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CHAPTER 1GENERAL PROVISIONS

ART. 774. Succession is a mode of acquisiion !" #i$ue of%&ic& &e '$o'e$"( $i)&s and o!*i)aions o &e e+en of&e #a*ue of &e in&e$iance( of a 'e$son a$e $ansmied&$ou)& &is dea& o ano&e$ o$ o&e$s ei&e$ !" &is %i** o$!" o'e$aion of *a%.

The Code has simplified the concept of succession and treatsit simply as one of the 7 Modes of Acquiring Ownership asenumerated in Art712 of the NCC.

7 ,O-ES O AC/0IRING ONERSHIP1. Occupation2. ntellectual Creation!. "aw#. $onation%. &state and ntestate 'uccession(. Tradition7. )rescription

O*erlap of Codal $efinition with Art77(

Article 77# tal+s of ,property- rights and oligations to thee/tent of the *alue of the inheritance.0

Article 77( tal+s of the ,inheritance0 as including ,all theproperty- rights and oligations of a person which are note/tinguished y his death.0

or clarity and etter correlation- )rof. alane opines thatArt77# should rather read3

,'uccession is a mode of acquisition y *irtue ofwhich the inheritance of a person is transmitted throughhis death to another or others either y his will or yoperation of law.0

And the inheritance which is transmitted through a

person4s death is defined y Article 77( to include ,all theproperty- rights and oligations of a person which are note/tinguished y his death.0

5hat are Transmitted y 'uccession6

Only Transmissile ights and Oligations.

8eneral ule 9 if the right or oligation is strictly personal:intuitu personae;- it is intransmissile< otherwise it may etransmitted.

ule egarding )ecuniary Oligations

A literal construction of Art77# appears to imply thatmoney oligations of the deceased would pass to theheirs- to the e/tent that they inherit from him.

'eemingly- this article mandates that the heirs

recei*e the estate- and then pay off the creditors.

=owe*er- )hilippine procedural law- as influenced y thecommon>law system- lays down a different method for thepayment of money dets- as found in ules ?? to @ of theules of Court. I is on*" ATER &e de!s a$e 'aid &a&e $esidue of &e esae is dis$i!ued amon) &esuccesso$s.

ule @- 'ec1 pro*ides for the 5hen the Order for the$istriution of esidue is made.

According to the rule- when the dets- funeral charges ande/penses of administration- the allowance to the widowand the inheritance ta/ ha*e all een paid- that is the onlytime that the court shall assign the &'$B& of the estate

to persons entitled to it. The rule also pro*ides that there shall e no distriution

until the payment of the oligations enumerated ao*e-ha*e een made or pro*ided for. =owe*er- if thedistriutees gi*e a ond for the payment of the saidoligations within such time and of such amount as fi/edy the court- the distriution may e allowed.

In ou$ s"sem &e$efo$e( mone" de!s a$e( '$o'e$*"s'ea2in)( no $ansmied o &e &ei$ no$ 'aid !" &em. T&e

esae 'a"s &em and i is on*" %&a is *ef afe$ &e de!sa$e 'aid 3$esidue &a a$e $ansmied o &e &ei$s.

ustice " eyes oser*ed that )hilippine rules of'uccession Mortis Causa proceed from an imperfect lendingof ! 'ystems with Contrasting )hilosophies 9

1. GERMANIC CONCEPT OF UNIVERSAL HEIR

=eir directly and immediately steps into the shoes of

the deceased upon the latter4s death

At one single occasion :uno ictu;

5ithout need of any formality

&n mass

Automatic 'uDecti*e No*ation

. FRANCO!SPANISH S"STEM

Acquisition of estate y uni*ersal title ut only upon

acceptance y the heir at any time- with retroacti*eeffect.

Acceptance may e made any time e/cept when the

creditors or the court requires it e done within acertain time.

This is the system followed y the NCC- y ha*ing

the following features3

aE Bni*ersality of )roperty ights and OligationsE Transmitted from the moment of deathcE &n loc- as an entire massdE Transmitted e*en efore Dudicial recognition of

heirship.

#. ANGLO!AMERICAN $COMMON LA%& S"STEM

&state must first e liquidated- assets marshaled and

the dets paid or settled under Dudicial super*ision-y an inter*ening trustee or personal representati*e:administrator or e/ecutor; efore the net residue ista+en o*er y the successor.

This is the system followed y the ules of Court- in

that3aE &/ecutor or administrator has possession and

management of the estate as long as necessaryfor the payment of dets and e/penses ofadministration- with authority to e/ercise theright of disposition.

E 'ection ! ule ?7 9 action to reco*er title orpossession of lands in the hands of the e/ecutoror administrator can e maintained y the heironly upon the order of the Court assigning suchland to the heir or de*isee.

cE 'ection 1 ule @ 9 heirs may reco*er theirshare only upon3

)ayment of dets- e/penses and ta/es

=earing conducted y the court

Court assigns the residue of the estate

to the heirs.

As a result of the lending of these ! systems- " eyes saysthat we are thus faced with di*ergent- if not contradictoryprinciples.

$o the successors acquire the 5=O"& of thetransmissile assets and liailities of the decedent6

Art77# 9 y *irtue of succession the property-

rights and oligations- to the e/tent of the *alueof the inheritance of a person- are transmitted yand at t'e (o(ent o) 'is *eat'- implying atransfer at that instant of the tota+it, oruni*ersality of assets and liailities.

$o the successors only acquire the &'$BBM remaining

after payment of the dets- as implied y the ules ofCourt6

Art1%7 9 within ! days a)ter t'e court 'as

issue* an or*er )or t'e *istri-ution o) t'e estateinaccordance with the oC- the heirs- de*iseesand legatees shall signify to the court ha*ing

Durisdiction- whether t'e, accept or repu*iate theinheritance.


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The order of distriution under the oC is issued

only after the dets- ta/es and administratione/penses ha*e een paid< hence it is argualethat the acceptance can no longer refer to assetsalready disposed of y the administrator- utmust e limited to the net residue.

ut if title *ests in the heir as of the death of the

decedent then the acceptance of the heirecomes entirely superfluous- and the law shouldlimit itself to regulating the effects the effects of arepudiation y an heir or legatee- and itsretroacti*e effect.

Or do the successors acquire only the NAF&$ TT"& atthe death of the predecessor- ut with possession orenDoyment *ested in the administrator or personalrepresentati*e until after settlement of the claims againstthe estate6

&'B"T of these di*ergent rules 9 Creditors must now pursuetheir claims during the settlement proceedings and not againstthe heirs indi*idually.

ART. 775. In &is Ti*e( 6deceden is &e )ene$a* e$m a''*ied

o &e 'e$son %&ose '$o'e$" is $ansmied &$ou)&succession( %&e&e$ o$ no &e *ef a %i**. If &e *ef a %i**(&e is a*so ca**ed &e esao$.

$ecedent 9 general term- person whose property is transmitted Testator 9 specific term- person who transmits his property

*ia a will.

t is unfortunate that the Code does not use the term ,ntestate0to refer to a decedent who died without a will- This would ha*epre*ented the amiguity now inherent in the term ,decedent0

ART. 778. T&e in&e$iance inc*udes a** &e '$o'e$"( $i)&s ando!*i)aions of a 'e$son %&ic& a$e no e+in)uis&ed !" &isdea&.

O*erlap of Codal $efinition with Art77(

Article 77# tal+s of ,property- rights and oligations to thee/tent of the *alue of the inheritance.0

Article 77( tal+s of the ,inheritance0 as including ,all theproperty- rights and oligations of a person which are note/tinguished y his death.0

or clarity and etter correlation- )rof. alane opines thatArt77# should rather read3

,'uccession is a mode of acquisition y *irtue ofwhich the inheritance of a person is transmitted throughhis death to another or others either y his will or yoperation of law.0

And the inheritance which is transmitted through a person4sdeath is defined y Article 77( to include ,all the property-rights and oligations of a person which are not e/tinguishedy his death.0

ART. 777. T&e $i)&s o &e succession a$e $ansmied f$om&e momen of &e dea& of &e deceden.

Time of Gesting of 'uccessional ight

)rof. alane says the terminology used in this article is,infelicitous0 ecause the right to the succession is nottrans(itte*< ut rather este*.

To say that it is transmitted upon death implies that eforethe decedent4s death- the right to the succession waspossessed y the decedent :which is asurd;.

To say that it *ests upon death implies that efore thedecedent4s death the right was merely inc'oate :which iscorrect;.

THE LA PRES0,ES THAT THE PERSON S0CCEE-ING 91. Has a ri/'t to succee* -,

aE "egitime :compulsory succession;-E 5ill :testamentary succession;- orcE "aw :intestate succession;

. Has t'e +e/a+ capacit, to succee*0 an*

#. Accepts t'e successiona+ portion

T&e #esin) of &e $i)& occu$s immediae*" u'on &edeceden:s dea&; i.e. %i&ou a momen:s ine$$u'ion.rom this principle- the following consequences flow 9

1. T'e +a in )orce at t'e ti(e o) t'e *ece*ent2s *eat' i++*eter(ine 'o t'e 'eirs s'ou+* -e

New Ci*il Code 9 August !- 1@%

. Oners'ip passes to t'e 'eir at t'e er, (o(ent o)*eat'0 'o t'ere)ore0 )ro( t'at (o(ent ac3uires t'eri/'t to *ispose o) 'is s'are.

#. T'e 'eirs 'ae t'e ri/'t to -e su-stitute* )or t'e*ecease* as part, in an action t'at suries.

ecause the heir acquires ownership at the

moment of death and ecome parties in interest.

t should e emphasiHed that the operation of Art. 777 is at the

*ery moment of the decedent4s death- meaning &e$ansmission !" succession occu$s a &e '$ecise momenof dea& and &e$efo$e &e &ei$( de#isee( o$ *e)aee is*e)a**" deemed o &a#e acqui$ed o%ne$s&i' a &amomen( e#en if( 'a$icu*a$*" in &e &ei$:s case( &e %i**)ene$a**" no 2no% &o% muc& &e %i** !e in&e$iin) and%&a '$o'e$ies &e %i** u*imae*" !e $ecei#in)( and no a&e ime of dec*a$aion of &ei$s o$ 'a$iion o$ dis$i!uion.

