INSTITUTION OF AN HEIR

ART. 841 - A will shall be valid even if:1. It should not contain an institution of an heir2. In case of partial institution of an heir3. The instituted heir repudiated the inheritance4. The instituted heir is incapacitated to succeed.Effect of Lack of Institution The testamentary dispositions made in accordance with law shall be complied.While the remainder shall pass to the legal heirs in accordance with the law of intestate succession.There is what we call now as MIXED SUCCESSION.

ART. 842 If the testator DOES NOT have a compulsory heir, he can dispose the whole of his estate or part of it in FAVOR OF ANY PERSON WHO HAS CAPACITY TO SUCCEED. If HE HAS compulsory heir, HIS FREEDOM OF DISPOSITION IS NOT ABSOLUTE IN CHARACTER. His freedom of disposition shall extend only to the disposable free portion of his estate, but not to the legal portion or legitime. According to the law, such portion or legitime is reserved for the cumpolsory heirs.ART. 904 The testator cannot deprive his cumpolsory heir of his legitime, except in cases specied by law. Neither can he impose upon the same any burden, encumbrance, condition or substitution of any kind whatsoever. The only case in which the testator may, by his own act deprive a compulsory heir of his legtime, is by means of DISINHERITANCE for causes expressly stated by law. The only case in which the law recognizes a right of the testator to impose a charge upon the legitime is when it allows the said testator TO PROHIBIT THE PARTITION OF THE ENTIRE ESTATE INCLUDING THE SAID LEGITIME for a period which shall not exceed 20yrs.

ART. 843 The testator shall designate the heir by his name or surname, and if same names, he shall indicate some circumstances by which the instituted heir may be known. Even if NAME IF HEIR IS OMITTED, if there is a designation as there can be no doubt as to who was instituted, THE INSTITUTION IS VALID.ART. 844 An error in the name, surname, or circumstances of the heir SHALL NOT VITIATE THE INSTITUTION, WHEN IT IS POSSIBLE IN ANY MANNER, to know with certainty the person instituted. If there is really similarities of names and even with the use of proofs, the person instituted cannot be identified, NONE OF THEM SHALL BE AN HEIR.ART. 845 Every disposition in favor of an UNKNOWN PERSON SHALL BE VOID, unless some event or circumstance his identity becomes certain. However, a disposition in favor of A DEFINITE CLASS OR GROUP OF PERSONS is VALID.

ExAMPLES OF INVALID INSTITUTION:1. A GROUP OF VETERANS2. SOME MEMBERS OF THE BAR3. LOVERS OF ARTEXAMPLES OF DEFINITE AND VALID CIRCUMSTANCE OF IDENTIFICATION:1. The person who saved his life during the last battle in Corregidor2. The present chief or head of a certain labor Movement in Manila3. The bar candidate who will top the first bar examnination after his death.

The institution, devise or legacy is valid, since it is possible to ascertain the identity of the designated heir either by a past, present or future event or circumstance. But even with clear designation, it may still be held INVALID, WHEN THE TESTATOR INSTITUTES AS HIS HEIR ANY PERSON DESIGNATED BY ANOTHER PERSON. In this case, there is in reality a DELEGATION TO ANOTHER PERSON OF THE POWER TO DESIGNATE THE INSTITUTED HEIR, which IS PROHIBITED, and under ART. 785, NULL AND VOID.WHAT ARE INDISPENSIBLE BEFORE THE DISPOSITION CAN BE CONSIDERED VALID:1. That the identity of the person can be ascertained either by a past, present or future event or circumstance.2. The beneficiary must be in existence at the time of the testators death. Otherwise, even if it would be possible to determine his identity. The disposition would still be ineffective on the ground of ABSOLUTE INCAPACITY. INSTITUTIONS WITHOUT DESIGNATION OF SHARESART. 846 Heirs instated without designation of shares SHALL INHERIT IN EQUAL PARTS. This rule however should NOT BE INTERPRETED IN AN ABSOLUTE MANNER as it would impair the legitimes of the compulsory heirs. It should be limited only where the heirs are of the same class or juridical condition, and where there are compulsory heirs among the heirs instituted, IT SHOULD BE APPLIED ONLY TO THE DISPOSABLE FREE PORTION. EXAMPLE OF NO DESIGNATION OF SHARE, BUT NOT RESULT WITH EQUAL SHARES Testator designates WIFE, CHILD AND FRIEND Wife and child are compulsory heirs, while the friend is the VOLUNTARY HEIR NOT EQUAL SHARES, because the legitime of wife and child will be impaired Satisfy first the legitimes which corresponds To the compulsory heirs and then apply the rule in ART. 846PROBLEM:A instituted B (his son) and his brothers C and D as his heirs to an estate of P600,000. Distribute the estate.ANSWER:ART. 846 of the Civil Code which declares that heirs instituted without designation of shares SHALL INHERIT IN EQUAL PARTS, is applicable. It must be noted however, that one of the instituted heirs (B) is a compulsory heir, while the other two are voluntary heirs. Art. 846 is applicable only to the DISPOSABLE FREE PORTION and NOT TO THE LEGITIME OF THE COMPULSARY HEIRS. Therefore, B gets of the estate of equivalent to 300,000. While the remaining 300,000 will be divided in equal part to B, C, AND D Therefore: B = 300,000+100,000 C= 100,000 D=100,000

