Uribe Notes_Inc.pdf

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I. GENERAL PROVISIONS

A. Definition and Concept

Applicable laws, Effectivity1. Civil Code of the Philippines: August 30, 19502. Family Code: August 3, 1988

Prior to the New Civil Code: the Old Civil Code (the Spanish Code of 1889) was in effect

Succession in GeneralBy succession, the transmissible property, rights and obligations of a person pass, upon hisdeath, to his heirs and other successors mortis causa.

The Corpse in SuccessionSuccession refers only to the inheritance or universality of the property of the deceasedtransmitted to his successors mortis causa. It has no reference to the corps which cannot beconsidered as part of the inheritance, inasmuch as it is not property.

Related Matters1. Disposition of the corpse (Articles 305 to 310, NCC)2. Validity of authorization given by a person to the parts of his corps for medical, surgical,

and scientific purposes (RA 349, as amended by RA 1056)3. Surviving Spouse given priority over the next of kin (i.e. actual order in which relatives are

obliged to support the deceased) as to the duty and right to make funeral arrangements.

Article 744, NCC: Succession is a mode of acquisition by virtue of which the property, rightsand obligations to the extent of the value of the inheritance, or a person are transmittedthrough his death to another or others, either by his will or by operation of law.

Two concepts of succession1. The transmission of the property, rights and obligations of a person

2. The universality or entirety of the property, rights and obligations transmitted by any ofthe forms of succession admitted in law.First concept more accuratea. Article 772: succession is a mode of acquiring ownershipb. Etymological meaning of succession: to substitute, to subrogate, or to put one person in

place of another.

Succession defined (Tolentino) The mode of acquiring ownership, by virtue of which the inheritance of a person is

transmitted to us, either according to his express will and words, or if by some natural oraccidental circumstances he has made no will, according to his presumed will provided bylaw as analogous to what he would made had he executed one.

A mode of acquisition, by virtue of which one succeeds to the universality of thetransmissible rights, active and passive, of a person who has died.

Succession and inheritance distinguishedSuccession refers to the legal mode bywhich this inheritance is transmitted tothe persons entitled to it surviving thedeceased.

Inheritance refers to the objectiveelement of succession, to the mass ortotality of the patrimony of a deceasedperson.

Article 712, NCC: Ownership is acquired by occupation and by intellectual creation.

Ownership and other real rights over property are acquired and transmitted by law, bydonation, by testate and intestate succession, and in consequence of certain contracts, bytradition.

They may also be acquired by means of prescription.

Mode and Title distinguishedMode of acquiring ownership and otherreal rights is the specific cause which

Title for acquiring ownership and otherreal rights is the juridical act which gives

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gives rise to them, as the result of thepresence of a special condition of things,of the aptitude and intent of persons,and of compliance with the conditionsestablished by law.

the name to the acquisition of the realright, but which in itself is insufficient toproduce it.

Mode the proximate cause, of theacquisition.

Title is the remote cause

The civil code is illogical and scientific, neither daring to abandon the theory of title and mode(the traditional Roman law distinction. In following the Spanish Code), nor adapting itself tomodern trends (German, Swiss and Austrian Codes).

The Different Modes of Acquiring Ownership1. Occupation2. intellectual Creation3. Law4. Donation5. Succession (Testate and Intestate)6. Tradition (in consequence of certain contracts)7. Prescription

Article 1311, NCC: Contracts take effect only between the parties, their assigns and heirs,except in case where the rights and obligations arising from the contract are nottransmissible by their nature, or by stipulation or by provision of law. The heir is not liablebeyond the value of the property he received from the decedent.

if a contract should contain some stipulation in favor of a third person, he may demand itsfulfillment provided he communicated his acceptance to the obligor before its revocation. A mereincidental benefit or interest of a person is not sufficient. The contracting parties must haveclearly and deliberately conferred a favor upon a third person.