ART. 77@? Le)a* o$ Inesae( o$

>? ,i+ed

ART. 77B. Tesamena$" succession is &a %&ic& $esu*s f$om&e desi)naion of an &ei$( made in a %i** e+ecued in &efo$m '$esc$i!ed !" *a%.

ART. 7


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fifth of their present property- and with respect to theirfuture property- only in the e*ent of death- to thee/tent laid down y the pro*isions of this Codereferring to testamentary succession.

4onations propter nuptiasof future property- made

y one of the future spouses to the other- too+ effect(ortis cause- and had only to e done in themarriage settlements- which were go*erned only ythe 'tatute of rauds.

t was the only instance of Contractual 'uccession in

our ci*il law.

This has een e+i(inate* y the amily Code in

Article ?# paragraph 23

,$onations of future property shall e go*ernedy the pro*isions on testamentary succession and theformalities of wills.0

'ince under the pro*ision- any donation of future

property etween the affianced couple is to ego*erned y the rules of testamentary successionand the forms of wills- contractual succession nolonger e/ists in this Durisdiction.

'uch a donation ecomes an ordinary case of

testamentary succession.

O0R DIN-S O S0CCESSION ACCOR-ING TOI,PORTANCE 3P$of. a*ane

1. COMPULSOR"

'uccession to the legitime

)re*ails o*er all other +inds

. TESTAMENTAR" $Art. 556&

'uccession y will

#. INTESTATE

'uccession in default of a will

7. MI8E4 $Art. 59:& Not a distinct +ind really- ut a comination of

any two or all of the first three.

ART. 7


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the ac+nowledgment of a natural child or the order that thepatria potestas of the widow shall continue after herremarriage- can e gi*e effect e*en without proating the will.

CCHARACTERISTICSHARACTERISTICS OO ILLSILLS

1. PUREL" PERSONAL

Articles 7?#- 7?% and 7?7

. FREE AN4 INTELLIGENT

Article ?!@

The testator4s consent should not e *itiated y

the causes mentioned in Article ?!@paragraphs 2>( on nsanity- Giolence-ntimidation- Bndue nfluence- raud andMista+e.

#. SOLEMN AN4 FORMAL

Articles ?#>?1# and ?2>?21

The requirements of form depend on whether

the will is attested or holographic.

Articles ?%>?? and ?2>?21 go*ern attested

wills. Articles ?1>?1# go*ern holographic wills.Article ?# applies to oth.

7. REVOCA;LE AN4 AM;ULATOR" Article ?2?

ma+in is a ermitted statute.

Kuestions

5ould a document merely appointing an e/ecutor- notcontaining any dispositi*e pro*ision- ha*e to comply withthe formal requirements of a will in order to e effecti*e65ould such a document ha*e to e proated6

ustice =ofilena says NO- ecause there is no

disposition and such appointment would not eunder the category of a will. Therefore- the formalrequirements of a will do not apply.

5ould a document containing only a disinheriting clauseha*e to e in the form of a will and e proated6 :Article

@1(; I&'. According to Art@1(- disinheritance can e

effected only through a will wherein the legalcause therefore shall e specified.

A *alid disinheritance is in effect a disposition of

the property of the testator in fa*or of those whowould succeed in the asence of the disinheritedheir. Bnless the will is proated- thedisinheritance cannot e gi*en effect.

ART. 7in/ or t'e E?ercise o)t'e 4isposin/ Poer@ T'e )) are non!*e+e/a-+e

1. The designation of heirs- de*isees or legatees2. The duration of efficacy of such designation- including

such things as conditions- terms- sustitutions

ART. 7


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ART. 7


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the decedent4s death :which is more logical ecause that iswhen the will ta+es effect according to Article 777;.

llustration 9 J e/ecutes a will in 1@?% containing a legacy3 ,gi*e to M all my shares in ).0 The testator dies in 1@@-owning at the time of his death ten times as many ) sharesas he did when he made the will.

Bnder Article 7@!- the shares acquired after the will

was e/ecuted are NOT included in the legacy.

Article 793 therefore e!arts fro" the coal !hiloso!h# ofArticles 77$ an 77% an constitutes an E&CE'TION to theconce!t of succession as lin(e to eath an renerele)all# effecti*e b# eath.

)rof. alane suggests the pro*isions e reworded as3,)roperty acquired after the ma+ing of a will passes thereyunless the contrary clearly appears from the words or theconte/t of the will.0

n the meantime- it is suggested that a lieral application of thearticle e allowed.

Can the word ,e/pressly0 in this article e interpreted tomean ,clearly0 e*en if it might e stretching a point6

ART. 7B4. E#e$" de#ise o$ *e)ac" s&a** co#e$ a** &e ine$es

%&ic& &e esao$ cou*d de#ice o$ !equea& in &e'$o'e$" dis'osed of( un*ess i c*ea$*" a''ea$s f$om &e%i** &a &e inended o con#e" a *ess ine$es.

This article should e read together with Art@2@- whichpro*ides that ,if the testator- heir- or legatee owns only a partof or an interest in the thing equeathed- the legacy or de*iseshall e understood limited to such part or interest- unless thetestator e/pressly declares that he gi*es the thing in itsentirety.

GENERAL R0LE9 in a legacy or de*ise the testator gi*ese/actly the interest he has in the thing.

&JC&)TON' 9 he can gi*e a less interest :Art7@#; or a greaterinterest :Art@2@; than he has.

n the latter case- if the person owning the interest to eacquired does not wish to part with it- the solution in

Art@!1 can e applied wherein the legatee or de*isee shalle entitled only to the B'T GA"B& O T=& NT&&'Tthat should ha*e een acquired.

RECAP O THE R0LES ON INTERPRETATIONAN- CONSTR0CTION O ILLS

2. n case of dout- testacy is preferred anddisposition should e interpreted in manner whichwould ma+e it operati*e.

!. Two +inds of Amiguities

"atent 9 imperfect description or when no

person or property e/actly answers todescription.

)atent 9 ased on the face of the will as to

the application of any of its pro*isions

#. n case of amiguity- may resort to any e*idence-e*en e/trinsic e*idence- ut may not resort tooral declarations of the testator as to hisintention.

%. 5ords of a will shall e ta+en in their ordinaryand grammatical sense- unless3

Another sense or meaning is clearly

intended to e used- and

That other sense or meaning can e

ascertained

(. Technical words shall e ta+en in technicalsense- e/cept3

5hen conte/t clearly indicates otherwise 5ill was drawn solely y the testator and he

was not acquainted with the technicalmeaning of such word.

7. 5ords are to recei*e interpretation which will gi*eit some effect.

?. n*alidity of one disposition in a will does notmean the other dispositions are also in*alid.

ut in*alidity of one pro*ision affects the

other if it is to e presumed that the testatorwould not ha*e made such other dispositionif the first in*alid disposition had not eenmade.

@. )roperty that is acquired y the testator after the

will was e/ecuted shall only e transmitted alongwith those in the will- if the testator e/presslystates in the will that such is his intention.

1. A de*ise of legacy shall transmit the whole e/tentof the testator4s interest in the property disposed.

&/cept when it clearly appears that the

testator intended to con*ey a less interest.

ART. 7B5. T&e #a*idi" of a %i** as o is fo$m de'ends u'on&e o!se$#ance of &e *a% in fo$ce a &e ime i is made.

ASPECTS O VALI-ITF O ILLSA. ETRINSIC 9 $efe$s o &e $equi$emen of fo$m

fo$ma* #a*idi"1. Goernin/ +a as to TIME

a. ilipinos 9 law in force when the will was e/ecuted:Art7@%;

. oreigners 9 same rile. The assumption here isthat the will is eing proated in the)hilippines.

. Goernin/ +a as to PLACE

ilipinos or oreignersa. "aw of citiHenship. "aw of domicilec. "aw of residenced. "aw of place of e/ecution- ore. )hilippine law

Articles ?1%>?17 > ules of formal *aliditya. ilipino Aroad > According to the law in the

country in which he may e and may eproated in the )hilippines

. Alien aroad > =as effect in the )hilippines ifmade according to3 "aw of place where heresides- "aw of his own country or )hilippinelaw


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c. Alien in the phils. > Galid in )hils. as if e/ecutedaccording to )hil. laws- if3 Made according tolaw of country which he is a citiHen or suDect-and May e pro*ed and allowed y law of hisown country.

. INTRINSIC 9 $efe$s o &e su!sance of &e'$o#isions su!sani#e #a*idi"

1. Goernin/ +a as to TIMEa. ilipinos 9 law at the time of death- in

connection with Art22(!.. oreigners 9 depends on their personal law

:Art1(- par2 and Art1!@;

. Goernin/ +a as to PLACEa. ilipinos 9 )hilippine law :Art1( par2 and

Art1!@;. oreigners 9 their national law :Art1( par2

and Art1!@;

Art22(! pro*ides that ,ights to the inheritance of a personwho died- with or without a will- -e)orethe effecti*ity of thisCode :August !- 1@%;- shall e go*erned y the Cii+ Co*eo) 19960 -, ot'er preious +as0 an* -, t'e Ru+es o) Court.The inheritance of those who- with or without a will- *ie a)terthe eginning of the effecti*ity of this Code- shall eadDudicated and distriuted in accordance with this ne -o*,o) +as an* -, t'e Ru+es o) Court< ut the testamentarypro*isions shall e carried out insofar as they may epermitted y this Code. Therefore- +e/iti(es0 -etter(ents0+e/acies an* -e3uests s'a++ -e respecte* 'oeer0 t'eira(ount s'a++ -e re*uce* if in no other manner can e*erycompulsory heir e gi*en his full share according to this Code.0

Art1( par2 pro*ides that ,intestate and testamentarysuccessions- oth with respect to the order of succession andto the amount of successional rights and to the intrinsic *alidityof testamentary pro*isions- shall e regulated y the nationa++a o) t'e person 'ose succession is un*er consi*eration-

whate*er may e the nature of the property and regardless ofthe country wherein said property may e found.0

5hile Art1!@ pro*ides that ,Capacity to 'ucceed is go*ernedy the +a o) t'e nation o) t'e *ece*ent.0

Subsection + Testa"entar# Ca!acit#An Intent

ART. 7B8. A** 'e$sons %&o a$e no e+'$ess*" '$o&i!ied !" *a%ma" ma2e a %i**.

ART. 7B7. Pe$sons of ei&e$ se+ unde$ ei)&een "ea$s of a)ecanno ma2e a %i**.

