house several years prior to the execution of the will and that she
estate, or in the will, or in the property to be affected by it either as was old and suffering from hypertension in that she was virtually
executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat isolated from her friends for several years prior to her death is
Hua, et al., L-17091, September 30, 1963); and an interested party insufficient to disprove what the instrumental witnesses had testified
has been defined as one who would be benefitted by the estate such that the testatrix freely and voluntarily and with full consciousness of
as an heir or one who has a claim against the estate like a creditor the solemnity of the occasion executed the will under consideration.
(Idem.). On the other hand, in Saguinsin vs. Lindayag, et al., L- The exercise of improper pressure and undue influence must be
17750, December 17, 1962, this Court said: supported by substantial evidence and must be of a kind that would
overpower and subjugate the mind of the testatrix as to destroy her
"According to Section 2, Rule 80 of the Rules of Court, a petition for free agency and make her express the will of another rather than her
letters of administration must be filed by an 'interested person.' An own (Coso vs. Deza, 42 Phil., 596). The burden is on the person
interested party has been defined in this connection as one who challenging the will that such influence was exerted at the time of its
would be benefitted by the estate, such as an heir, or one who has a execution, a matter which here was not done, for the evidence
claim against the estate, such as a creditor (Intestate Estate of Julio presented not only is sufficient but was disproved by the testimony
Magbanwa 40 O.G., 1171). And it is well settled in this jurisdiction the instrumental witnesses.
that in civil actions as well as special proceedings, the interest
required in order that a person may be a party thereto must be The question of whether the probate court could determine the
material and direct, and not merely indirect or contingent. (Trillana intrinsic validity of the provisions of a will has been decided by this
vs. Crisostomo, G. R. No. L-3370, August 22, 1951; Rapinosa vs. Court in a long line of decisions among which the following may be
Barrion, 70 Phil. 311)." cited: "Opposition to the intrinsic validity or legality of the provisions
of the will cannot be entertained in probate proceeding because its
The question now may be asked: Has oppositor any interest in any of only purpose is merely to determine if the will has been executed in
the provisions of the will, and, in the negative, would she acquire any accordance with the requirements of the law."
right to the estate in the event that the will is denied probate?
"To establish conclusively as against everyone, and once for all, the
Under the terms of the will, oppositor has no right to intervene facts that a will was executed with the formalities required by law and
because she has no interest in the estate either as heir, executor, or that the testator was in a condition to make a will, is the only purpose
administrator, nor does she have any claim to any property affected of the proceedings under the new code for the probate of a will. (Sec.
by the will, because it nowhere appears therein any provision 625.) The judgment in such proceedings determines and can
designating her as heir, legatee or devisee of any portion of the determine nothing more. In them the court has no power to pass
estate. She has also no interest in the will either as administratrix or upon the validity of any provisions made in the will. It can not decide,
executrix. Neither has she any claim against any portion of the estate for example, that a certain legacy is void and another one valid."
because she is not a co-owner thereof, and while she previously had
an interest in the Calvo building located in Escolta, she had already Diaz vs. IAC
disposed of it long before the execution of the will.
Private respondent filed a Petition dated January 23, 1976 with the
"'Between the natural child and the legitimate relatives of the father Court of First Instance of Cavite in Sp. Proc. Case No. B-21, "In The
or mother who acknowledged it, the Code denies any right of Matter of the Intestate Estate of the late Simona Pamuti Vda. de
succession. They cannot be called relatives and they have no right to Santero," praying among other things, that the corresponding letters
inherit. Of course, there is a blood tie, but the law does not recognize of Administration be issued in her favor and that she be appointed as
it. In this, article 943 is based upon the reality of the facts and upon special administratrix of the properties of the deceased Simona
the presumptive will of the interested parties; the natural child is Pamuti Vda. de Santero.
disgracefully looked down upon by the legitimate family; the
legitimate family is, in turn, hated by the natural child; the latter It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona
considers the privileged condition of the former and the resources of Pamuti Vda. de Santero who together with Felisa's mother Juliana
which it is thereby deprived; the former, in turn, sees in the natural were the only legitimate children of the spouses Felipe Pamuti and
child nothing but the product of sin, a palpable evidence of a blemish
upon the family. Every relation is ordinarily broken in life; the law 96