Contracts bind heirs

1. As a general rule, rights and obligations under a contract are transmitted to the heirs ofthe parties. The heirs are not considered as third parties, because there is privity ofinterest between them and their predecessor.

2. Transmissible contractsa. A lease contract is transmissible to the heirs of the lesseeb. The heirs of a party in whose favor a trust exists, may enforce the trust against the

trusteec. The heirs of a person bound to reconvey a piece of property may be compelled to

make the reconveyance.d. Obligations, except money debts, are transmissible to the heirs of the parties, and

they may be compelled to fulfill the same. The heirs of the parties to a contract maymake a valid novation of said contract.

3. Intransmissible contractsa. Purely personali. By provision of lawii. By the very nature of the obligations arising therefrom (such as those

requiring special personal qualifications of the obligor)b. Money debts (which merely constitute as a charge against his estate)

Basis of Law of Succession

The law of succession is based partly on the law of family relations, and partly on the law ofproperty.

Sanchez Roman: Succession aims to make possible and effective the orderly enjoyment by thehuman species of the essential elements of physical life, giving a note of subsistence andperpetuity of the patrimony which cannot be maintained without the transmissibility of theproperty constituting it.

Law on Family Relations1. Donat: God has united us to the family to which we are born; family ties create rights

and obligations, and the successional right is nothing more than a right founded upon aduty.

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2. Laurent: Succession springs from natural law. The individual, during life, seeks toaccumulate wealth in order to perform his duty of service and assistance to the membersof his family. The knowledge that, upon death, the products of his effort and work will beenjoyed by those who are the natural objects of his affection within the family furnishesthe greatest incentives to his initiative, industry, and thrift.

Law of Property1. Navarro Amandi: Succession is but a corollary to the right of property; without it, the

right of ownership would be an imperfect thing.2. Sanchez Roman: Characteristics of Production of Wealth

a. Individuality: prevent stagnation of wealthb. Inequality: A product of the independence and freedom of human activities,

through labor and the peculiar qualities of each onec. Transmissibility: A salient feature of the right of property, which is incomplete

without the right to transmit the same.

The Code Commission followed the prevailing tendency towards a new concept of legal order,which pursues the socialization of ownership, not in the sense of socialism but in the senseof effectivity adapting property to the needs of society.

In retrospect, the Old Civil Code was drafted when the prevailing philosophy was that of extremeindividualism in the law of property and of succession.

Means employed by the Code to attain the stability of the social order1. The Purification of the system of private ownership of its abuses (e.g. prohibitions in

donations inter vivos)2. The Closing of those channels upon which wealth has flowed in torrents from generation

to generation of a particular family (e.g. limited fideicommissary substitutions in Article863, and the increased free portion when children and descendants survive in Article 888)

3. The Emancipation of innocent persons from bondage of undue conservation which hasdenied them the rights to share in the estate of their parents (e.g. illegitimate children)

4. The Elimination of distant relatives who may succeed to property to the accumulation ofwhich they have not contributed anything (e.g. right to succeed without a will within the5th degree and no longer the 6th degree)

5. The Staying of the dead hand to prevent it from meddling with the affairs of the living(e.g. elimination of the substitutions known as pupilar and ejemplar)

Fundamental Changes in the NCC1. Greater freedom is given to the testator in the choice of the form for his will or testament

(i.e. Execution of holographic will has been permitted without witnesses or attestations)2. Greater facility in the probate of wills is provided or the introduction of the system of

probate during the lifetime of the testator (i.e. Probate can only be effected after thedeath of the testator in the prior legislation) anti mortem probate

3. The surviving spouse is given a better position in the law of succession (e.g. legitime

changed from usufruct to full ownership; higher degree in the order of succession inintestate succession)4. In the legitime of legitimate children and descendants (the mejora or betterment) has

been abolished5. The reservas and reversions (except reserve ironcal, which was reincorporated by

Congress) has been abolished

B. Subjects of Succession

1. Who are the subjects?

Article 775, NCCDecedents and Testators1. Decedent: a person whose property is transmitted through succession (generally

speaking, as he/she may or may not have left a will)2. Testator: a decedent who left a will