ART. 7B?1 lay down the rules on testamentary capacity.

Testamentary Capacity 9 testa(enti )actiotesta(enti)acciDn actie- the legal capacity to ma+e a will.

5ho has testamentary capacity6 All NATBA" persons-unless disqualified y law. uridical persons are NOTgranted testamentary capacity.

-IS/0ALIIE- PERSONS1. THOSE UN4ER 19 $ART565&

Bnder &O2@2- the Administrati*e Code of 1@?7-

which too+ effect on No#em!e$ @4( 1B


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1. 5hen testator- one (ont' or +ess -e)ore t'ee?ecution o) t'e i++0 as pu-+ic+, >non to -e insane

2. 5hen the testator e?ecute* t'e i++ a)ter -ein/ p+ace*un*er /uar*ians'ip or or*ere* co((itte*- in eithercase- for insanity under ules @! and 11 of the oC-and efore said order has een lifted.

The time for determining mental capacity

time of e?ecution o) t'e i++and no other temporal criterionis to e applied

ART. dispositi*e paragraphs after the testamentarydispositions- one can refer to two +inds of end 9

1. )hysical &nd 9 where the writing stops2. "ogical &nd 9 where the last testamentary

disposition ends


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'igning at either the physical end or logical endis equally permissile. The non>dispositi*eportions are not essential parts of the will.

Si/nin/ -e)ore t'e en* ina+i*ates not on+, t'e*ispositions t'at co(e a)ter0 -ut t'e entire i++0-ecause t'en one o) t'e statutor, re3uire(entsou+* not 'ae -een co(p+ie* it'.

'8NN8 N T=& )&'&NC& O 5TN&''&'

Actual seeing is not required- ut the aility tosee each other :the testator and the witnesses;y merely casting their eyes in the properdirection.

+- Atteste an subscribe b# at least three creible0itnesses in the !resence of the testator an of oneanother-

Two distinct things are required of the witnesses

here 9aE Attesting 9 which is the act of witnessingE 'uscriing 9 which is the act of signing their

names in the proper places of the will

oth must e done.

May the witness- li+e the testator- affi/ histhummar+ in lieu of writing his name6 Art?2requires a witness to e ale to read and write- utthis does not answer the query definiti*ely. The pointis deatale.

'igning in the presence of the testator and of one

another > Actual seeing is not required- ut the ailityto see each other :the testator and the witnesses; ymerely casting their eyes in the proper direction.

3- Testator/ or his a)ent/ "ust si)n e*er# !a)e/ e.ce!tthe last/ on the left "ar)in in the !resence of the0itnesses

The last page need not e signed y the testator on

the margin ecause- eing the page where the endof the will is- it already contains the testator4ssignature.

There is a Mandatory and a $irectory part to this

requirement 9aE MAN$ATOI 9 the signing on e*ery page

in the witnesses4 presenceE $&CTOI 9 place of the signing- the left

margin- the signature can e affi/edanywhere on the page.

'igning in the presence > Actual seeing is not

required- ut the aility to see each other :thetestator and the witnesses; y merely casting theireyes in the proper direction

$- The 0itnesses "ust si)n e*er# !a)e/ e.ce!t the last/on the left "ar)in in the !resence of the testator anof one another-

Order of 'igning 9 immaterial- pro*ided e*erything is

done in a single transaction. =owe*er- if theaffi/ation of the signatures is done in se*eraltransactions- then it is required for *alidity that theT&'TATO affi/ his signature ahead of thewitnesses.

- All !a)es nu"bere correlati*el# in letters on theu!!er !art of each !a)e-

Mandatory and $irectory part

aE MAN$ATOI 9 pagination y means of a

con*entional system. The purpose is topre*ent insertion or remo*al of pages

E $&CTOI 9 pagination in letters on theupper part of each page.

%- Attestation clause/ statin)2a Nu"ber of !a)es of the 0illb ,act that the testator or his a)ent uner his

e.!ress irection si)ne the 0ill an e*er#!a)e thereof/ in the !resence of the 0itnesses

c The fact that the 0itnesses 0itnesse ansi)ne the 0ill an e*er# !a)e thereof in the

!resence of the testator an of one another-

The attestation clause is the affair of witnesses

therefore- it need not e signed y the testator.

The signatures of the witnesses must e at the

OTTOM of the attestation clause.

f the entire document consists only of 2 sheets- the

first containing the will and the second the attestation

clause- there need not e any marginal signatures atall :Aangan *. Aangan;

The fact that the attestation clause was written on a

separate page has een held to e a matter of minorimportance and apparently will not affect the *alidityof the will.

7- Ac(no0le)e"ent before a notar# !ublic-

Co*e *oes not re3uire t'at t'e si/nin/ o) t'e

testator0 itnesses an* notar, s'ou+* -eacco(p+is'e* in one sin/+e act.

All that is required in this article is that the testator

and witnesses should a*ow to the notary theauthenticity of their signatures and the *oluntarinessof their actions in e/ecuting the testamentary

disposition. :a*ellana *. "edesma;aE atio 9 Certification of ac+nowledgement need

not e signed y notary in the presence oftestator and witnesses.

E Art?( does not require that testator andwitnesses must ac+nowledge on the same daythat it was e/ecuted.

cE "ogical nference 9 neither does the articlerequire that testator and witnesses mustac+nowledge in one another4s presence. fac+nowledgement is done y testator andwitness separately- all of them must retain theirrespecti*e capacities until the last one hasac+nowledged.

Notar, cannot -e counte* as one o) t'e attestin/

itnesses.

A))i?in/ o) *ocu(entar, sta(p is not re3uire* )or

a+i*it,.

'ome $iscrepancies

)ar1 Art?% 9 No statement that the testator must sign inthe presence of the witnesses

)ar2 Art?% 9 No statement that the testator and thewitnesses must sign e*ery page in one another4spresence.

ut these two things are required to e stated in

the attestation clause. Conclusion is that theyshould e complied with as requirements.

Attestation clause is not required to state that the agentsigned in the testator4s presence > a circumstancemandated y the 1stand 2ndparagraphs of the article.

ndication of $ate 9 there is no requirement that an attestedwill should e dated- unli+e a holographic will.

ART.


10/78

$oes this mean the 2 persons must perform each

tas+ in turn6

or lind Testator 9 to e read to him twice- once y oneof the suscriing witnesses- and another time y thenotary.

Art9:9 is MAN4ATOR"

f art?? is mandatory- y analogy Art?7 is alsomandatory. ailure to comply with either would result in

nullity and denial of proate.

T'e re3uire(ent 'as -een +i-era++, app+ie*0 SC *ec+arin/su-stantia+ co(p+iance to -e su))icient.

Applies not only to lind testators ut also to those who-for one reason or another- are incapale of reading theirwills.

'ustantially complied with when documents were readaloud to the testator with each of the ! instrumentalwitnesses and the notary following the reading with theirrespecti*e copies.

;ur*en o) proo) is upon t'e proponent o) t'e i++ t'at t'especia+ re3uire(ent o) t'e artic+e as co(p+ie* it'. At t'esa(e ti(e0 t'ere is no re3uire(ent t'at co(p+iance it' t'e

re3uire(ent -e state* eit'er in t'e i++ or t'e attestationc+ause.

ART.


11/78

"oss of the holographic will entails loss of the only mediumof proof while loss of the ordinary will lea*es thesuscriing witnesses a*ailale to authenticate.

n the case of ordinary wills- it would e more difficult tocon*ince ! witnesses plus the notary to delierately lie.

Considering the holographic will may consist of 2>! pagesand only one of them need e signed- the sustitution ofthe unsigned pages may go undetected.

n the case of a lost ordinary will- the ! suscriingwitnesses would e testifying as to a ACT which they

saw- namely the act of the testator of suscriing the will.5hereas in the case of a lost holographic will- thewitnesses would testify as to their O)NON of thehandwriting which they allegedly saw- an opinion whichcannot e tested in court nor directly contradicted y theoppositors ecause the handwriting itself is not at hand.

&JC&)TON 9 may e pro*ed y a photographic orphotostatic copy- e*en a mimeographed or caron copy- or yother similar means- if any- wherey the authenticity of thehandwriting of the deceased may e e/hiited and testedefore the proate court.

ART. ?17 for Aliens- Art1%for ilipinos

2. "aw of place of &/ecution 9 Art17!. "aw of $omicile 9 Art?1( for aliens aroad- applying to

aliens in the )hilippines and to ilipinos yanalogy

#. "aw of esidence > Art?1( for aliens aroad- applying toaliens in the )hilippines and to ilipinos yanalogy

%. )hilippine "aw 9 Arts ?1(>?17 for aliens- Art1% forilipinos y analogy

ART.


12/78

ONT 5"" 9 one document which constitutes the wills of twoor more indi*iduals.

f there are separate documents- each ser*ing as oneindependent will e*en if written on the same sheet- they are not

Doint wills prohiited y the article.

eason for )rohiition of oint 5ills1. "imitation on modes of re*ocation

One of the testators would not e ale to destroy the

document without also re*o+ing it as the will of theother testator- or in any e*en- as to the latter- theprolem of unauthoriHed destruction would come in

2. $iminution of testamentary secrecy!. $anger of undue influence#. $anger of one testator +illing the other

5hen a will is made Dointly or in the same instrument-

the spouse who is more dominant is liale to dictatethe terms of the will for his or her own enefit or forthat of the third persons whom he or she desires tofa*or.

5here the will is not only Doint ut reciprocal- either

one of the spouses who may happen to eunscrupulous- wic+ed- faithless or desperate-+nowing as he or she does the terms of the willwherey the whole property of the spouses oth

conDugal and paraphernal goes to the sur*i*or- maye tempted to +ill or dispose of the other.

n 8ermany- Doint wills are allowed ut only etween spouses.

ART. @? T&ose %&o &a#e !een con#iced of fa*sificaionof a documen( 'e$Ju$" o$ fa*se esimon".

'J KBA"CATON' O 5TN&''&'1. Of 'ound Mind2. At "east 1? years of age!. Not lind- $eaf or $um#. Ale to read and write%. $omiciled in the )hilippines(. Must not ha*e een con*icted of falsification of a

document- perDury or false testimony.

As to applicaility to wills e/ecuted aroad- testator may resortto either e/ecuting a holographic will or following the law of theplace of e/ecution- if no such witnesses are readily a*ailale.