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Wills & Succession/ Atty Uribe Pablo Santero is a legitimate child, he is not an illegitimate child. On
the other hand, the oppositors (petitioners herein) are the illegitimate
Petronila Asuncion; 2) that Juliana married Simon Jardin and out of children of Pablo Santero.
their union were born Felisa Pamuti and another child who died
during infancy; 3) that Simona Pamuti Vda. de Santero is the widow Article 992 of the New Civil Code provides a barrier or iron curtain in
of Pascual Santero and the mother of Pablo Santero; 4) that Pablo that it prohibits absolutely a succession ab intestato between the
Santero was the only legitimate son of his parents Pascual Santero illegitimate child and the legitimate children and relatives of the father
and Simona Pamuti Vda. de Santero; 5) that Pascual Santero died in or mother of said legitimate child. They may have a natural tie of
1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that blood, but this is not recognized by law for the purposes of Art. 992.
Pablo Santero, at the time of his death was survived by his mother Between the legitimate family and the illegitimate family there is
Simona Santero and his six minor natural children to wit: four minor presumed to be an intervening antagonism and incompatibility. The
children with Anselma Diaz and two minor children with Felixberta illegitimate child is disgracefully looked down upon by the legitimate
Pacursa. family; the family is in turn, hated by the illegitimate child; the latter
considers the privileged condition of the former, and the resources of
Petitioner Anselma Diaz, as guardian of her minor children, filed her which it is thereby deprived; the former, in turn, sees in the
"Opposition and Motion to Exclude Felisa Pamuti-Jardin dated March illegitimate child nothing but the product of sin, palpable evidence of
13, 1980, from further taking part or intervening in the settlement of a blemish broken in life; the law does no more than recognize this
the intestate estate of Simona Pamuti Vda. de Santero, as well as in truth, by avoiding further grounds of resentment. 6
the intestate estate of Pascual Santero and Pablo Santero.
Thus, petitioners herein cannot represent their father Pablo Santero
On May 20, 1980, Judge Ildefonso M. Bleza issued an order in the succession of the letter to the intestate estate of his legitimate
excluding Felisa Jardin "from further taking part or intervening in the mother Simona Pamuti Vda. de Santero, because of the barrier
settlement of the intestate estate of Simona Pamuti Vda. de Santero, provided for under Art. 992 of the New Civil Code.
as well as in the intestate estates of Pascual Santero and Pablo
Santero and declared her to be, not an heir of the deceased Simona "In the Spanish Civil Code of 1889 the right of
Pamuti Vda. de Santero." 3 representation was admitted only within the legitimate
family; so much so that Article 943 of that Code prescribed
After her Motion for Reconsideration was denied by the trial court in that an illegitimate child can not inherit ab intestato from
its order dated November 1, 1980, Felisa P. Jardin filed her appeal to the legitimate children and relatives of his father and
the Intermediate Appellate Court in CA-G.R. No. 69814-R. A decision mother. The Civil Code of the Philippines apparently
4 was rendered by the Intermediate Appellate Court on December adhered to this principle since it reproduced Article 943 of
14, 1983 (reversing the decision of the trial court) the dispositive the Spanish Code in its own Art. 992, but with fine
portion of which reads — "WHEREFORE, finding the Order appealed inconsistency, in subsequent articles (990, 995 and 998)
from not consistent with the facts and law applicable, the same is our Code allows the hereditary portion of the illegitimate
hereby set aside and another one entered sustaining the Orders of child to pass to his own descendants, whether legitimate or
December 1 and 9, 1976 declaring the petitioner as the sole heir of illegitimate. So that while Art, 992 prevents the illegitimate
Simona Pamuti Vda. de Santero and ordering oppositors-appellees issue of a legitimate child from representing him in the
not to interfere in the proceeding for the declaration of heirship in the intestate succession of the grandparent, the illegitimates of
estate of Simona Pamuti Vda. de Santero." an illegitimate child can now do so. This difference being
indefensible and unwarranted, in the future revision of the
The real issue in this case may be briefly stated as follows — who Civil Code we shall have to make a choice and decide
are the legal heirs of Simona Pamuti Vda. de Santero — her niece either that the illegitimate issue enjoys in all cases the right
of representation, in which case Art. 992 must be
Felisa Pamuti Jardin or her grandchildren (the natural children of suppressed; or contrariwise maintain said article and
modify Articles 995 and 998. The first solution would be
Pablo Santero)? more in accord with an enlightened attitude vis-a-vis
illegitimate children. (Reflections on the Reform of
The dispute at bar refers only to the intestate estate of Simona Hereditary Succession, JOURNAL of the Integrated Bar of
Pamuti Vda. de Santero and the issue here is whether oppositors- the Philippines, First Quater, 1976, Volume 4, Number 1,
appellees (petitioners herein) as illegitimate children of Pablo pp. 40-41).
Santero could inherit from Simona Pamuti Vda. de Santero, by right
of representation of their father Pablo Santero who is a legitimate It is therefore clear from Article 992 of the New Civil Code that the
child of Simona Pamuti Vda. de Santero. phrase "legitimate children and relatives of his father or mother"
includes Simona Pamuti Vda. de Santero as the word "relative"
Now then what is the appropriate law on the matter? Petitioners includes all the kindred of the person spoken of. 7 The record shows
contend in their pleadings that Art. 990 of the New Civil Code is the that from the commencement of this case the only parties who
applicable law on the case. They contend that said provision of the claimed to be the legitimate heirs of the late Simona Pamuti Vda. de
New Civil Code modifies the rule in Article 941 (Old Civil Code) and Santero are Felisa Pamuti Jardin and the six minor natural or
recognizes the right of representation (Art. 970) to descendants, illegitimate children of Pablo Santero. Since petitioners herein are
whether legitimate or illegitimate and that Art. 941, Spanish Civil barred by the provisions of Article 992, the respondent Intermediate
Code denied illegitimate children the right to represent their Appellate Court did not commit any error in holding Felisa Pamuti-
deceased parents and inherit from their deceased grandparents, but Jardin to be the sole legitimate heir to the intestate estate of the late
that Rule was expressly changed and/or amended by Art. 990 New Simona Pamuti Vda. de Santero.
Civil Code which expressly grants the illegitimate children the right to
represent their deceased father (Pablo Santero) in the estate of their WHEREFORE, this petition is hereby DISMISSED, and the assailed
grandmother (Simona Pamuti)" 5 decision is hereby AFFIRMED