ART. 847 INDIVIDUAL AND COLLECTIVE INSTITUTIONS In the absence of a more specific designation, the law presumes that those WHO ARE COLLECTIVELY DESIGNATED, SHALL BE CONSIDERED AS INDIVIDUALLY INSTITUTED, in accordance with the presumed will of the testator.PROBLEM:A died in 1980. He left a will which contains the following institution of heirs: I designate as my heirs my son B, my daughter C, the children of my deceased son D, and my friend X.D who died in 1969, is survived by his three legitimate children E,F,G.The net residue of As estate is 180,000. How shall the distribution be made.ANSWER:The provisions of ART. 846 and 847 are applicable. The rule that the heirs shall inherit in equall parts shall be applicable only to the DISPOSABLE FREE PORTION, should there be COMPLUSARY HEIRS. The esate shall be divided as follows: First, satisfy the legitime of B,C, E,F and G. B AND C shall be entitled to P30,000 each., while E,F, and G will be entitled to P10,000 each, BY RIGHT OF REPRESENTATION. The disposable FREE PORTION OF 90,000 will then be divided equally amonth the instituted heirs B,C,E,F,G and X

ART. 848 Institution of Brothers and Sisters there is no discrimination whatsoever, the inheritance shall be distributed equally, unless a diff. intention appears. However, IN CASE OF INTESTATE SUCCESSION, should brothers and sisters of the full blood survive together with the brothers and sisters of the half blood, THE FORMER SHALL BE ENTITLED TO A SHARE DOUBLE THAT OF THE LATTER.

ART. 849 When the testator calls to the succession A PERSON AND HIS CHILDREN, they are all deemed to have been instituted SIMULTANEOUSLY AND NOT SUCCESSIVELY.

ART. 850 The statement of a false cause for the institution of an heir shall be considered as NOT WRITTEN, unless it appears from the will that the testator would not have made such instution if he had known the falsity of such cause. The test which must be applied in order to resolve the question is to determine from the will itself whether or not the testator would not have made the institution had he known of the falsity of such cause.Requisites:1. The cause for the institution of the heirs must be stated in the will2. The cause must be shown to be false3. It must appear from the face of the will that the testator would not have made such institution had he known of the falsity of the cause.

ART. 851 If the testator has instituted ONLY ONE HEIR, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate.The same principle applies, if the testator had instituted SEVERAL HEIRS, each being limited TO AN ALIQUOT PART, and all the parts do not cover the whole inheritance. The will therefore, what is known as MIXED SUCCESSIONExx.) A instituted B to of the estate, then the other half shall pass to the LEGAL HEIR.ART. 852 If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, and each of them has been instituted to an aliquot portion of the inheritance and their aliquot parts together DON NOT COVER THE WHOLE INHERITANCE, or the whole free portion, EACH PART SHALL BE INCREASED PROPORTIONALLY.EX.) If the testator institutes A to 2/5 of the inheritance, B to 1/5 and C to 1/5, there will still be a remainder of 1/5 which shall pass to the legal heirs.Ex. 2) the testator institutes A to 1/3 off the entire inheritance. B to and C to , with the intention that all of them shall become the sole heirs off the whole estate. The net remainder of the estate after the death of the testator is P120,000. How much is the share of each of the instituted heirs?A= 40,000B= 30,000C= 30,000EXCESS = 20,000 = 3:4:4 (increase in share)3/10 OF 20,000 = 6,0003/10 OF 2000 = 6,0004/10 OF 20,000= 8000

OR 120,000 X 40,000 = 48,000 100,000ART. 853 If Each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, each part shall be reduced proportionally.RULE IF MORE THAN INHERITANCE COVERED each part shall be reduced PROPORTINATELYEX.)The testator institutes as his universal heirs A,B,C,D. According to the institution, A shall inherit , B 1/3, C and D 1/6. The net remainder of the entire inheritance after the death of the testator is P120,000. How much is the share of each the instituted heirs.ANSWER: A= OF 120,000 = 60,000B= 1/3 OF 120,000 = 40,000C = OF 120,000 = 30,000D= 1/6 of 120,000 = 20,000EXCESS = 30,000A= 120,000 x 60,000 = P48,000150,000

B= 120,000 x 40,000 = 32,000 150,000C = 120,000 x 30,000 = 24,000 150,000 D = 120,000 X 20,000 = 16,000 150,000 PREDECEASE OF HEIRSART. 956 If the legatee ot devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substation and of the right of accretion.EFFECT OF INCAPACITY Incapacity has the same effects as predecease. A voluntary heir who is incapacitated to succeed from the testator shall transmit no right whatsoever to his own heirs. A compulsory heir may be represented, but only with respect to his legitime. The same is in case of disinheritance.

EFFECT OF REPUDIATION The effects of repudiation, on the other hand, are different from those of predecease or incapacity. Whether voluntary or compulsory, the heir who repudiates his inheritance cannot transmit any right to his own heirs. THIS RIGHT IS ABSOLUTE!

SUBSTITUTION OF HEIRS

Art. 857 Substitution is the appointment of another heir so that he may enter into the inheritance of the heir originally instituted. It is a conditional institution General Limitation: If the heir for whom a substitute is appointed is a compulsory heir, the rule is that the substitute CANNOT AFFFECT THE LEGITIME OF SUCH HEIR.