Article 782, NCCConcept of Heir (General)

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Anyone who succeeds to the whole or to a portion or fraction of the inheritance (understoodas the indeterminate mass or totality of the transmissible property, rights, and obligations ofthe deceased), whether by virtue of a will or by intestacy.1. includes all relatives who succeed by virtue of the laws of intestate succession2. includes all persons, whether relatives or not, who take what might be called the residuary

estate under a will

Kinds of Heirs1. Compulsory heirs

a. Those who succeed by force of law to some portion of the inheritance, in an amountpredetermined by law, of which they cannot be deprived by the testator, except bya valid disinheritance.

b. Succeeds regardless of the will of the decedent2. Voluntary or testamentary heirs (free portion)

a. Those who are instituted by the testator in his will, to succeed to the inheritance orthe portion thereof of which the testator can freely dispose; their right to thesuccession depends entirely upon the will

b. Succeeds by reason of a will3. Legal or Intestate heirs

a. Those who succeed to the estate of the decedent who dies without a valid will, or tothe portion of such estate not disposed of by will

b. Succeeds in the absence of a willLegatees and Devisees

1. Legatees: one who is given a gift of personal property by will2. Devisee: one to whom real property is one to whom real property is given by will

There are devisee(s) and/or legatee(s) only in testamentary successionThe devisee or legatee, by express disposition of the testator, succeeds him in a determinateor individualized thing or quantity, without continuing his personality

Importance of the difference between heir(s) and legatee(s)Although the difference between heir and legatee (or devisee), which is transcendental inthe Spanish law, has lost much of its importance in Philippine jurisdiction it does not mean thatthe distinction has been entirely abolished so as to render the provisions of the Code regardinginstitution of heirs useless or superfluous.

Article 887, NCCCompulsory and Intestate heirs distinguished

COMPULSORY HEIRS INTESTATE HEIRSCalled to succession by operationof law

Called to succession byoperation of law

Succeeds to his legitime evenwhen the testator has sodisposed of his property by will

Succeeds only when thedeceased has not disposed ofhis property by will

* an heir of whatever classification is absolutely free to accept or renounce the inheritance

Law on Legitime explained the law on legitime is a restriction, not on the freedom to the heir to accept or repudiate

the inheritance, but on the freedom of the testator to dispose of his property the fact of being a compulsory heir imposes no obligation to accept or receive the legitime

Kinds of Compulsory Heirs1. Primary

a. Those who have precedence over and exclude the other compulsory heirsb. Legitimate children and descendants (legitimate, legitimated, adopted)

2. Secondary

a. Those who succeed only in the absence of primary heirsb. The legitimate parents and ascendants

3. Concurringa. Those who succeed together with the primary or the secondary heirsb. The illegitimate children, and the surviving spouse

Primary Compulsory Heirs1. Legitimate Children and Descendants

a. Rationale: Since the law on legitime flows from natural law, it follows that relativesin the direct line should receive preference in the succession; and since in the

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ordinary course of nature, the father or mother should die ahead of the child, thelaw confers preferential legitimary rights upon the children and descendants.

b. Application: if there are children, all of them living and with capacity to succeed andnone of them has been disinherited, only such children succeed to the exclusion ofthe other descendants who may be existing at the time of the testators death.

Thus, the nearest in degree exclude the more remote, except in cases whererepresentation is proper (incapacity).

2. Legitimated Children (children legitimated by subsequent marriage of the parents) havethe same position as legitimate children and descendants.

a. Article 272,NCC: Children who are legitimated by subsequent marriage shall enjoythe same rights as legitimate children

b. Article 274,NCC: The legitimation of children who died before the celebration ofthe marriage shall benefit their descendants.