Petitioners' contention holds no water. Since the hereditary conflict Debacayo vs. Feraris
refers solely to the intestate estate of Simona Pamuti Vda. de Melodia Ferraris was a resident of Cebu City until 1937 when she
Santero, who is the legitimate mother of Pablo Santero, the transferred to Intramuros, Manila. She was known to have resided
applicable law is the provision of Art. 992 of the Civil Code which there continuously until 1944. Thereafter, up to the filing on
reads as follows: December 22, 1960 of the petition for the summary settlement of her
estate, she has not been heard of and her whereabouts are still
ART. 992. An illegitimate child has no right to unknown. More than ten (10) years having elapsed since the last

inherit ab intestato from the legitimate children and 97

relatives of his father or mother; nor shall such children or

relatives inherit in the same manner from the illegitimate

child. (943a).

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Wills & Succession/ Atty Uribe It will be seen that under the preceding articles, brothers and sisters
and nephews and nieces inherited ab intestato ahead of the
time she was known to be alive, she was declared presumptively surviving spouse, while other collaterals succeeded only after the
dead for purposes of opening her succession and distributing her widower or widow. The present Civil Code of the Philippines merely
estate among her heirs. placed the spouse on a par with the nephews and nieces and
brothers and sisters of the deceased, but without altering the
Melodia Ferraris left properties in Cebu City, consisting of one third preferred position of the latter vis a vis the other collaterals.
(1/3) share in the estate of her aunt, Rosa Ferraris, valued at
P6,000.00, more or less, and which was adjudicated to her in Special
Proceeding No. 13-V of the same court.

The deceased Melodia Ferraris left no surviving direct descendant, Appellants quote paragraph 2 of Tolentino's commentaries to Article
ascendant, or spouse, but was survived only by collateral relatives, 1009 of the present Civil Code as declaring that Article 1009 does
namely, Filomena Abellana de Bacayo, an aunt, and half- sister of not establish a rule of preference. Which is true as to "other
decedent's father, Anacleto Ferraris; and by Gaudencia, Catalina, collaterals", since preference among them is according to their
Conchita, and Juanito, all surnamed Ferraris, her nieces and proximity to the decedent, as established by Article 962, paragraph
nephew, who were the children of Melodia's only brother of full blood, 1.
Arturo Ferraris, who pre-deceased her (the decedent). These two
classes of heirs claim to be the nearest intestate heirs and seek to "ART. 962. In every inheritance, the relative
participate in the estate of said Melodia Ferraris.
nearest in degree excludes the more distant ones, saving

the right of representation when it properly takes place."