ART. 858 Substitution of heirs may be:1. Simple or Common when the testator designates one or more persons to substitute the heir instituted, in case the heir should die before the testator, repudiates the inheritance or is incapacitated.2. Brief when there are two or more persons designated by the testator to substitute for ONLY ONE HEIRCompendious when there is only one person designated to substitute for two or more heirs3. RECIPROCAL When two or more persons are not only instituted as heirs, but are also designated mutually as substitutes for each other.4. FIDEICOMMISARY takes place when the fiduciary or first heir instituted is entrusted with obligation to preserve and to transmit to a second heir the whole or part of the inheritance, provided, such institution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary and or first heir and the second heir are living at the time of the death of the testator. REQUISITES must CONCUR:1. There must be a first heir primarily called to the enjoyment of the estate2. There must be a second heir3. There must be an obligation clearly imposed upon the first heir to preserve the estate and to transmit it to the second heir.*The the second heir or fideicommissary should be entitle to the estate from the time the testator dies, since he is to inherit from the latter and not fron the fiduciary. LIMITATIONS:1. The substitution must not go beyond one degree from the heir originally instituted (only parent or child can be fideicommissary)2. The fiduciary and the fideicommissary must be living at the time of the death of the testator3. The substitution must not burden the legitime of the compulsory heirs4. The substitution must be made expresslyRIGHTS OF FIDEICOMMISARY He acquires a right to the inheritance from the moment of the death of the testator. However, this right is subject or without prejudice to the corresponding right of the fiduciary heir If he dies before the expiration of the period and before the death of the fiduciary, his right to the estate shall be transmitted to his own heirs.EX.) X died in 1960 leaving a will wherein

WHEN SUBSTITUTION TAKES PLACEhe devised a house and lot, now valued at P2,000,000, to his friend A, as fiduciary heir and to B, the eldest son of A, as fideicommissary substitute or second heir. B died in 1975, survived by two legitimate children, E and F. In 1980, A died intestate survived by (a) his two sons, C and D, and (b) his two grandchildren, E and F. C and D now claim that the house and lot should be divided in accordance with the rules of intestacy; in other words, C is entitled to 1/3 of the property; D to 1/3; and E and F, also to 1/3 by right of representation. E and F on the other hand, contend that they are entitled to the property to the exclusion of all others. Decide.ANSWER: E and F are correct. It must be observed that B, as fideicommissary substitute or second heir, acquired a right to the to the subject property upon the death of the testator, under Art. 866. When he died in 1975, this right passed to his children, E and F. Therefore, E and F are now entitled to the subject property TO THE EXCLUSION OF ALL THE OTHERS.

When the fidecommissary is conditional, however, the fideicommisary heir has only a mere hope or expectancy. Consequently, if the fideicommissary dies before the condition has been fulfilled, HE ACQUIRES NO RIGHT TO THE OBJECT, and as a consequence, HE TRANSMITS NO RIGHT WHATSOEVER TO HIS HEIRS.

WHEN DOES SUBSTITUTION TAKES PLACE?1. In case the heir instituted should die before the testator2. In case he should be incapacitated to succeed from the testator3. In case he should not wish to accept the inheritanceNUMBER OF SUBSTITUTES - NO LIMITATIONS upon number of persons who may be instituted as heirsSHARES OF SUBSTITUTEs when two or more persons are instituted by the testator as heirs and they are also designated mutually or reciprocally as substitutes for each other. If there are only two instituted heirs and they are designated mutually as substitutes for each other, the substitute shall acquire the entire share of the heir who dies, renounces, or is incapacitated, even if the shares of both are equal. If there are three or more instituted heirs and they are designated mutually as substitutes for each other, the substitutes shall have the same share in the substitution as in the institution. Ex.) The testator instituted to A of the entire inheritance, B to , C to 1/6 and D to1/12 and at the same time designated each and everyone of them as a substitute of the others. The net remainder of the estate is P36,000. B, however, repudiated his share. What will happen to the vacant share?ANSWER: B = 9,000Reduce each share to their common denominator for the 9,000A= 6/12, C =2/12, D = 1/12A= 6/9 = 6000 ; C= 2/9 = 2000 ; D = 1/9 = 1000A= 18,000 + 6,000 = 24,000C= 9,000+ 2,000 = 11,000D = 3,000 + 1,000 = 4,000

EFFECT OF SUBSTITUTION Once the substitution has taken place, the substitute shall NOT ONLY TAKE OVER THE SHARE that would have passed to the instituted heir, BUT HE SHALL BE SUBJECT to the same charges and conditions imposed upon such instituted heir. EXCEPTIONS:1. When the testator has expressly provided the contrary2. When the charges and conditions are personally applicable to the heir instituted.

ART. 867 The following shall not take effect: (VOID SUBSTITUTION)1. Fideicommissary substitutions which are NOT MADE IN AN EXPRESS MANNER2. Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in Art. 8633. Those which impose upon the heir the charge of paying to various persons successively, beyond the limit, a certain income or pension4. Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by testator.EFFECT OF VOID SUBSTITUTIONART. 868 the nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as NOT WRITTEN.ART. 870 The dispositions of the testator DECLARING ALL or PART OF THE ESTATE INALIENABLE FOR MORE THAN TWENTY YEARS are VOID.

KINDS OF INSTITUTION1. Simple or pure . ART. 777 The rights to the succession are transmitted from the moment of death of the decedent.2. Conditional. ART. 871 The institution of an heir may be made conditionally, or for a certain purpose or cause.INOPERATIVE CONDITIONSART. 872 the testator cannot impose any charge, condition, or substitution whatsoever, upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as NOT IMPOSED.ART. 873 Impossible conditions and those contrary to law or good customs shall be considered as NOT IMPOSED and shall in no manner prejudice the heir, even if the testator should provide otherwise. However, the institution of heir or devise or legacy IS NOT AFFECTED.ART. 874 An absolute condition not to contract a first or subsequent marriage SHALL BE CONSIDERED AS NOT WRITTED unless, such condition has been imposed on the widow or widower by the deceased spouse, or by the latters ascendants or descendants. ABSOLUTE CONDITIONS not to contract marriage not written as it is contrary to morals and public policy because it deprives a person of his inherent right to choose his own status Condition NOT TO CONTRACT FIRST MARRIAGE not writted as it is contrary to morals, etc. However, in the case of impossble conditions, the validity of the institution of heirs is not affected. If the father instituted his daughter as an heir, provided that shel not get married, the institution is valid, but the condition is VOID. Condition NOT TO CONTRACT SUBSEQUENT MARRIAGE - The rule is subject to several excepions,therefore, VALID. Basis, LOVE which transcends even death itself. An offense against the deceased memory.