Competence *. Crediility

The competency of a person to e an instrumental witnessto a will is determined y the statute under Arts ?2>?21-whereas his crediility depends on the appreciation of his

testimony and arises from the elief and conclusion of theCourt that said witness is telling the truth.

ART.


13/78

Codicil *. 'usequent 5ill

Codicil 9 e/plains- adds to or alters a disposition in a priorwill.

'usequent will 9 ma+es independent and distinctdispositions.

ut the distinction is purely academic ecause Art?2(requires that the codicil e in the form of a will anyway.

Must the Codicil conform to the form of the will to which itrefers6 NO. A holographic will can ha*e an attested codicil and*ice *ersa. oth may also e of the same +ind.

ART. )hilippine domiciliary. Curious that the law departs from the nationality theory and

adopts the domiciliary theory.

ART. @? " some %i**( codici*( o$ o&e$ %$iin) e+ecued as'$o#ided in case of %i**s; o$

>? " !u$nin)( ea$in)( cance*in)( o$ o!*ie$ain) &e %i**%i& &e inenion of $e#o2in) i( !" &e esao$&imse*f( o$ !" some o&e$ 'e$son in &is '$esence(and !" &is e+'$ess di$ecion. If !u$ned( o$n(cance**ed( o$ o!*ie$aed !" some o&e$ 'e$son(

%i&ou &e e+'$ess di$ecion of &e esao$( &e %i**ma" si** !e esa!*is&ed( and &e esae dis$i!ued inacco$dance &e$e%i&( if is conens( and duee+ecuion( and &e fac of is unau&o$iKeddes$ucion( cance**aion( o$ o!*ie$aion a$eesa!*is&ed acco$din) o &e Ru*es of Cou$.

,O-ES O REVODING A ILL 0N-ERPHILIPPINE LA

1. ;" OPERATION OF LA%

May e total or partial

&/amples of re*ocation y operation of law

aE )reterition 9 Art?%#E "egal 'eparation 9 Art(! par# CcE Bnworthiness to succeed 9 Art1!2dE Transformation- alienation or loss of the oDect

de*ised or equeathed 9 Art@%7eE udicial demand of a credit gi*en as a legacy >

Art@!(

. ;" A SU;SEUENT %ILL OR CO4ICIL

equisites for *alid re*ocation y a susequent

instrument 9aE 'usequent instrument must comply with

formal requirements of a willE Testator must possess testamentary

capacitycE 'usequent instrument must either contain

an e/press re*ocatory clause or e

incompatile with the prior willdE 'usequent instrument must e proated to

ta+e effect

e*ocation y susequent will may e Total or

)artial- &/press or mpliedaE Total 9 whole prior instrument is re*o+edE )artial 9 only certain pro*isions or

dispositions of the prior instrument isre*o+ed

cE &/press 9 re*ocation of prior instrument isstated in the susequent instrument

dE mplied 9 incompatiility etween pro*isionsof prior and susequent instruments.

#. ;" PH"SICAL 4ESTRUCTION

our ways to destroy 9aE urningE TearingcE CancellingdE Oliterating

)hysical destruction may e done y the testator

personally or y another person acting in hispresence and y his e/press direction.


14/78

BnauthoriHed if without e/press direction oftestator. ut what if with e/press direction utnot in his presence6

Arguale. May say that it is authoriHed andtherefore the destroyed instrument is re*o+edecause of the intent and consent of thetestator to re*o+e and destroy- and that thelaw does not pro*ide that without the testator4spresence- destruction will ecomeunauthoriHed.

On the other hand- it may e argued that thetestator4s presence is required ecause at anytime during the actual urning- destroying- etc.he may put a stop to the destruction if hechanges his mind- and that is precisely whyhis presence is required6

&ffect of unauthoriHed destruction 9 5ill may still e

pro*ed as lost or destroyed :Art?! NCC and ule7( oC;

=owe*er- this is possile only if the will isattested< if the will is holographic- it cannot eproated if lost- e*en if the loss or destructionwas unauthoriHed- unless a copy sur*i*es.

&lements of a Galid e*ocation y )hysical$estruction

aE CO)B' 9 physical destruction itself< theremust e e*idence of physical destruction

E ANMB' 9

Capacity and intent to re*o+e

Testator must ha*e completede*erything he intended to do

oth corpus an animus must concur.

"oss or una*ailaility of a will may- under certain

circumstances- gi*e rise to the presumption that ithad een re*o+ed y physical destruction

5here a will which cannot e found is shown

to ha*e een in the possession of the testatorwhen last seen- the presumption isin theasence of other competent e*idence- that thesame was cancelled or destroyed.

'ame presumption arises where it is shownthat testator had ready access to the will and itcannot e found after his death.

ut such presumptions may e o*ercome yproof that the will was not destroyed y thetestator with intent to re*o+e it.

ART.


15/78

re*o+ing the former. =owe*er- the second will was foundto e not e/ecuted with all the necessary requisites toconstitute sufficient re*ocation. The court then held thatthe intention of re*o+ing the will was manifest from the factthat the testator was an/ious to withdraw or change thepro*isions he had made in his first will. Therefore- thecourt concluded that original will presented ha*ing eendestroyed with ani(o reocan*i- the original will and lasttestament cannot e proated and was effecti*elyre*o+ed.

n Molo- re*ocation of the prior will was not allowedecause the court inferred that the testator meantre*ocation to depend on the *alidity of the new will- so inthat case t'e ru+e on *epen*ent re+atie reocation asapp+ie*.

=owe*er- in $e "eon- court held that the testator4s intentto re*o+e the prior will was not dependent on the *alidity ofthe susequent will so e*en if the second will was *oidand insufficient as re*ocation- the prior will was stillre*o+ed ecause such re*ocation was not dependent onthe *alidity of the second will :6QQ;

ART. ?1?< ?1>?1#< ?1?>?1@.

RECAP O OR,AL RE/0IRE,ENTS

O A ILL

1. ATTESTE-OR-INARF ILLa. Must e in writing

. &/ecuted in a language or dialect +nown to testator

c. 'uscried y the testator or his agent in hispresence and y his e/press direction at the endthereof- in the presence of the witnesses

d. Attested and suscried y at least ! credilewitnesses in presence of the testator of oneanother

e. Testator- or his agent- must sign e*ery page-e/cept the last- on the left margin in the presenceof the witnesses

f. The witnesses must sign e*ery page- e/cept the

last- on the left margin in the presence of thetestator and of one another.

g. All pages numered correlati*ely in letters on theupper part of each page.

h. Attestation clause- stating3aE Numer of pages of the willE act that the testator or his agent under his

e/press direction signed the will and e*erypage thereof- in the presence of the witnesses

cE act that the witnesses witnessed and signedthe will and e*ery page thereof in thepresence of the testator and of one another.

i. Ac+nowledgement efore a notary pulic y thetestator and the witnesses.

D. =andicapped Testator

aE $eaf or deaf>mute 9 personally read the will ifale to do so- otherwise designate 2 personsto read and communicate it to him.

Elind 9 read to him twice- once y asuscriing witness and another time y thenotary efore whom it is ac+nowledged.


16/78

RECAP O OR,AL RE/0IRE,ENTSO A ILL

+. $efects and imperfections in form of attestation andlanguage used shall not ma+e the will in*alid ifthere is sustantial compliance with requirementsof Art?%.

l. "aw to e followeda. ilipino aroad. Alien aroad

c. Alien in the )hilippinesm. )rohiition on Doint wills- especially y ilipinose*en if e/ecuted in foreign country allowing Dointwills.

n. 5itnesses must possess all the qualifications inArt?2 and none of the disqualifications in Art?21.

@. HOLOGRAPHIC ILLa. Must e entirely written. &/ecuted in a language or dialect +nown to testatorc. $ated y the testatord. 'igned y the hand of the testator himselfe. 5itnesses required

aE Fnows the handwriting and signature of thetestator

E &/plicitly declares that the will and thesignature are in the handwriting of the testator

f. $ispositions elow testator4s signature must also edated and signed.

g. 5hen se*eral additional dispositions are signed utnot dated- the last disposition must e signed anddated to *alidate the dispositions preceding it.

h. Any insertion- cancellation- erasure or alteration muste authenticated y the testator4s full signature-otherwise it shall e deemed as not made.

i. )rohiition on Doint wills- especially y ilipinos e*en ife/ecuted in a foreign country where Doint wills areallowed.

f the testator wishes to epulish a will that is either3

1. GO$ for a reason other than a formal defect- or2. )re*iously &GOF&$

The only thing necessary to repulish it is for the testatorto e/ecute a susequent will or codicil referring to thepre*ious will. There is no need to reproduce the pro*isionsof the prior will in the susequent instrument.

5hy the difference on the rules etween nullity as to form andnullity ased on other grounds6 )rof. alane says ecause

Art?!% is from Argentine "aw whole Art?!( is from California"aw. 8o figure.

ART.


17/78

On the authority of Nepomuceno *. Ca- a proate court maypass upon the issue of intrinsic *alidity if on the face of the will-its intrinsic nullity is patent.

ART. ? If i %as e+ecued &$ou)& fo$ce o$ unde$ du$ess(

o$ &e inf*uence of fea$( o$ &$eas;

>4? If i %as '$ocu$ed !" undue and im'$o'e$'$essu$e and inf*uence( on &e 'a$ of &e!eneficia$" o$ of some o&e$ 'e$son;

>5? If &e si)nau$e of &e esao$ %as '$ocu$ed !"f$aud;

>8? If &e esao$ aced !" misa2e o$ did no inen&a &e ins$umen &e si)ned s&ou*d !e &is %i**a &e ime of affi+in) &is si)nau$e &e$eo.

An E?c+usie Enu(erationof the grounds for disallowance of awill.

These are matters in*ol*ed in formal *alidity. Once a proatedecree is final- such decree forecloses any susequentchallenge on any of the matters enumerated in this article.

f any of these grounds for disallowance are pro*en- the willshall e set aside as GO$.

A will is either *alid or *oid. f none of the defectsenumerated in this article are present- it is *alid< if any oneof these defects is present- the will is *oid. The issue offormal *alidity or nullity is precisely what the proateproceedings will determine.

There is no such thing as a Goidale 5ill.