The sole issue to be resolved in this case is: Who should inherit the But Tolentino does not state that nephews and nieces concur with
intestate estate of a deceased person when he or she is survived other collaterals of equal degree. On the contrary, in the first
only by collateral relatives, to wit: an aunt and the children of a paragraph of his commentaries to Article 1009 (Vol. II, p. 439) (which
brother who predeceased him or her? Otherwise, will the aunt concur counsel for appellants had unethically omitted to quote), Tolentino
with the children of the decedent's brother in the inheritance or will expressly states:
the former be excluded by the latter?
"Other Collaterals.— The last of the relatives of the
Against the above ruling, petitioner-appellant contends in the present decedent to succeed in intestate succession are the
appeal that she is of the same or equal degree of relationship as the collaterals other than brothers or sisters or children of
oppositors-appellees, three degrees removed from the decedent; brothers or sisters. They are, however, limited to relatives
and that under article 975 of the New Civil Code no right or within the fifth degree. Beyond this, we can safely say,
representation could take place when the nieces and nephew of the there is hardly any affection to merit the succession of
decedent do not concur with an uncle or aunt, as in the case at bar, collaterals. Under the law, therefore, persons beyond the
but rather the former succeed in their own right. fifth degree are no longer considered as relatives, for
successional purposes.
We agree with appellants that as an aunt of the deceased, she is as
far distant as the nephews from the decedent (three degrees) since "Article 1009 does not state any order of preference.
in the collateral line to which both kinds of relatives belong degrees However, this article should be understood in connection
are counted by first ascending to the common ancestor and then with the general rule that the nearest relatives exclude the
descending to the heir (Civil Code, Art. 966). Appellant is likewise farther. Collaterals of the same degree inherit in equal
right in her contention that nephews and nieces alone do not inherit parts, there being no right of representation. They succeed
by right of representation (i.e., per stirpes) unless concurring with without distinction of lines or preference among them on
brothers or sisters of the deceased, as provided expressly by Article account of the whole blood relationship." (Italics supplied)
975:

"ART. 975. When children of one or more brothers We, therefore, hold, and so rule, that under our laws of succession, a
decedent's uncles and aunts may not succeed ab intestato so long
or sisters of the deceased survive, they shall inherit from as nephews and nieces of the decedent survive and are willing and
qualified to succeed.
the latter by representation, if they survive with their uncles

or aunts. But if they alone survive, they shall inherit in

equal portions."

Corpus vs. Corpus

Nevertheless, the trial court was correct when it held that, in case of Teodoro R. Yangco died in Manila on April 20, 1939 at the age of
intestacy, nephews and nieces of the de cujus exclude all other seventy-seven years. His will dated August 29, 1934 was probated in
collaterals (aunts and uncles, first cousins, etc.) from the succession. the Court of First Instance of Manila in Special Proceeding No.
This is readily apparent from articles 1001, 1004, 1005, and 1009 of 54863. The decree of probate was affirmed in this Court's 1941
the Civil Code of the Philippines, that provided as follows: decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the
Under the last article (1009), the absence of brothers, sisters, will is quoted in that decision.
nephews and nieces of the decedent is a precondition to the other Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona
collaterals (uncles, cousins, etc.) being called to the succession. This Arguelles, the widow of Tomas Corpus. Before her union with Luis
was also and more clearly the case under the Spanish Civil Code of Rafael Yangco, Ramona had begotten five children with Tomas
1889, that immediately preceded the Civil Code now in force (R. A. Corpus, two of whom were the aforenamed Pablo Corpus and Jose
386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as Corpus.
follows:

"ART. 952. In the absence of brothers or sisters Pursuant to the order of the probate court, a project of partition dated
November 26, 1945 was submitted by the administrator and the
and of nephews or nieces, children of the former, whether legatees named in the will. That project of partition was opposed by
the estate of Luis R. Yangco whose counsel contended that an
of the whole blood or not, the surviving spouse, if not intestacy should be declared because the will does not contain an
institution of heir. It was also opposed by Atty. Roman A. Cruz, who
separated by a final decree of divorce shall succeed to the represented Juanita Corpus, Pedro Martinez and Juliana de Castro.
Juanita Corpus was already dead when Atty. Cruz appeared as her
entire estate of the deceased." counsel.