3. Adopted Children have the same successional rights, in relation to the adopting parents,as those of the legitimate child in relation to its parents

a. Article 189 (1), FC: For civil purposes, the adopted shall be deemed to be alegitimate child of the adopters and both shall acquire the reciprocal rights andobligations arising from the relationship of parent and child, including the right ofthe adopted to use the surname of the adopters.

Parents and Ascendants1. Legitimate and Legitimated (Secondary Compulsory Heirs)

a. Entitled to legitime only when the deceased does not have legitimate children anddescendants

b. Concurrence of illegitimate children and their descendants with parents orascendants of the deceased is not an obstacle to the forced succession of theparents and ascendants because the share of the illegitimate children are takenfrom the free portion and do not affect the legitime of the parents and ascendants

2. Illegitimate parents (Compulsory heir to the extent provided by Article 903)a. Article ___, NCC: the legitime of the parents who have an illegitimate child, when

such chilled leaves neither legitimate descendants, nor a surviving spouse, norillegitimate children, is one-half of the hereditary estate of such illegitimate child. Ifonly legitimate or illegitimate children are left, the parents are not entitled to anylegitime whatsoever. If only the widow or widower survives with parents of theillegitimate child, the legitime of the parents is one-fourth of the hereditary estateof the child, and that of the surviving spouse also one-fourth of the estate.

b. Compulsory heirs only in the absence of legitimate, or illegitimate children of thedecedent

3. Adopting parents (not a Compulsory heir, according to Tolentino, as the law issilent)

a. Article 342, NCC omitted by FC (impliedly repealed): the adopter shall not be alegal heir of the adopted person, whose parents by nature shall inherit from him

b. Article 190, FC: legal or intestate succession to the estate of the adopted shall begoverned by the following rules:

i. Legitimate and illegitimate children and descendants and the survivingspouse of the adopted shall inherit from the adopted in accordance with theordinary rules of legal or intestate succession;

ii. When the parents, legitimate or illegitimate, or the legitimate descendants ofthe adopted concur with the adopters, they shall divide the entire estate,one-half to be inherited by the parents or ascendants and the other half, bythe adopters;

iii. When the surviving spouse or the illegitimate children and the survivingspouse of the adopted, they shall divide the entire estate in equal shares,one-third to be inherited by the illegitimate children, one-third by thesurviving spouse, and one-third by the adopters;

iv. When only the adopters survive, they shall inherit the entire estate; and

v. When only collateral blood relatives of the adopted survive, then the ordinaryrules of legal or intestate succession shall apply.c. Article 189 (1), FC: For civil purposes, the adopted shall be deemed to be a

legitimate child of the adopters and both shall acquire the reciprocal rights andobligations arising from the relationship of parent and child, including the right ofthe adopted to use the surname of the adopters.

d. The fact that Article 190 FC enumerates the cases where adopters inherit by legalor intestate succession to the estate of the deceased adopted person (not makinghim generally a legal heir), and is silent as to their becoming compulsory heirs,indicated that the latter (compulsory heirs) was not intended. Adoption is for the

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benefit of the adopted, and unless the law clearly intends to favor the adopter, alldoubts should be resolved against him. Due to the silence of the law on legitimes,he cannot be entitled to the legitime of legitimate parents and in the law ofintestate, he is not given, in general, the same rights as a legitimate parent but onlysuch as are specifically provided in Article 190 of the Family Code.

Illegitimate Children1. acknowledged natural children2. natural children by legal fiction3. other illegitimate children (e.g. adulterous children (spurious))

Natural Children by legal fiction previously not granted successional rights in previouslegislation

a. Article 287, NCC (repealed by FC): illegitimate children other than natural inaccordance with article 269 and other than natural children by legal fiction are entitled tosupport such successional rights as are granted in this Code.

b. Article 269, NCC (repealed by FC): only natural children can be legitimated. Childrenborn outside wedlock of parents who, at the time of the conception of the former, were notdisqualified by any impediment to marry each other, are natural.