1. When it is imposed by the deceased spouse himself2. When it is imposed by the ascendants of the deceased spouse3. When it is imposed of the descendants of the deceased spouse

DISPOCICION CAPATATORIA art. 875 Any disposition made upon the condition that the heir shall make some provisions in his will IN FAVOR OF THE TESTATOR or of any other person SHALL BE VOID. EFFECT: It nullifies the disposition itself, because terstamentary succession is an ACT OF LIBERALITY, not a contractual agreement.COMPLIANCEART. 876 Any purely potestative condition imposed upon an heir muct be fulfilled by him as soon as he learns of the testators death.This rule shall not apply when the condition, already complied with, cannot be fulfilled again.Potestative condition one whose fulfilment depends exclusively upon the will of the heir, devise or legatee.EX. If A is instituted as heir if he shall study law in certain college or if B shall not get married before reaching 25 IS PURELY POTESTATIVE. 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 of the testator, unless he has provided otherwise. Causal Condition one whose fulfillment depends exclusively UPON CHANCE and upon the will of a 3rd person.Ex. If a certain person is appointed as a devisee or legatee with respect to certain properties, if the testators horse shall win the Senior Grand derby.MIXED CONDITION one whose fulfillment depends jointly upon the will of the heir, devisee and legatee and upon chance and/or the will of a 3rd person.EX. If the testator bequeaths P10,000 to A subject to the condition that A shall get married to B within 5yrs after the testators death.

EFFECT ART. 879 Rule in negative potestative conditions (not doing or not giving anything) The right of the heir, devisee or legatee DOES NOT HAVE TO BE HELD IN SUSPENSE. He acquires his right as a matter of course without any limitations other than that of not doing or not giving anything It means immediate delivery of the property to the heir, devisees or legatees. In case the mandate or order of the testator is violated, the heir, devisee or legatee SHALL RETURN WHATEVER HE MAY HAVE RECEIVED, together with its fruits and interests. In case he cannot, the SECURITY shall have to answer for the deficiency. Until the condition is violated, he shall continue in the possession and enjoyment of the property.ART. 880KINDS OF CONDITION1. Suspensive wait for the happening of the even before one could inherit The estate will be placed undeR the ADMINISTRATOR until the condition is fulfilled (ART880)2. RESOLUTORY The inheritance will be immediately under the possession of the heir until the happening of the event.

EX. OF SUSPENSIVE T instituted A as heir under suspensive condition. However, A died before the happening of the event. After 2 days, the suspensive condition arose.ANSWER: Under the old civil code, if A died before the happening of the suspensive condition, he shall not inherit anything.ART. 1034 the heir must have legal capacity. But the heir died, thus NO LEGAL CAPACITY. Who will inherit? LEGAL HEIR

Ex. Of RESOLUTORYA died. The event happened, thus the right of inheritance is extinguished.ANSWER: It depends. If in the death of the instituted heir, the non-happening of resolutory condition WILL BECOME CERTAIN OR NOT. If YES, it will be the HEIRS of INSTITUTED HEIRS (No more conditions because of death. Absolute right If the resolutory condition is NOT DEPENDENT TO THE DEATH OF THE INSTITUTED HEIR, Legal heirs of the instituted heirs by subrogation and subject to same conditions

WITH A TERMA. Kinds ART. 885 The designation of the time or day when the effects of the institution of an heir shall commence or cease SHALL BE VALID.In both cases, the LEGAL HEIR SHALL BE CONSIDERED AS CALLED TO SUCCESSION until the arrival of the period or its expiration.But in the first case, he shall NOT ENTER INTO POSSESSION of the property, until after having given sufficient security, with the intervention of the instituted heir.

RULE IF TERM IS SUSPENSIVE The term shall suspend the effects of the institution or of the devise or legacy. In other words, the heir, etc. can only demand the delivery of the inheritance, ONLY UPON THE EXPIRATION OF THE TERM OR PERIOD. Pending the arrival of the date or time designated by the testator, the inheritance shall be given to THE LEGAL OR INTESTATE HEIRS OF THE SAID TESTATOR. However, these legal heirs shall NOT ENTEr into the possession of the property WITHOUT GIVING SUFFICIENT SECURITY There is however one instance where it is possible to apply the provisions of ART. 880 (Administrator), if the legal heirs cannot file the required BOND OR SECURITY, then the inheritance shall be placed under ADMINISTRATION.