"ART. 954. Should there be neither brothers nor

sisters, nor children of brothers or sisters, nor a surviving

spouse, the other collateral relatives shall succeed to the

estate of deceased.

The latter shall succeed without distinction of lines or The probate court in its order of December 26, 1946 approved the
preference among them by reason of the whole blood." project of partition. It held that in certain clauses of the will the

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Wills & Succession/ Atty Uribe That rule is based on the theory that the illegitimate child is
disgracefully looked upon by the legitimate family while the legitimate
testator intended to conserve his properties not in the sense of family is, in turn, hated by the illegitimate child. The law does not
disposing of them after his death but for the purpose of preventing recognize the blood tie and seeks to avoid further grounds of
that "tales bienes fuesen malgastados o desfilpar rados por los resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6).
legatarios" and that if the testator intended a perpetual prohibition
against alienation, that condition would be regarded "como no puesta Under articles 944 and 945 of the spanish Civil Code, "if an
o no existente". It concluded that "no hay motivos legales o morales acknowledged natural or legitimated child should die without issue,
para que la sucession de Don Teodoro R. Yangco sea declarada either legitimate or acknowledged, the father or mother who
intestada." acknowledged such child shall succeed to its entire estate; and if
both acknowledged it and are alive, they shall inherit from it share
On September 20, 1949, the legatees executed an agreement for the and share alike. In default of natural ascendants, natural and
settlement and physical partition of the Yangco estate. The probate legitimated children shall be succeeded by their natural brothers and
court approved that agreement and noted that the 1945 project of sisters in accordance with the rules established for legitimate
partition was pro tanto modified. That did not set at rest the brothers and sisters." Hence, Teodoro R. Yangco's half brothers on
controversy over the Yangco estate. the Corpus side, who were legitimate, had no right to succeed to his
estate under the rules of intestacy.
The trial court in its decision of July 2, 1956 dismissed the action on
the grounds of res judicata and laches. It held that the intrinsic Following the rule in article 992, formerly article 943, it was held that
validity of Yangco's will was passed upon in its order dated the legitimate relatives of the mother cannot succeed her illegitimate
December 26, 1946 in Special Proceeding No. 54863 approving the child. By reason of that same rule, the natural child cannot represent
project of partition for the testator's estate. his natural father in the succession to the estate of the legitimate
grandparent (Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs.
Appellant Corpus contends in this appeal that the trial court erred in Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural
holding (1) that Teodoro R. Yangco was a natural child, (2) that his daughter cannot succeed to the estate of her deceased uncle, a
will had been duly legalized, and (3) that plaintiff's action is barred by legitimate brother of her natural mother (Anuran vs. Aquino and
res judicata and laches. Ortiz, 38 Phil. 29).