GRO0N-S OR -ISALLOANCE O A ILL1. FORMALITIES

Those referred to in Articles ?#>?1?- ?1?>?1@ and?2@>?21

. TESTATOR INSANE OR MENTALL" INCAPA;LE ATTIME OF E8ECUTION

Articles 7@? 9 ?1 on testamentary capacity and

intent

#. FORCE0 4URESS0 INFLUENCE OFFEAR OR THREATS

orce or Giolence 9 when in order to wrest consent-

serious or irresistile force is employed.

$uress or ntimidation 9 when one of the contracting

parties is compelled y a reasonale and well>

grounded fear of imminent and gra*e e*il upon hisperson or property- or upon the person or property ofhis spouse- descendants or ascendants- to gi*e hisconsent. Age- se/ and condition of the person areorne in mind. Threat to enforce a Dust or legal claimthrough competent authority does not *itiate consent.

7. UN4UE J IMPROPER PRESSURE AN4 INFLUENCE

Bndue nfluence 9 when a person ta+es improper

ad*antage of his power o*er the will of another-depri*ing the latter of a reasonale freedom ofchoice. Circumstances such as the following shall econsidered3 confidential- family- spiritual and otherrelations etween parties- or fact that person undulyinfluenced was suffering from mental wea+ness orignorant or in financial distress.


18/78

%a" &a( e#en %i& &e use of &e o&e$ '$oof( &e 'e$soninsiued canno !e idenified( none of &em s&a** !e an&ei$.

&KB&M&NT O $&'8NATON O =&

The heir- legatee or de*isee must e idenified in &e %i**%i& sufficien c*a$i" to lea*e no dout as to thetestator4s intention.

The asic rule in testamentary succession always isrespect for and compliance with the testator4s wishes.

T'e *esi/nation o) na(e an* surna(e is 4IRECTOR". 5hatis required is that the identity of the designated successor esufficiently estalished. This is usually done y gi*ing thename and surname- ut there are other ways as can egleaned from Art?#! par2- such as to one4s Reldest first cousin4.

I) t'ere is an, AM;IGUIT" in t'e *esi/nation0 it s'ou+* -ereso+e* in +i/'t o) Art596 B -, t'e conte?t o) t'e i++ an* an,e?trinsic ei*ence aai+a-+e0 e?cept t'e testator2s ora+*ec+arations.

f it is not possile to resol*e the amiguity- the testator4sintent ecomes indeterminale and therefore intestacy asto that portion will result.

ART. CA)

Testamentary 'uccession 9 equality in shares of full andhalf lood rothers and sisters unless the testator pro*idesotherwise :Art?#?;

ntestacy 9 )roportion of 231 etween full and half loodrothers and sisters :Art1(;- and only if thedisqualification in Art@@2 does not apply.

Kuestion 9 $oes Art?#? apply e*en to illegitimate rothers andsisters- in cases where the testator is of legitimate status and*ice *ersa6 I&'. Art?#? does not distinguish.

ART.


19/78

T&e same $u*e a''*ies if &e esao$ &as insiuedse#e$a* &ei$s( eac& !ein) *imied o an a*iquo 'a$( and a**&e 'a$s do no co#e$ &e %&o*e in&e$iance.

The wording of the article- according to )rof. alane- iserroneous ecause +e/a+ succession *oes not ta>e p+ace it'respect to t'e re(ain*er o) t'e estate -ut to t'e re(ain*er o)t'e is!osable !ortion.

There may after all e compulsory heirs whose legitimes willtherefore co*er part of the estate- the and the legitimes do not

pass y legal or intestate succession.

'uggested ewording 9Art. ?%1. f the testator has instituted only one heir- and

the institution is limited to an aliquot part of the inheritance-+ess t'an t'e entire *isposa-+e portion0 legal succession ta+esplace with respect to the remainder of the estate.

The same rule applies if the testator has instituted se*eralheirs- each eing limited to an aliquot part- and all the parts donot co*er the whole inheritance.

Moreo*er- this article states e/actly the same rule laid down inArt?#1. there is asolutely no need for the redundancy.

ART. $atu31. There was a compulsory heir in the direct

line2. 'uch heir was instituted in the will!. The testamentary disposition gi*en to such

heir was less than her legitime

ased on these- the holding was that there wasNO )&T&TON.

The reason was there was no TOTA" OM''ON-

inasmuch as the heir recei*ed something from theinheritance. The heir4s remedy is not found in

Art?%# ut in Arts. @( and @7 for Completion of"egitime.

Art. @(. Any compulsory heir to whom thetestator has left y any title less than the legitimeelonging to him may demand that the same maye fully satisfied.

Art. @7. Testamentary dispositions that impairor diminish the legitime of the compulsory heirsshall e reduced on petition of the same- insofaras they may e inofficious or e/cessi*e.

I) t'e 'eir is /ien a +e/ac, or *eise0 t'ere is nopreterition.

'hould the *alue of the legacy or de*ise e lessthan the recipient4s legitime- his remedy is only forcompletion of legitime under Articles @( and @7.

I) t'e 'eir receie* a *onation inter ios )ro( t'e

testator B t'e -etter ie is t'at t'ere is no preterition

eason 9 donation inter *i*os is treated as anad*ance on the legitime under Articles @(- @@-@1 and 1(2.

Art. @@. $onations gi*en to children shall echarged to their legitime.

$onations made to strangers shall e charged tothat part of the estate of which the testator could ha*edisposed y his last will.

nsofar as they may e inofficious or may e/ceedthe disposale portion- they shall e reduced accordingto the rules estalished y this Code.

Art. @1. $onations which an illegitimate child mayha*e recei*ed during the lifetime of his father ormother- shall e charged to his legitime.

'hould they e/ceed the portion that can e freelydisposed of- they shall e reduced in the mannerprescried y this Code.

Art. 1(2. Collation shall not ta+e place among

compulsory heirs if the donor should ha*e so e/presslypro*ided- or if the donee should repudiate theinheritance- unless the donation should e reduced asinofficious.

I) t'e 'eir is not (entione* in t'e i++ nor as a recipient

o) a *onation inter ios )ro( t'e testator0 -ut not a++ o)t'e estate is *ispose* o) -, t'e i++ B t'ere is no

preterition.


20/78

The omitted heir in this instance would recei*esomething y intestacy- from the portion notdisposed of y the will :the *acant portion;. Theright of the heir- should the *acant portion e lessthan his legitime- will simply e to demandcompletion of his legitime- under Articles @( and@7.

or there to e preterition- therefore- the heir in question mustha*e recei*ed NOT=N8 from the testator y way of3

1. Testamentary succession2. "egacy or de*ise!. $onation inter *i*os- or#. ntestacy

)reterition means therefore 9 TOTA" OM''ON N T=&N=&TANC&.

HO ARE INCL0-E- ITHIN THE TER,S O THEARTICLE

A compulsory heir in the direct line- whether li*ing at thetime of the e/ecution of the will or orn after the death ofthe testator.1. COM)B"'OI =&' N T=& $&CT "N& 9

Co*ers children or descendants- and in proper

cases :in default of children or descendants;

parents or ascendants 'ur*i*ing 'pouse 9 does not fall within the

pur*iew of this article ecause although acompulsory heir- is not in the direct line.

Bnder Art@(# par2- direct line is that constituted

y the series of degrees among ascendants anddescendants.

2. Are ""&8TMAT& $&'C&N$ANT' OA'C&N$ANT' within the co*erage of ,compulsoryheirs in the direct line06

Manresa 9 I&'- 'cae*ola 9 NO.

Manresa4s seems to e the etter opinion- since

the law does not distinguish.

!. KBA'>)O'T=BMOB' C="$&N 9

There is a flaw in the wording of the article. The

phrase ,whether li*ing at the time of thee/ecution of the will or orn after the death of thetestator0 does not- y its terms- include thosecompulsory heirs in the direct line -orn a)ter t'ee?ecution o) t'e i++ -ut -e)ore t'e testator2s*eat' $+os cuasi post'u(ous&.

=owe*er- such children are- without dout- to e

included within the pur*iew of the protection ofthis article.

#. )&$&C&A'& O )&T&T&$ COM)B"'OI=& 9

2ndparagraph of Art ?%# pro*ides3 f the omittedcompulsory heirs should die efore the testator-the institution shall e effectual- without preDudiceto the right of representation.

'hould the preterited heir predecease or e

unworthy to succeed the testator- the question ofpreterition of that heir ecomes moot.

=owe*er- should there e a descendant of that

heir who is himself preterited- then the effects ofpreterition will arise.

&/ample 9 J has 2 legit +ids3 A and . J ma+es a

will which results in preterition of A. A dies eforeJ ut lea*es a legit child- A>1- who is himselfcompletely omitted from the inheritance :A>1

eing entitled to succeed J y representation;.Art?%# will apply- not ecause A was preteritedut ecause A>1 was preterited.

%. A$O)T&$ C="$&N

Case of Acain *. AC answers the question of

whether an adopted child is within thecontemplation of this article as ,compulsory heirin the direct line0 and rules in fa*or of the adoptedchild4s inclusion in the phrase.

An adopted child therefore- if totally omitted in the

inheritance- is preterited within the contemplationof Art?%# and can in*o+e its protection andconsequences.

Acain4s logic is that since an adopted child is

gi*en y law the same rights as a legitimate child-*is>S>*is the adopter- then the adopted child can-in proper cases- in*o+e Art?%# in the samemanner that a legitimate child can.

The law cited was Art!@ of )$(! or the Child

and Iouth 5elfare Code as supplanted yArt1?@:1; of the 8amily Code- li+ewisesupplanted y 'ecs 17 and 1? of A?%%2 or the$omestic Adoption Act of 1@@?.

EECT O PRETERITION

Annulment of the institution of an heir ut *alidity oflegacies and de*isees to the e/tent that these latter do notimpair legitimes.

$istinction etween heirs and legateesLde*isees 9 This inthe only instance when there is still a practical effect in thedistinction etween an heir and a legatee or de*isee in

Art7?2.

According to the case of Nuguid *. Nuguid- annulment ofinstitution of heir means only the legacies and de*ises will

merit consideration if e/pressly gi*en in the will. Art?%#does not mean that the mere institution of a uni*ersal heirin a will 9 *oid ecause of preterition 9 would gi*e the heirso instituted a share in the inheritance.As to t'e 'eir0 t'ei++ is ine?istent.

n that case- the only pro*ision in the will was theinstitution of the petitioner a uni*ersal heir. That institution-y itself- was held null and *oid. Therefore- intestatesuccession ensued.