TRANSMISSIBILITY OF RIGHTS If the instituted heir should die before the expiration of the suspensive term or period, his RIGHT SHALL BE TRANSMITTED TO HIS OWN HEIRS.RULE IF TERM IS RESOLUTORY the heir, etc, can demand immediately for the delivery of the inheritance. However, after the expiration of the designated period, his rights thereto are terminated. As a consequence, the inheritance, etc. shall pass to THE LEGAL HEIRS OF THE TESTATOR. LEGITIMEART. 886 Legitime is that part of the testators property, which he cannot dispose of because the law has RESERVED IT FOR CERTAIN HEIRS, who are the COMPULSORY HEIRS. Compulsory heir is applicable only WHEN THERE IS A WILL If there is NO LAST WILL, there is NO LEGITIME, THEREFORE, no compulsory heirs, BUT ONLY LEGAL HEIR because of INTESTACYART. 887 WHO ARE COMPULSORY HEIRS1. Legitimate children and descendants, with respect to their legitimate parents and ascendants2. In default of the foregoing, legitimate parents and ascendants, with respect to their children and descendants3. The widow or widower4. Acknowledged natural children, and natural children by legal fiction5. Acknowledged illegitimate children who are not natural.Compulsory heirs mentioned in Nos. 3,4 and 5 ARE NOT EXCLUDED by those in Nos. 1 and 2; neither do they exclude one another.In all cases of illegitimate children, THEIR FILIATION MUST BE PROVED.The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. On the other hand, if the testator is an illegitimate person, his compulsory heirs are the following:1. Legitimate children and descendants2. Ackknowledged natural children and natural children by legal fiction3. Acknowledged illegitimate children who are not natural4. In default of the foregoing, parents by nature; and5. The widow or widowerThe following are illegitimate children under Art. 165 of Family Code1. Children born of couples who are not legally married, or of common law marriages2. Children born of bigamous or polygamous marriages3. Children born of adulterous relations between parents4. Children born of couples below 18yrs old, whether they are married (but which marriage is VOID)5. Children born of other void marriages Under Art. 35 of the Family Code.6. Children born of incestuous marriages under Art. 377. Children born of marriages void for reasons of public policy under Art. 38LEGITIMATE CHILDREN INCLUDES:ART. 36 Psychological incapacityART. 53 either of the former spouses who marries again fails to comply with the requirements of civil registryKINDS OF COMPULSORY HEIRS:Primary those who are always entitled to their legitime as provided by law regardless of the class of compulsory heirs with which they may concur. Includes all kinds of compulsory EXCEPT, parents or ascendantsSecondary those who may be excluded by other compulsory heirs. Embraces only parentsCONCURRENT OF COMPULSORY HEIRS AND THEIR LEGITIMEART. 888 The legitime of legitimate children and descendants consisits of of the hereditary estate of the father or motherThe latter may freely dispose of the remaining half, subject to the rights of the illegitimate children amd of the surviving spouse. Applies RULE OF PROXIMITY (The nearer excludes the father)SEE EXAMPLES ON YELLOW PAPERMEMORIZE THE TABLEART. 889 The legitime of legitimate parents or descendants consists of of the hereditary estate of their children and descendants.The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse.

ART. 890 The legitime reserved for the legitimate parents shall be divided between them EQUALLY; if one of the parents should die, the whole shall pass to the survivor.If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines.

ART. 892 If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same.If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to such portion equal to the legitime of each of the legitimate children or descendants.In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.READ REST OF LEGITIME PAGE. 285- 328

PRETERITION ART. 854 The preterition or omission of one, some, or all of the compulsory heirs in the DIRECT LINE, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be VALID in so far as they ARE NOT INOFICIOUS.If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. REQUISITES:1. The heir omitted must be a compulsory heir in the direct line2. The omission must be complete and total in character in such a way that the omitted heir does not and has not received anything at all from the testator by any title whatsoever.3. The compulsory heir omitted should survive the testator.

Preterition must not be confused with disinheritance. The latter refers to the deprivation of a compulsory heir of his legitime for causes expressly stated by law. The deprivation in preterition is tacit or implied, while in disinheritance, it is EXPRESS.EX.) X died leaving a will wherein he instituted as his heirs his three daughters, A,B and C without designating their shares. His widow, W is omitted without being disinherited. In the will, X also bequeathed a legacy of P20,000 to A. The net value of his estate is P240,000. How shall such estate be distributed?

ANSWER: It must be observed that the omission of W in Xs will DOES NOT CONSTITUTE PRETERITION within the meaning of ART. 854. This is because SHE IS NOT A COMPULSORY HEIR IN THE DIRECT LINE. Therefore, the only effect of her omission is a partial annulment of the institution of heirs to the extent that her LEGITIME IS PREJUDICED. In other words, SHE IS STILL ENTITLED TO HER LEGITIME.Thus, the legitime of A,B and C is of the entire estate of P240,000 or P120,000 or 40,000 each, while the legitime of W is the same as that of each of the legitimate children or 40,000 also.The disposable FREE PORTION is P80,000.The legacy of P20,000 given to A is NOT INOFFICIOUS, therefore leaving a balance of P60,000.This balance shall then be equally divided among A,B and C in accordance with the testators will.A --- 40,000 (compulsory heir)+20,000(voluntary heir)+20,000(legacy)B---- 40,000 (compulsory) + 20,000 (voluntary)C ---- 40,000 + 20,000W---- 40,000 as COMPULSORY HEIR

An adopted child is also considered as a COMPULSORY HEIR IN THE DIRECT LINEART. 906 Any compulsory heir to whom the testator has left by any title LESS THAN THE LEGITIME belonging to him, MAY DEMAND THAT THE SAME MAY BE FULLY SATISFIED.Ex. 2) A has two compulsory heirs in the direct line B a legitimate child, and C, an acknowledged natural child. During his lifetime, A donated a parcel of land worth P10,000 to C. Before his death, he executed a will wherein he instituted AS SOLE HEIR B, omitting C altogether. The net residue or remainder of his estate is P50,000. Shall the omission of C in the will result in the annulment of the institution of B in accordance with the provisions of Art. 854?

ANSWER. There is NO PRETERITION within the meaning of ART. 854 of Civil Code. It is true that there is TOTAL OMISSION of the C, and apparently, the rule on preterition should be applied. But then, we must consider the fact that a DONATION INTERVIVOS is actually given to a COMPULSORY HEIR AS AN ADVANCE ON HIS INHERITANCE. There is NO OMISSION IN THIS CASE which is complete and total in character. But he can ask for the completion of his legitime.Therefore, after collating the P10,000 donation INTER VIVOS given to C to the net value of A, it is clear that the legitime of B is P30,000, while the legitime of C is P15,000 (Art. 888,895). Consequently, C can still demand for an additional P5000 in order to complete his legitime.The balance of the estate shall be given to B.SURVIVAL OF OMITTED HEIR What will happen if the OMITTED compulsory heir DIES BEFORE THE TESTATOR? The institution shall be EFFECTUAL, but without prejudice to the right of representation. Thus, when there is a surviving representative of the deceased, the effect is that such child shall SUCCEED TO THE LEGITIME, which wiuld have gone to the heir omitted. EFFECT OF PRETERITION it shall have the effect of ANULLING THE INSTITUTION of heir, BUT THE DEVISES AND LEGACIES shall be VALID insofar as they are NOT INOFFICIOUS.The effect of Preterition as contemplated in Art. 854 WOULD BE TOTAL INTESTACY.