In the disposition of this appeal, it is not necessary to resolve XX. ORDER OF INTESTATE SUCCESSION
whether Yangco's will had been duly legalized and whether the
action of Tomas Corpus is barred by res judicata and laches. The A. Descending Direct Line
appeal may be resolved by determining whether Juanita Corpus, the
mother of appellant Tomas Corpus, was a legal heir of Yangco. Has 1. Estate of legitimate decedent
Tomas Corpus a cause of action to recover his mother's supposed a. Illegitimate children
intestate share in Yangco's estate?
Art. 983. If illegitimate children survive with legitimate children,
To answer that question, it is necessary to ascertain Yangco's the shares of the former shall be in the proportions prescribed
filiation. The trial court found that Yangco "a su muerte tambien le by Article 895. (n)
sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales
reconocidos por su padre natural Luis R. Yangco". The basis of the Art. 988. In the absence of legitimate descendants or
trial court's conclusion that Teodoro R. Yangco was an ascendants, the illegitimate children shall succeed to the entire
acknowledged natural child and not a legitimate child was the estate of the deceased. (939a)
statement in the will of his father, Luis Rafael Yangco, dated June
14, 1907, that Teodoro and his three other children were his Art. 989. If, together with illegitimate children, there should
acknowledged natural children. survive descendants of another illegitimate child who is dead,
the former shall succeed in their own right and the latter by
On the other hand, the children of Ramona Arguelles and Tomas right of representation. (940a)
Corpus are presumed to be legitimate. A marriage is presumed to
have taken place between Ramona and Tomas. Semper praesumitur Art. 990. The hereditary rights granted by the two preceding
pro matrimonio. It is disputably presumed "That a man and a woman articles to illegitimate children shall be transmitted upon their
deporting themselves as husband and wife have entered into a lawful death to their descendants, who shall inherit by right of
contract of marriage"; "that a child born in lawful wedlock, there being representation from their deceased grandparent. (941a)
no divorce, absolute or from bed and board, is legitimate", and "that
things have happened according to the ordinary course of nature and Art. 991. If legitimate ascendants are left, the illegitimate
the ordinary habits of life" (Sec. 5[z], [bb] and [cc], Rule 131, Rules of children shall divide the inheritance with them, taking one-half
Court). of the estate, whatever be the number of the ascendants or of
the illegitimate children. (942-841a)
Since Teodoro R. Yangco was an acknowledged natural child or was
illegitimate and since Juanita Corpus was the legitimate child of Jose Art. 992. An illegitimate child has no right to inherit ab intestato
Corpus, himself a legitimate child, we hold that appellant Tomas from the legitimate children and relatives of his father or
Corpus has no cause of action for the recovery of the supposed mother; nor shall such children or relatives inherit in the same
hereditary share of his mother, Juanita Corpus, as a legal heir, in manner from the illegitimate child. (943a)
Yangco's estate. Juanita Corpus was not a legal heir of Yangco
because there is no reciprocal succession between legitimate and Corpus vs. Corpus
illegitimate relatives. The trial court did not err in dismissing the
complaint of Tomas Corpus. Teodoro R. Yangco died in Manila on April 20, 1939 at the age of
seventy-seven years. His will dated August 29, 1934 was probated in
Appellant Corpus concedes that if Teodoro R. Yangco was a natural the Court of First Instance of Manila in Special Proceeding No.
child, he (Tomas Corpus) would have no legal personality to
intervene in the distribution of Yangco's estate (p. 8, appellant's 99
brief).

The rule in article 943 is now found in article 992 of the Civil Code
which provides that "an illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child".

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Wills & Succession/ Atty Uribe Since Teodoro R. Yangco was an acknowledged natural child or was
illegitimate and since Juanita Corpus was the legitimate child of Jose
54863. The decree of probate was affirmed in this Court's 1941 Corpus, himself a legitimate child, we hold that appellant Tomas
decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the Corpus has no cause of action for the recovery of the supposed
will is quoted in that decision. hereditary share of his mother, Juanita Corpus, as a legal heir, in
Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Yangco's estate. Juanita Corpus was not a legal heir of Yangco
Arguelles, the widow of Tomas Corpus. Before her union with Luis because there is no reciprocal succession between legitimate and
Rafael Yangco, Ramona had begotten five children with Tomas illegitimate relatives. The trial court did not err in dismissing the
Corpus, two of whom were the aforenamed Pablo Corpus and Jose complaint of Tomas Corpus.
Corpus.
Appellant Corpus concedes that if Teodoro R. Yangco was a natural
Pursuant to the order of the probate court, a project of partition dated child, he (Tomas Corpus) would have no legal personality to
November 26, 1945 was submitted by the administrator and the intervene in the distribution of Yangco's estate (p. 8, appellant's
legatees named in the will. That project of partition was opposed by brief).
the estate of Luis R. Yangco whose counsel contended that an
intestacy should be declared because the will does not contain an The rule in article 943 is now found in article 992 of the Civil Code
institution of heir. It was also opposed by Atty. Roman A. Cruz, who which provides that "an illegitimate child has no right to inherit ab
represented Juanita Corpus, Pedro Martinez and Juliana de Castro. intestato from the legitimate children and relatives of his father or
Juanita Corpus was already dead when Atty. Cruz appeared as her mother; nor shall such children or relatives inherit in the same
counsel. manner from the illegitimate child".