=owe*er- this was muddled in the case of 'olano *. CAwherein it was ruled that the preterition of illegitimatechildren should annul the institution of the heir ,onlyinsofar as the legitime of the omitted heirs is impaired0.

)rof. alane says this is not annu+(ent ut re*uction- andthis would erase the distinction etween the effect ofpreterition on the institution of the heir and its effect onlegacies and de*ises.

ortunately- this was cleared up in Acain *. CA wherein itwas held that ,)reterition annuls the institution of an heirand annulment throws open to intestate succession theentire inheritance. The only pro*isions which do not resultin intestacy are the legacies and de*ises made in the willfor they should stand *alid and respected- e/cept insofaras the legitimes are concerned.0

&>CA) 9 the correct rule of preterition is that3

)reterition arogates the institution of heir ut respects

legacies and de*ises insofar as these do not impair thelegitimes. Thus- if the will contains only institutions of heirsand there is preterition- TOTAL INTESTAC" i++ resu+t.

f there are legacies or de*ises and there is preterition- thelegacies or de*ises will stand- to the e/tent of the freeportion :merely to e reduced and not set aside- if thelegitimes are impaired; ut the institution of heirs- if any-will e swept away.

)&T&TON *. N&&CTG& $'N=&TANC&

)reterition is total omission from the inheritance- withoutthe heir eing e/pressly disinherited. The implied asis ofthe rule is ina*ertentomission y the testator.

Thus- if the testator e/plicitly disinherits the heir- thisarticle will not apply.

'hould the disinheritance e ineffecti*e- for asence ofone or other of the requisites for a *alid disinheritance- theheir is simply entitled to demand his rightful share.

ART.


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Article is redundant and completely unnecessary of it is madeto apply to cases of preterition. f there is preterition- only

Art?%# need e applied. )roper Application of Art?%% 9 in cases where a compulsory

heir is not preterited ut left something :ecause not all theestate is disposed of y will; less than his legitime. Art?%%really tal+s of a completion of legitime.

HO TO ILL 0P CO,P0LSORF HEIR:S I,PAIRE-LEGITI,E

rom the portion of the estate left undisposed of y will.

rom the shares of the testamentary heirs- legatees andde*isees-proportiona++,.

'uperfluity and naccuracy of Art?%% 9

'uperfluity 9 article- properly understood- does not applyto preterition ut to completion of legitime- it is redundant-ecause the rules and manner of completing impairedlegitimes are laid down with greater detail in Articles @(-@7- @@- @1 and @11.

naccuracy 9 two inaccuracies1. Co*erage should e/tend not only to children and

descendants ut to all compulsory heirs. Assusequent articles :@(- etc.; mandate- anycompulsory heir whose legitime is impaired maydemand that the same e fully satisfied.

2. )roportionate reductions :after consuming the

undisposed portion; should e orne not -, t'eco(pu+sor, 'eirs as suc' -ut -, t'e testa(entar,'eirs0 inc+u*in/ t'e *eisees an* +e/atees.

To ma+e the compulsory heirs qua compulsory

heirs ear the reduction would mean reducingtheir own legitimes 9 a patent asurdity.

That would e sol*ing one prolem y creating

another.

As correctly stated y Art@7- it is testa(entar,

*ispositionsthat must e reduced if they impairor diminish the legitimes of compulsory heirs.

'enator Tolentino comments that article should erephrased as follows >

The share of t'e co(pu+sor, 'eir omitted in a willmust first e ta+en from the part of the estate not disposedof y the will- if any< if that is not sufficient- so much asmay e necessary must e ta+en proportionally )ro( t'es'ares o) t'e ot'er 'eirs /ien to t'e( -, i++.

ART. epresentation

SECTION 3 SSTITTION O, 8EI4S

A$. 1? Sim'*e o$ common;>@? $ief o$ com'endious;

>? Reci'$oca*; o$

>4? ideicommissa$".

Bnder the old 'panish Code- in addition to the # enumerated-there werepupi+arand ee(p+arsustitutions under Arts. 77%and 77(- pro*iding that an ascendant or the parent maysustitute the descendant elow 1# years old in case thedescendant should die efore age 1#< and that a sustitutemay e designated y an ascendant for a descendant who iso*er 1# ut has een declared incompetent y reason ofmental incapacity- ut such sustitution shall e ineffecti*e ya will e/ecuted y the incompetent during a lucid inter*al or

after he ahs reco*ered his mental faculties.

DIN-S O S0STIT0TION 0N-ER ART


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This requisite is the essence of the

fideicomisaria. This ma+es the position of thefiduciary asically that of a usufructuary- with theright to use and enDoy the property ut 5T=OBTUS 4ISPONEN4I.

f there is no asolute oligation to preser*e and

transmit- there is no fideicommissary sustitution.

The institution is not necessarily *oid- it may e

*alid as some other disposition ut it is not afideicomisaria.

n )C *. &scolin- the institution was held to ea simultaneous institution- a resolutory conditionon the part of the husand while suDect to asuspensi*e condition on the part of the rothers>and sisters>in>law and not a fideicomisariaecause no oligation is imposed upon thehusand to preser*e the estate or any partthereof for anyone else.

f the testator $$ NOT specify a day when the

fiduciary will deli*er the property to thefideicomissary- or when the time of deli*ery is indout- it shall e understood to ha*e een left tothe fiduciary4s discretion- which means thedeli*ery should e upon the $BCAI4'$&AT=. This is ased on the presumption that

the testator intended the fiduciary to enDoy theproperty during his lifetime.


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the will- or if- ha*ing +nown of them susequently- heshould condone them in writing.

Art. 1!#. n order to Dudge the capacity of the heir- de*isee orlegatee- his qualification at the time of the death of thedecedent shall e the criterion.

n cases falling under Nos. 2- !- or % of Article 1!2- itshall e necessary to wait until final Dudgment isrendered- and in the case falling under No. #- thee/piration of the month allowed for the report.

f the institution- de*ise or legacy should e conditional-

the time of the compliance with the condition shall also econsidered.

NOT& 9 this 2>fold requirement is to e met only upon the

testator4s death- and this applies not only to the fiduciary utto the second heir as well.

Thus- the 2ndheir need not sur*i*e the first heir- if the 2 ndheir

dies efore the first heir- the 2ndheir4s own heirs merely ta+ehis place.

ART. @? P$o#isions %&ic& conain a 'e$'eua* '$o&i!iiono a*ienae( and e#en a em'o$a$" one( !e"ond&e *imi fi+ed in a$ic*e ? T&ose %&ic& im'ose u'on &e &ei$ &e c&a$)e of'a"in) o #a$ious 'e$sons successi#e*"( !e"ond

&e *imi '$esc$i!ed in a$ic*e


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ART. heir or co>heirs.

. RECIPROCAL

f the heirs in a will are gi*en unequal shares-and they are reciprocal sustitutes of eachother- the sustitute shall- in addition to hisgi*en share- acquire the share of the heir whohe is sustituting for due to predecease-renunciation or incapacity.

The second sentence of Art?(1 pro*ides for)roportionate Accrual. f there are more than 1heir instituted- and they are reciprocallysustituted- the sustitutes will acquire the

share of the original heir in the same proportionas they were gi*en in the testamentarydisposition.

4. I-EICO,,ISSARF

&lements of a ideicommissary1E A 1stheir who ta+es the property upon

the testator4s death2E A 2ndheir who ta+es the property

susequently from the fiduciary!E The 2ndheir must e 1 degree from the

first heir#E $ual oligation imposed upon the 1stheir

to3a. )reser*e the property- and. To transmit it after the lapse of the

period to the fideicommissary heir.%E oth heirs must e li*ing and disqualified

to succeed at the time of the testator4sdeath.

ideicommissary sustitution should ee/ ressl ro*ided for in the will

SECTION $ CON5ITIONAL TESTA:ENTA4; 5IS'OSITIONSAN5 TESTA:ENTA4; 5IS'OSITIONS WIT8 A TE4:

GENERAL PROVISIONS

ART.


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The impossile or illegal condition is simply considered as notwritten. The testamentary disposition itself is not annulled< onthe contrary it ecomes )B&.

The rule on $onations is the same. 9 considered as notimposed

Art. 727. llegal or impossile conditions in simple andremuneratory donations shall e considered as notimposed.

On the other hand- the rule in Oligations is different. 9 annulsthe oligation

Art. 11?!. mpossile conditions- those contrary to goodcustoms or pulic policy and those prohiited y law shallannul the oligation which depends upon them. f theoligation is di*isile- that part thereof which is notaffected y the impossile or unlawful condition shall e*alid.

The condition not to do an impossile thing shall econsidered as not ha*ing een agreed upon.

eason for difference in rule

Testamentary dispositions and donations are othgratuitous and spring from the grantor4s lierality. Theimposition of a condition does not displace lierality as the

asis of the grant. On the other hand- in oligations which are onerous- the

condition that is imposed ecomes an integral part of thecausa of the oligation. The elimination of that conditionfor eing impossile or illegal results in a failure of cause.

ART.


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8 9 may e fulfilled at any time- efore or after the

testator4s death- unless the testator pro*idesotherwise.

KBA"CATON' 9 if already fulfilled at the time of

the e/ecution of the willaE f testator BNA5A& of fulfillment 9 deemed

fulfilledE f testator was A5A& of fulfillment

Can no longer e fulfilled again 9 deemedfulfilled

Can e fulfilled again 9 must e fulfilledagain

Constructi*e Compliance > Art??! par2

aE f casual 9 not applicaleE f mi/ed

f dependent partly on chance 9 notapplicale

f dependent partly on will of a third party

f interested !rdparty 9 applicale

f not an interested party 9 not

applicale

ART. occurrence 9 property is to e placed underadministration.

1. f condition happens 9 the property will e turned o*erto the instituted heir

2. f it ecomes certain that condition will not happen 9property will e turned o*er to a secondary heir :ifthere is one; or to the intestate heirs- as the case maye.

Not applicale to institutions with a T&M 9 despite thewording of the article- it should not e applied to institutionswith a term- which are go*erned y Art??% par 2. Otherwise-there will e an irreconcilale conflict with that article- whichmandates that efore the arri*al of the term- the propertyshould e gi*en to the legal heirs.

2

nd

paragraph 9 the property shall e in the e/ecutor4s oradministrator4s custody until the heir furnishes the caucionmuciana.