ART. 855 The share of a child or descendant omitted in a will must first be taken from the part of the estate NOT DISPOSED OF BY WILL, if any; IF THAT IS NOT SUFFICIENT, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.

ART. 918 IMPERFECT OR DEFECTIVE DISINHERITANCE1. When it does not specify the cause2. When it specifies the cause, the truth of which, if contradicted, is not proved3. When it specifies a cause, which is not one of those set forth in the code. Also, then the disinheritance is NOT TOTAL or conditionalIMPERFECT DISINHERITANCE VS PRETERITION1. In imperfect disinheritance, the person disinherited may be any COMPULSORY HEIR, while in preterition, the person omitted must be A COMPULSORY HEIR IN THE DIRECT LINE. 2. In the first, the attempt to deprive the heir of his legitime is ALWAYS EXPRESS, while in the second, it is always IMPLIIED.3. In the first, deprivation is always INTENTIONAL, in the second it may be INTENTIONAL OR UNINTENTIONAL.4. In the first, the effect is PARTIAL ANNULMENT of the institution of HEIRS. While in the second, the effect is TOTAL ANNULMENT.EFFECT OF IMPERFECT DISINHERITANCEThe imperfect disinheritance of a compulsory heir shall result in the annulment of the institution of heirs insofar as it may prejudice the person disinherited, but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime.EX.) A dies leaving a will containing three testamentary clauses. In the first clause, he instituted his two legitimate children, B and C, as his universal heirs., in the second clause he disinherited his legitimate child, D, without specifying the cause; and in the 3rd clause, he left a legacy of P10,000 to a third person E. the net remainder of his estate is P60,000. How shall such estate be distributed?ANSWER: In the 1st place, since the only compulsory heir surviving the testator are three legitimate children, B, C and D, therefore, of the net remainder of the estate, or 30,000 is reserved as their legitime, while the other half, or 30,000 is free or disposable.In the 2nd place, the disinheritance of D is imperfect because there is no specification of the caise, consequently, it shall result in the partial annulment of the institution of B and C as heirs in so far Ds legitime of P10,000 is prejudiced.In the 3rd place, the legacy of P10,000 to E is not inofficious since it can easily be contained within the free portion of P30,000; hence it does not impair the legitime of the three compulsory heirs which is also P30,000. B = 10,000 as compulsory + 10,000 as voluntaryC = 10,000 as compulsory + 10,000 as voluntaryD = 10,000 as compulsory heirE = 10,000 as legatee

RESERVA TRONCAL ART. 891 The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the 3rd degree and who belong to the line from which said property came.Purpose: To prevent persons who are strangers to the family from acquiring, some by accident, property which would otherwise have remained with said family.REQUISITES: (MUST CONCUR)1. The property should have been acquired by operation of law by an ascendant from his descendat upon the death of the latter2. The property should have been previously acquired by gratuitous title by the descendant from another ascendant or from a brtother or sister.3. The descendant should have died without any legitimate issue in the direct descending line who could inherit from him ILLUSTRATION ON PAGE 249 Reserva Troncal is possible only in the LEGITIMATE FAMILY

Origin of Property the law requires that the person from whom the DESCENDANT-PROPOSITUS acquired property should be an ascendant, brother or sister.Descendant-Propositus it is from whom the property is directly acquired by the ascendant-reservista. Acquisition by gratuitous title.Ascendant-Reservista is obliged to reserve the property ffor the benefit of relatives of the descendant propositus who are within the 3rd degree and who belong to the line from which said property came.Reservatorios or relatives of the descendant-propositus for whose benefit the reservation is established. The relatives must be legitimate relatives of the propositus within 3rd degree They must belong to the line from which the reservable property came They must survive the ascendant-reservista. SEE EXAMPLES P265-273PROPERTY SUBJECT TO RESERVATION the same property which the ascendant-reservista had acquired by gratuitous title during his lifetime from another ascendant, brother or sister.RIGHTS OF RESERVISTA- He can alienate or encumber the property if he so desires, but he will only alienate or encumber what he had and nothing more because no one can what does not belong to him. When reservatario acquires right? His hope and expectancy over the reservable property is finally converted into a perfected right upon the concurrence of 2 things:1. Death of the reservista2. SurvivalEXTINCTION OF RESERVA CAUSES:1. Death of the ascendant-reservista2. Death of all relatives of the descendant-propositus within the 3rd degree who belong to the line from which the property came.3. Loss of the reservable property for causes not due to the fault or negligence of the reservista4. Waiver or renunciation by the reservatarios5. Prescription of the right of the reservatarios, when the ascendant reservista holds the property adversely against them in the concept off absolute owner.DISINHERITANCE ART. 915 A compulsory heir may, in consequence of disinheritance, be dprived of his legitime, for causes expressly stated by law.ART. 916 Disinheritance can be effected only through A WILL, wherein the legal cause therefore shall be specified.ART. 917 The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, of the disinherited heir should deny it. REQUISITES FOR DISINHERITANCE:1. The disinheritance must be for a cause expressly stated by law2. The disinheritance must be effected only through a valid will3. The legal cause for the disinheritance must be specified in the will itself4. The cause for the disinheritance must be certain and true NOT VALID: If ever my wife commits adultery, she shall not be entitled to any of my properties5. The disinheritance must be total6. The disinheritance must be UNCONDITIONAL.GROUNDS FOR DISINHERITANCE OF CHILDREN AND DESCENDANTS, LEGITIMATE AND ILLEGITIMATEART. 919 1. when a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants or ascendants2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for 6yrs or more, if the accusation has been found groundless3. When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;4. When a child or descendant by fraud, violence, intimidation or undue influence causes the testator to make a will or to change one already made5. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant6. Maltreatment of the testator by word or deed, by the child or descendant7. When a child or descendant leads a dishonorable and disgraceful life8. Conviction of a crime which carries with it the penalty of civil interdiction.