The probate court in its order of December 26, 1946 approved the That rule is based on the theory that the illegitimate child is
project of partition. It held that in certain clauses of the will the disgracefully looked upon by the legitimate family while the legitimate
testator intended to conserve his properties not in the sense of family is, in turn, hated by the illegitimate child. The law does not
disposing of them after his death but for the purpose of preventing recognize the blood tie and seeks to avoid further grounds of
that "tales bienes fuesen malgastados o desfilpar rados por los resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6).
legatarios" and that if the testator intended a perpetual prohibition
against alienation, that condition would be regarded "como no puesta Under articles 944 and 945 of the spanish Civil Code, "if an
o no existente". It concluded that "no hay motivos legales o morales acknowledged natural or legitimated child should die without issue,
para que la sucession de Don Teodoro R. Yangco sea declarada either legitimate or acknowledged, the father or mother who
intestada." acknowledged such child shall succeed to its entire estate; and if
both acknowledged it and are alive, they shall inherit from it share
On September 20, 1949, the legatees executed an agreement for the and share alike. In default of natural ascendants, natural and
settlement and physical partition of the Yangco estate. The probate legitimated children shall be succeeded by their natural brothers and
court approved that agreement and noted that the 1945 project of sisters in accordance with the rules established for legitimate
partition was pro tanto modified. That did not set at rest the brothers and sisters." Hence, Teodoro R. Yangco's half brothers on
controversy over the Yangco estate. the Corpus side, who were legitimate, had no right to succeed to his
estate under the rules of intestacy.
The trial court in its decision of July 2, 1956 dismissed the action on
the grounds of res judicata and laches. It held that the intrinsic Following the rule in article 992, formerly article 943, it was held that
validity of Yangco's will was passed upon in its order dated the legitimate relatives of the mother cannot succeed her illegitimate
December 26, 1946 in Special Proceeding No. 54863 approving the child. By reason of that same rule, the natural child cannot represent
project of partition for the testator's estate. his natural father in the succession to the estate of the legitimate
grandparent (Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs.
Appellant Corpus contends in this appeal that the trial court erred in Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural
holding (1) that Teodoro R. Yangco was a natural child, (2) that his daughter cannot succeed to the estate of her deceased uncle, a
will had been duly legalized, and (3) that plaintiff's action is barred by legitimate brother of her natural mother (Anuran vs. Aquino and
res judicata and laches. Ortiz, 38 Phil. 29).

In the disposition of this appeal, it is not necessary to resolve Leonardo vs. CA
whether Yangco's will had been duly legalized and whether the
action of Tomas Corpus is barred by res judicata and laches. The From the record, it appears that Francisca Reyes who died intestate
appeal may be resolved by determining whether Juanita Corpus, the on July 12, 1942 was survived by two (2) daughters, Maria and
mother of appellant Tomas Corpus, was a legal heir of Yangco. Has Silvestra Cailles, and a grandson, Sotero Leonardo, the son of her
Tomas Corpus a cause of action to recover his mother's supposed daughter, Pascuala Cailles who predeceased her. Sotero Leonardo
intestate share in Yangco's estate? died in 1944, while Silvestra Cailles died in 1949 without any issue.

To answer that question, it is necessary to ascertain Yangco's On October 29, 1964, petitioner Cresenciano Leonardo, claiming to
filiation. The trial court found that Yangco "a su muerte tambien le be the son of the late Sotero Leonardo, filed a complaint for
sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales ownership of properties, sum of money and accounting in the Court
reconocidos por su padre natural Luis R. Yangco". The basis of the of First Instance of Rizal seeking judgment (1) to be declared one of
trial court's conclusion that Teodoro R. Yangco was an the lawful heirs of the deceased Francisca Reyes, entitled to one-half
acknowledged natural child and not a legitimate child was the share in the estate of said deceased jointly with defendant, private
statement in the will of his father, Luis Rafael Yangco, dated June respondent herein, Maria Cailles, (2) to have the properties left by
14, 1907, that Teodoro and his three other children were his said Francisca Reyes, described in the complaint, partitioned
acknowledged natural children. between him and defendant Maria Cailles, and (3) to have an
accounting of all the income derived from said properties from the
On the other hand, the children of Ramona Arguelles and Tomas time defendants took possession thereof until said accounting shall
Corpus are presumed to be legitimate. A marriage is presumed to have been made, delivering to him his share therein with legal
have taken place between Ramona and Tomas. Semper praesumitur interest.
pro matrimonio. It is disputably presumed "That a man and a woman
deporting themselves as husband and wife have entered into a lawful Answering the complaint, private respondent Maria Cailles asserted
contract of marriage"; "that a child born in lawful wedlock, there being exclusive ownership over the subject properties and alleged that
no divorce, absolute or from bed and board, is legitimate", and "that
things have happened according to the ordinary course of nature and 100
the ordinary habits of life" (Sec. 5[z], [bb] and [cc], Rule 131, Rules of
Court).

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