)rocedural rules go*erning appointment of administrator 9ules 77>@ oC.

A4T- 66$- Condiions im'osed !" &e esao$ u'on &e &ei$ss&a** !e )o#e$ned !" &e $u*es esa!*is&ed fo$ condiiona*o!*i)aions in a** mae$s no '$o#ided fo$ !" &is Secion.

'uppletorily go*erning conditional institutions are Articles 117@and 11@2 on conditional oligations.

Art. 117@. &*ery oligation whose performance does notdepend upon a future or uncertain e*ent- or upon a paste*ent un+nown to the parties- is demandale at once.

&*ery oligation which contains a resolutory conditionshall also e demandale- without preDudice to the effects ofthe happening of the e*ent.

Art. 11?. 5hen the detor inds himself to pay when hismeans permit him to do so- the oligation shall e deemed

to e one with a period- suDect to the pro*isions of Article11@7.

Art. 11?1. n conditional oligations- the acquisition of rights-as well as the e/tinguishment or loss of those alreadyacquired- shall depend upon the happening of the e*entwhich constitutes the condition.

Art. 11?2. 5hen the fulfillment of the condition depends uponthe sole will of the detor- the conditional oligation shall e*oid. f it depends upon chance or upon the will of a third

person- the oligation shall ta+e effect in conformity with thepro*isions of this Code.

Art. 11?!. mpossile conditions- those contrary to good

customs or pulic policy and those prohiited y law shallannul the oligation which depends upon them. f theoligation is di*isile- that part thereof which is not affectedy the impossile or unlawful condition shall e *alid.

The condition not to do an impossile thing shall econsidered as not ha*ing een agreed upon.

Art. 11?#. The condition that some e*ent happen at adeterminate time shall e/tinguish the oligation as soon asthe time e/pires or if it has ecome induitale that thee*ent will not ta+e place.

Art. 11?%. The condition that some e*ent will not happen at adeterminate time shall render the oligation effecti*e fromthe moment the time indicated has elapsed- or if it hasecome e*ident that the e*ent cannot occur.

f no time has een fi/ed- the condition shall e deemedfulfilled at such time as may ha*e proaly eencontemplated- earing in mind the nature of the oligation.

Art. 11?(. The condition shall e deemed fulfilled when theoligor *oluntarily pre*ents its fulfillment.

Art. 11?7. The effects of a conditional oligation to gi*e- oncethe condition has een fulfilled- shall retroact to the day of

the constitution of the oligation. Ne*ertheless- when theoligation imposes reciprocal prestations upon the parties-the fruits and interests during the pendency of the conditionshall e deemed to ha*e een mutually compensated. f theoligation is unilateral- the detor shall appropriate the fruitsand interests recei*ed- unless from the nature andcircumstances of the oligation it should e inferred that theintention of the person constituting the same was different.

n oligations to do and not to do- the courts shalldetermine- in each case- the retroacti*e effect of thecondition that has een complied with.

Art. 11??. The creditor may- efore the fulfillment of thecondition- ring the appropriate actions for the preser*ationof his right.

The detor may reco*er what during the same time hehas paid y mista+e in case of a suspensi*e condition.

Art. 11?@. 5hen the conditions ha*e een imposed with theintention of suspending the efficacy of an oligation to gi*e-the following rules shall e oser*ed in case of theimpro*ement- loss or deterioration of the thing during thependency of the condition3

1E f the thing is lost without the fault of the detor- theoligation shall e e/tinguishedhalfof the legitime of each of thelegitimate children or descendants.The legitime of an illegitimate childwho is neither an ac+nowledgednatural- nor a natural child y legalfiction- shall e equal in e*ery caseto four>fifths of the legitime of anac+nowledged natural child.The legitime of the illegitimate

children shall e ta+en from theportion of the estate at the freedisposal of the testator- pro*idedthat in no case shall the totallegitime of such illegitimate childrene/ceed that free portion- and thatthe legitime of the sur*i*ing spousemust first e fully satisfied.

n case total of the shares of allillegitimate children e/ceed theamount of the estate- their sharesshall e reduced equally. Theshares of the legitimate childrenand the sur*i*ing spouse cannot ereduced.

LP "egitimateparents alone

of estate:Art??@;

Art. ??@. The legitime of legitimateparents or ascendants consists ofone>half of the hereditary estates oftheir children and descendants.The children or descendants mayfreely dispose of the other half-

suDect to the rights of illegitimatechildren and of the sur*i*ingspouse as hereinafter pro*ided.

There is NO 8=T O&)&'&NTATON in the

Ascending "ine.f the one of the legitimate parents)&$&C&A'& or isNCA)ACTAT&$ to inherit- hisLher

share accrues to the other parent:tama a6;

LPIC "egitimateparents andillegitimatechildren

of estate tolegitimateparents of estate toillegitimatechildren

Art. ?@(. llegitimate children whomay sur*i*e with legitimate parentsor ascendants of the deceasedshall e entitled to one>fourth of thehereditary estate to e ta+en fromthe portion at the free disposal ofthe testator.

or the illegitimate children ordescendants- the sharing shalldepend on whether death occurredefore or during the effecti*ity ofthe amily Code.

LPSS "egitimateparents and

sur*i*ingspouse

of estate tolegitimate

parents of estate tosur*i*ing spouse

Art. ?@!. f the testator lea*es nolegitimate descendants- ut lea*es

legitimate ascendants- thesur*i*ing spouse shall ha*e a rightto one>fourth of the hereditaryestate.This fourth shall e ta+en from thefree portion of the estate.


32/78

CO5E CO:INATION S8A4E CO5AL '4O


33/78

of the sur*i*ing spouse also one>fourth of the estate.


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ARTICLES GOVERNING THEPARTIC0LAR CO,INATIONS

ART.


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remains. 5hat if dies6 Can A and C inherit fromhimLher6

The same prolem arises in cases of marriages Dudiciallyannulled or declared *oid a initio- ecause of thepro*isions of Art% par1 of the amily Code 9 ,The effectspro*ided for y paragraphs 2-!-# and % of article #! and yarticle ## shall also apply in the proper cases to marriageswhich are *oid a initio or annulled y final Dudgmentunder Articles # and #%.

The prolem here will arise should either or oth partnersin the defecti*e marriage remarry later.

alane says that prescinding from the practical prolem ofha*ing 2 husands :or 2 wi*es; claiming the right to alegitime- the *ery principle underlying the rule isquestionale 9 why should consorts of a terminatedmarriage- or an annulled one- or one declared *oid ainitio continue to e heirs of each other6 The marriage 9which forms the asis of the right of succession no longere/ists.

LEGITI,ATE CHIL-REN S0RVIVING SPO0SE 9 Thesharing is for the children collecti*ely and for the spouse-

equi*alent to that of each of the legitimate children ordescendants.

$etermination of sur*i*ing spouse4s share1. As long as at least 1 of se*eral children inherits in his

own right- the determination of the share of thesur*i*ing spouse presents no prolem. t will alwayse equi*alent of one child4s share.

2. ut supposing A"" the children predecease or aredisinherited or are unworthy to succeed6 'ince all thegrandchildren would then inherit I&)&'&NTATON and therefore in differentamounts- the practical solution will still e to gi*e thespouse the share that each child would ha*e gotten ifqualified.

!. 'upposing A"" the Children &NOBNC&- the

grandchildren would inherit )& CA)TA or in theirown right and therefore equally. 'hould the spouse4sshare still e computed on the asis of the children4sshare had they accepted6 f so- then when will theword ,or descendants0 in the second paragraph of thisarticle e*er e operati*e6

ART. the

sharing is for the ascendants collecti*ely and for thesur*i*ing spouse.

or the parents or ascendants- the sharing will e inaccordance with Articles ??@>?@. :"egitimateparentsLascendants as secondary compulsory heirs 9 thelegitimate ascending line succeeds only in default of thelegitimate descending line.;

ART.

% legitimate children and total estate is 1M. of

estate :%-; di*ided y % so 1 "egit child 91-

Natural child 9 %-

'purious child 9 #-

'hould there e no natural children ut only spurious

children- each spurious child will get 2L% share of onelegitimate child.

1 legit child 9 1-

No natural children

'purious child 9 #-

&$BCTON O '=A&'

$epending on the numer of legitimate and illegitimatechildren- the possiility e/ists that the total legitimes wille/ceed the entire estate. eductions- therefore will ha*eto e made in accordance with the following rules 91. The legitimes of the legitimate children should ne*er

e reduced- they are )MAI and )&&&$compulsory heirs

2. The legitime of the sur*i*ing spouse should ne*er ereduced- this article prohiits this.

!. The legitimes of the illegitimate children will ereducedpro rataand without preference among them.

ART.


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ILLEGITI,ATE CHIL-REN LEGITI,ATE PARENTS thesharing is for the legitimate parents collecti*ely and for theillegitimate children collecti*ely.

or the parents or ascendants- the sharing will e inaccordance with the rules laid down in Articles ??@>?@.

or the illegitimate children or descendants- the sharingshall depend on whether death occurred efore or duringthe effecti*ity of the amily Code.

ART.


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The )repositus inherits a piece of land from his father- the

Origin. 'usequently- the )repositus dies intestate- singleand without issue- and the land is in turn inherited y hismother- the eser*ista. The eser*ista is then required toreser*e the property in fa*or of the )repositus4 paternalrelati*es within the !rddegree eser*atariosE.

eser*as and e*ersiones in the 'panish Code

1. eser*a Giudal2. eser*a Troncal!. e*ersion "egal#. e*ersion Adopti*a

)urpose of the eser*a Troncal

The reser*e troncal is a special rule designed primarily to

assure the return of the reser*ale property to the !rd

degree relati*es elonging to the line from which theproperty originally came- and to a*oid its eing dissipatedy the relati*es of the inheriting ascendant :the reser*ista;.

Also to a*oid the danger that property e/isting for manyyears in a family4s patrimony might pass gratuitously tooutsiders through the accident of marriage and untimelydeath.