ART. 920 GROUNDS FOR THE DISINHERITANCE OF PARENTS OR ASCENDANTS, WHETHER LEGITIMATE OR ILLEGITIMATE1. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue2. When the parent or ascendants have been convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants3. When the parent or ascendant has accused the testator of a crime which the law prescribes 6yrs imprisonment or more, if the accusation is found to be false4. When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator5. When the ascendant or parent by fraud, intimidation, etc causes the testator to make a will or to change one already made.6. The loss of parental authority 7. The refusal to support children without justifiable causes8. An attempt by one of the parents against the life pf the other, unless there has been a reconciliation between them.ART. 921 GROUNDS FOR DISINHERTING A SPOUSE1. When the spouse has been convicted of an attempt against the life of the testator, descendants, ascendants2. When the spouse has accused the testator of a crime for which the law prescribes imprisonment for 6yrs 3. When the spouse by fraud, intimidation, etc causes the testator to make a will or to change one already made.4. When the spouse has given a cause for legal separation5. When the spouse has given grounds for the loss of parental authority6. Unjustifiable refusal to support the children or the other spouse.ART. 922 A subsequent RECONCILIATION BETWEEN THE OFFENDER AND THE OFFENDED person deprives the latter of the right to inherit, and renders ineffectual any disinheritance that may have been made.ART. 923 The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime.EFFECT OF DIEINHERITANCE the deprivation of the compulsory heir who is disinherited of any participation in the inheritance, including his legitime.However, if the compulsory heir has children or descendants of his own, such children or descendants shall take his placeand shall preserve his right with respect to his legitime, although the disinherited parents shall not have the usufruct or administration of the property. Representation can take place only in the DIRECT DESCENDING LINE, BUT NEVER IN ASCENDING

LEGACIES AND DEVISES Legatee- a person to whom a gift of personal property is given by virtue of a willDEVISEE a person to who a gift of real property is given by virtue of a will

ART. 924 All things and rights which ARE WITHIN THE COMMERCE OF MAN MAY BE BEQUEATHED OR DEVISEDART. 925 A testator may charge with leagcies and devises not only his compulsory heirs, but also the legatees and devisees.The latte shall be liable for the charge only to the extent of the value of the legacy or the devise received by the. The compulsory heirs shall not be liable for the charge beyond the amount of the portion given to tehm

ART. 926 When the testator charges one of the heirs with a legacy or devise, HE ALONE SHALL BE BOUND.Should he not charge anyone inparticular, all shall be liable in the same proportion in which they may inherit.PERSONS CHARGED WITH LEGACIES AND DEVISES1. ANY COMPUSORY HEIR2. Any voluntary heir3. Any legatee or devisee4. The estate, represented by executor or administratorLIABILITY WHEN NO ONE IS CHARGED all shall be liable in the same proportion which they may inheritART. 927 If two or more heirs take possession of the estate, they shall be SOLIDARILY LIABLE for the loss or destruction of the thing devised or bequeathed, although only one of them should have been negligentART. 928 The heir who is bound to deliver the legacy ir devise shall be liable in case of evictionLEGACY OF THINGS BELONGING PARTLTY TO STRANGERS The presumption is that the testator desires to bequeat or devise inly that which belongs to him Hence, if he bequeaths or devise a thing which belongs partly to him and partly to a 3rd person, the legacy or devise shall be understood limited only to the part or interest belonging to him. EXCEPT: IF THE testator expressly bequeaths the property IN ITS ENTIRETYREAD ART. 930 ART 959 pages 348- 374

ART. 950 If the estate should not be sufficient to cover all the legacies or devisees, their payment should be made in the following order:1. Remunetory legacies or devisees2. Legacies or devisees declared by the testator to be preferential3. Legacies for support4. Legacies for education5. Legacies or devises of a specific, determinate thing which forms a part of the estate6. All others pro-rata.LEGAL OR INTESTATE SUCCESSION ART. 9601. If a person dies without a will, or with a void will, or one which has subsequently lost its validity2. When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed3. If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or If the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place.4. When the heir instituted is incapable of succeeding, except in cases provided in this code.Other causes of intestacy:1. When there is preterition in the testators will of one or some or all of the compulsory heirs in the direct line2. When a testamentary disposition is subject to a resolutory condition and such condition is fulfilled3. When the testamentary disposition is subject to a term or period and such term or period expires4. When a testamentary disposition is impossible of compliance.ART. 961 ORDER OF INTESTATE SUCCESSION prescribed by law, hence not affected by any agreement of parties.1. Legitimate relatives2. Illegitimate relatives3. Surviving spouse4. The State

RULE OF PREFERENCE BETWEEN LINES those in the direct descending line shall exclude in the succession those in the direct ascending lines and collateral lines. And those in the direct ascending line shall in turn exclude those in the collateral line.ART. 962 The nearest excludes the more remote, saving the right of representation (RULE OF PROXIMITY)Relatives in the same degree shall inherit IN EQUAL SHARES.