PROCESS 9 T$ansmissions In#o*#ed

1. First Trans)er9 y gratuitous title- from a person to hisdescendant- rother or sister.

2. Secon* Trans)er 9 y operation of law- from thetransferee in the first transfer :prepositus; to anotherascendant :reser*ista;. t is this second transfer that

creates the reser*a.!. T'ir* Trans)er 9 from the transferee in the second

transfer :reser*ista; to the relati*es within the ! rddegreeof the )repositus- coming from the line of the Origin.

f there are only two transmissions- there is no reser*a:Gona+es CFI;

RE/0ISITES O RESERVA TRONCAL

1. T&a &e '$o'e$" %as acqui$ed !" adescendan 3!re!ositus f$om an ascendano$ f$om a !$o&e$ o$ sise$ 3ori)in !")$auious i*e.

o The term descendant should read person

ecause if the grantor is a rother or sister-the one acquiring o*iously is not a

descendant.o Acquisition is y gratuitous title when the

recipient does not gi*e anything in return. tencompasses transmissions y donation ory succession of whate*er +ind.

@. T&a said descendan 3!re!ositus died%i&ou an issue.

o 'hould read 9 ,that said person died without

legitimate issue- ecause only +e/iti(ate*escen*antswill pre*ent the property fromeing inherited y the legitimate ascendingline y operation of law.

. T&a &e '$o'e$" is in&e$ied !" ano&e$ascendan 3reser*ista !" o'e$aion of *a%;and

o Transmission y operation of law is limited

y succession- either to the legitime or yintestacy.

4. T&a &e$e a$e $e*ai#es %i&in &e $dde)$ee!e*on)in) o &e *ine f$om %&ic& said'$o'e$" came 3reser*atarios.

o These relati*es- called the reser*atarios or

reser*ees- are those that are within the ! rd

degree of the line of the Origin.

@ ASIC R0LES

I. No inqui$" is o !e made !e"ond &e O$i)in ,ediaeSou$ce. I does no mae$ %&o &e o%ne$ of &e'$o'e$" %as !efo$e i %as acqui$ed !" &e O$i)in.

II. A** &e $e*aions&i's amon) &e 'a$ies mus !e*e)iimae. T&e '$o#isions of A$lood. n eithercase- a reser*e may arise. 'ince the law ma+esno distinction- we should not ma+e one.

@. PREPOSIT0So =e is either the descendant or a rotherL sister of the

Origin who recei*es the property from the Origin ygratuitous title. Thus- in the scheme of the reser*atroncal- he is the 'T transferee of the property.

o 5hile the property is still with the )repositus- there is

yet NO &'&GA. The reser*a arises only upon thesecond transfer.

o Consequently- while the property is owned y the

)repositus- he has all the rights of ownership o*er it

Origin eser*ista eser*atarioselati*e wLin

!rddegree of)repositusE

;, Gratuitous ;, OperationTit+e o) La

)repositus


38/78

and may e/ercise such rights in order to pre*ent areser*a from arising. =e can do this y 9

aE 'ustituting or alienating the propertyE equeathing or de*ising it either to the potential

reser*ista or to !rd persons :suDect toconstraints of the legitime;

cE )artitioning in such a way as to assign theproperty to parties other than the potentialreser*ista :again suDect to the constraints of thelegitime;.

o n this sense- the )repositus is deemed the Ariter ofthe eser*a Troncal.

. RESERVISTA 3RESERVORo =e is an ascendant of the )repositus- of whate*er

degree. The eser*ista must e an ascendant ot'ert'anthe OriginL Mediate 'ource :if the latter is also anascendant;.

o The law is clear > it refers to the OriginL Mediate 'ource

as another ascendant. f these two parties are thesame person- there would e no reser*a troncal.

o 'hould the OriginLMediate 'ource and the eser*ista

elong to $ifferent "ines6- &/ample3 A recei*es y donation a parcel of land

from his paternal grandfather J. Bpon A4s death-the parcel passes y intestacy to his father I :J4sson;. The property ne*er left the line- is I oligedto reser*e6

- One Giew 9 NO- ecause another ascendant isone elonging to a line other than that of thereser*ista.

- Another Giew 9 I&'- ecause :1; the law ma+esno distinction- and :2; the purpose of the reser*e isnot only curati*e ut also pre*enti*e- i.e. to pre*entthe property from lea*ing the line.

4. RESERVATARIOS 3RESERVEES

o The reser*a is in fa*or of a class- collecti*ely referredto as the eser*atarios :reser*ees;.

o RE/0IRE,ENTS TO E A RESERVATARIO=

1? He mus !e %i&in &e $d de)$ee ofconsan)uini" f$om &e P$e'osius.

@? He mus !e*on) o &e *ine f$om %&ic& &e'$o'e$" came. T&is is dee$mined !" &eO$i)in,ediae Sou$ce.

- f an ascendant- the Mediate 'ource is eitherof the paternal or maternal line.

- f a half>rother or half>sister- the same is true.- f howe*er- it is a rother or sister of the full

lood- it would not e possile to distinguishthe lines.

- To those who hold the opinion that a reser*awould not e/ist in such case of full loodsilings- Manresa4s comment should e thenorm3 ,that the question of line would eindifferent.0

o uestion B (ust t'e Reseratario a+so -e re+ate* to

t'e Me*iate Source@- ,an$esa sa"s NO- the article spea+s solely of 2

lines- the paternal and the maternal of thedescendant- without regard to sudi*isions.

- 'ancheH oman says I&'- otherwise results

would arise completely contrary to the purpose ofthis reser*a- which is to pre*ent the property frompassing to persons not of the line of origin.

o eser*a in fa*or of reser*atarios as a C"A'' > to -e

3ua+i)ie* as a reseratario0 is it necessar, t'at one(ust a+rea*, -e LIVING 'en t'e prepositus *ies@

- NO- ecause the reser*a is estalished in fa*or ofa 8OB) or C"A''- the relati*es within the ! rd

degree- and not in fa*or of specific indi*iduals.

- As long- therefore- as the reser*atario is ali*e atthe time of the reser*arista4s death- he qualifies assuch- een i) 'e as conceie* an* -orn a)ter t'ePrepositus2 *eat'.

o P$efe$ence Amon) &e Rese$#aa$ios

- Bpon death of the ascendant reser*ista- thereser*ale property should pass- not to all thereser*atorios as a class- ut only to thoseN&A&'T in degree to the descendant:prepositus;- e/cluding those reser*atarios of moreremote degree. :Pa*ura . ;a+*oino;

- n other words- the reser*e troncal merelydetermines the group of relati*es :reser*atarios; towhom the property should e returned< ut it'int'at /roup- the indi*idual right to the propertyshould e decided y the applicale rules ofordinary intestate succession- since Art?@1 doesnot specify otherwise.

- Thus- according to the )adura ruling- whichsuDects the choice of reser*atarios to the rules ofintestate succession- those reser*atarios nearer indegree of relationship to the )repositus wille/clude those more remotely related.

o

Re'$esenaion Amon) &e Rese$#aa$ios- As in intestate succession- the rule of preference

of degree among reser*atarios is qualified y therule of representation.

- The right of representation cannot e alleged whenthe one claiming the same as a reser*atario of thereser*ale property is not among the relati*eswithin the !rd degree elonging to the line fromwhich such property came- inasmuch as the rightgranted y the Ci*il Code in Art?11 is in thehighest degree personal and for the e/clusi*eenefit of designated persons who are therelati*es withint the !rddegree of the person fromwhm the reser*ale property came. Therefore-relati*es of the # th degree and the succeeding

degrees can ne*er e considered as reser*atariossince the law does not recogniHe them as such.

- Ne*ertheless- there is a right of representation onthe part of the reser*atarios who are within the !rd

degree mentioned y law- as in the case ofnephews of the deceased person from whom thereser*ale property came. These reser*atariosha*e the right to represent their ascendants:fathers and mothers; who are the rothers of thesaid deceased person and relati*es within the ! rd

degree in accordance with Art?11. :F+orentino .F+orentino;

- Actually- there will only e 1 instance ofrepresentation among the reser*atarios- which isin case o) t'e Prepositus -ein/ surie* -,

-rot'ersKsisters an* c'i+*ren o) a pre*ecease* orincapacitate* -rot'er or sister.

u$idica* Nau$e of Rese$#a T$onca*

The Duridical nature of the reser*e troncal may e *iewedfrom 2 aspects 9 from that of the reser*ista and that of thereser*atarios.

1. u$idica* Nau$e f$om &e #ie%'oin of &eRESERVISTA- Manresa says that ,the ascendant is in the first

place a B'BBCTBAI who should use andenDoy the things according to their nature- in themanner and form already set forth in the Code

referring to use and usufruct.0- ut since in addition to eing the usufructuary- heis- e*en though CON$TONA""I- the owner infee simple of property- he CAN $')O'& of it inthe manner pro*ided in Articles @7# and @7( of theCode.

- The conclusion is that the person required yArt?11 to reser*e the right has- eyond any doutat all- the rights of use and usufruct. =e has-moreo*er- the "&8A" TT"& and $OMNON-


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although under a CON$TON susequent:whether or not there e/ist at the time of his deathrelati*es within the !rddegree of the descendantfrom whom they inherit in the line whence theproperty proceeds;.

- Clearly- he has- under an e/press pro*ision of law-the right to dispose of the property reser*ed- andto dispose of is to alienate- although under acondition. =e has the right to reco*er it- ecausehe is the one who possesses or should possess itand ha*e title to it- although a limited and

re*ocale one. n a word- the legal title anddominion- e*en though under a condition- reside inhim while he li*es. After the right required y law toe reser*ed has een assured- he can do anythingthat a genuine owner can do. :E*roso Sa-+an;

rom E*roso- the following may e deri*ed3A. The reser*ista4s right o*er the reser*ed property is

one of ownership.. The ownership is suDect to a RESOLUTOR"

CON4ITION- i.e. the e/istence of reser*atorias atthe time of the reser*ista4s death.

C. The right of ownership is alienale- ut suDect to thesame resolutory condition.

$. The reser*ista4s right of ownership is registerale.

@. u$idica* Nau$e f$om &e #ie%'oin of &eRESERVATARIOS- The nature of the reser*atarios4 right is- Manresa

saysthat ,during the whole period etween theconstitution in legal form of the right required ylaw to e reser*ed and the e/tinction thereof- therelati*es within the !rddegree- after the right that intheir turn may pertain to them has een assured-ha*e only an &J)&CTATON and therefore theydo not e*en ha*e the capacity to transmit thate/pectation to their heirs.0

- The relati*es within the !rddegree in whose fa*orthe right is reser*ed cannot dispose of the

property- first ecau

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