EX. As a general rule, a grandson is excluded by a son, except for representation.If the decedent is survived by his son A, and by his grandchildren C and D, children of the deceased, or incapacitetd or disinherited child B under the law, C AND D ARE NOT EXCLUDED BY A in the succession in spite of proximity, because by right of representation, they are raised to the place and degree of their deceased father.EX. As a general rule, nephews and nieces are excluded by a brother, but such exclusion is NULLIFIED BY REPRESENTATION.If the decedent is survived by his brother, X, and his nephews, A and B, children of the deceased brother, Y, such nephews shall still participate in the succession by right of representation.RULE OF EQUAL DIVISION- relatives of same degree shall inherit in equal sharesExceptions: 1. When the inheritance is divided between the paternal and maternal grandparents2. When the inheritance is divided between the brothers and sisters, whether half or full blood3. In certain cases where right of representation takes place

EFFECT OF INCAPACITY OR REPUDIATIONART. 968, in case of incapacity, the share or shares which are rendered vacant SHALL PASS TO THE CO-HEIRS OF THE INCAPACITATED HEIR by RIGHT OF ACCRETION. This rule IS NOT ABSOLUTE. If the incapacitated heir happens to be a child or descendant of the decedent and he has children or descendants of his own, then the vacant share SHALL PASS TO SUCH CHILDREN BY RIGHT OF REPRESENTATION. (The right of representation is superior that the right of accretion)

IN CASE OF REPUDIATION by one or some of the relatives, the share which are rendered vacant SHALL PASS TO THE CO-HEIRS OR THE RENOUNCER BY RIGHT OF ACCRETION.This rule is ABSOLUTE. This is so because an heir who repudiates his inheritance MAY NOT BE REPRESENTED.

REPRESENTATION ART. 970 a right created by fiction of law, by virtue of which the representative is raised to the place and degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.ART. 971 The representative is called to succession by the law and not by the person represented. In every inheritance, the relative nearest in degree exclude the most remote ones (Rule of Proximity) EXCEPTION: RIGHT OF REPRESENTATIONCHARACTERISTICS OF REPRESENTATION:1. It is a right of subrogation2. It constitutes an exception to the Rule on Proximity3. The representative is called to the succession by law, not by person represented4. The representative succeeds the decedent and not the person represented5. It can only take place when there is vacancy in inheritance, either by PREDECEASE, INCAPACITY, AND DISINHERITANCE6. As a general rule, the right can be exercised only BY GRANDCHILDREN OR DESCENDANTS OF THE DECEDENT.

The representative must be capable of succeeding the decedent Even if the representative is incapable of succeeding being represented, he can still inherit so long as he is capable of succeeding the decedent Even if the representative had repudiated his inheritance from the person repudiated, he can still inherit from the decedent by way of representation. In testamentary succession, THE PERSON REPRESENTED MUST BE A COMPULSORY HEIR OF THE TESTATOR IN THE DIRECT DESCENDING LINE.ART. 972 The right of representation takes place IN THE DIRECT DESCENDING LINE, BUT NEVER IN THE ASCENDING.In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood.ART. 974 EFFECT UPON DIVISION OF ESTATE THE division of the estate shall be made PER STIRPES, in such manner that the representative SHALL NOT INHERIT MORE THAN WHAT THE PERSON THEY REPRESENT WOULD INHERIT.

ORDER OD INTESTATE SUCCESSION (DECEDENT IS A LEGITIMATE PERSON)1. Legitimate children or descendants2. Legitimate parents or ascendants3. Illegitimate children or descendants4. Surviving Spouse5. Brothers and sisters, nephews and nieces6. Other collateral relatives within the 5th degree7. The stateORDER OF SUCCESSION (DECEDENT IS ILLEGITIMATE)8. Legitimate children or descendants9. Illegitimate children or descendants10. iLLegitimate parents or ascendants11. Surviving Spouse12. Brothers and sisters, nephews and nieces13. The state

ART. 983 If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed in Art. 895 or 10:5. In other words, the share of an acknowledged natural child by legal fiction or an acknowleged illegitimate child who is not natural is OF that of the legitimate child.ART. 988 in the absence of legitimate descendants or ascendants, THE ILLEGITIMATE CHILDREN SHALL SUCCEED TO THE ENTIRE ESTATE OF THE DECEASED.ART.989 If together with the illegitimate children, there should survive descendants of another illegitimate child, THE FORMER SHALL SUCCEED IN THEIR OWN RIGHT AND THE LATTER BY RIGHTOF SUCCESSION.ART. 990 The hereditary rights granted by the two preceding articles to illegitimate children SHALL BE TRANSMITTED UPON THEIR DEATH TO THEIR DESCENDANTS, WHO SHALL INHERIT BY RIGHT OF REPRESENTATION FROM THEIR DECEASED GRANDPARENT.ART. 992 An illegitimate child has NO RIGHT TO INHERIT AB INTESTATO from the the legitimate childrena and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. PRINCIPLE OF ABSOLUTE SEPARATION BETWEEN LEGITIMATE AND ILLEGITIMATE FAMILY The natural children cannot represent their natural father or mother with regard to the inheritance coming from the legitimate ascendants of the latter.EX.) A died intestate survived by the following:1. B, legitimate child of a deceased legitimate son 2. C. illegitimate child of a deceased legitimate daughter3. D, legitimate child of a deceased illegitimate son4. E, illegitimate child of a deceased illegitmate daughterAnswer: B, D, E can inherit from A by right of representation, But C cannot. C is excluded from the succession because under Art. 992 of CC, an llegitimate child cannot inherit AB INTESTATO from the legitimate relatives of his natural parents.