Construction of Article 887 NCC vis--vis illegitimate children1. Article 887 (4) and (5) are merged into one as a group of compulsory heir.2. Illegitimate children required to prove their filiation. They are not required to be first

recognized by their putative parents.

Enforcement of the Right1. Successional rights recognized by the New Code can be claimed only by those whose

parents die after the effectivity of the Code. To retroactively apply the new right wouldimpair the vested rights of heirs, and would amount to deprivation of property without dueprocess of the law.

2. Illegitimate children can claim successional rights even if they were born prior to theeffectivity of the Code, as the death of the parent and not the birth of the illegitimatechild, determines the right of such child to succeed.

Surviving spouse1. Valid marriage required between deceased and the survivor2. When marriage is null and void ab initio (as in bigamous and incestuous marriages), the

survivor in the supposed marriage is NOT a surviving spouse entitled to legitime3. But when the marriage is bigamous and the spouses contracted the marriage in good

faith, BOTH widows share equally in the portion which is the legitime of the survivingspouse (following the principles of the Laws of the Partidas)

4. When the marriage is merely voidable, the existing marriage remains valid and producescivil effects until set aside by the court having jurisdiction in a proper action forannulment.

Effects of Legal Separation1. Article 892 must be read in conjunction with Article 63 (4) of the Family Code (formerly

Article 106, NCC)a. Article 892, NCC:b. Article 63 (4), FC:

2. Guilty spouse excluded from succession, testate or intestate. Therefore, in case of legalseparation, the widow/ widower will be entitled to succeed only when he or she is theinnocent spouse

Effect of Reconciliation1. Article 66 (2), FC (formerly Article 108, NCC): the final decree of legal separation

shall be set aside, but the separation of property and any forfeiture of the share of theguilty spouse already affected shall subsist, unless the spouses agree to revive theirformer property regime.

2. If after such reconciliation, one of the spouses should die, the survivor gets his/herlegitime regardless of whether he or she is the guilty party.

Effect of Death before DecreeIf the death occurred during the pendency of the legal separation proceedings, the action isallowed to continue, not for the purpose of the suspension of the marriage (which is already

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dissolved by death) but for the purpose merely of determining whether there is no ground forlegal separation.

Effect of separation in factRight of legitime is preserved. The law cannot be expected to inquire into facts not judiciallyestablished.

Article 1003, NCCCollateral relatives

Articles 1004-1010, NCCApplications

a. Full blooded brothers and sisters (proceeding from the same father and motherinherit in equal shares

b. Concurrence of half brothers and sisters alone, Article 1007 applies. There is equaldivision of all the property of the common parent, irrespective of the time when theproperty was acquired.

c. Concurrence of full and half brothers and sisters, full blooded take portion ininheritance twice those of half blood brothers and sisters

d. When all the brothers of the decedent may have predeceased him; or the onlybrother or all the brothers may have repudiated the inheritance; or such brothersmay all be incapacitated: Nephews and nieces to succeed by their own right, andnot by the right of representation.

e. Concurrence of uncles and aunts with nephews and nieces: The law allows the rightof representation because the number of nephews and nieces will directly affect theapportionment should it be made per capita.

f. Concurrence of nephews and nieces alone: there is no need for the right ofrepresentation as there are no uncles or aunts who will be prejudiced.

g. Concurrence of full-blood and half-blood nephews and nieces: full blood and halfblood relationship of nephews and nieces taken into account in view of Article 1009,contrary to the generality that Article 975 seems to suggest.

h. Concurrence of brothers and sisters with nephews and nieces: brothers or sistersshall inherit per capita while nephews and nieces shall inherit per stirpes pursuantto Article 1005. Thus, brothers or sisters inherit their own right while nephews ornieces inherit by the right of representation.

i. Concurrence of nephews or nieces of half blooded brothers and sisters with niecesand nephews: same rule in Article 1005 apply in Article 1008. Brothers and sistersshall inherit in their own right (the whole blooded taking twice the share of thosehalf blood), while nephews or nieces inherit by the right of representation (thewhole blooded taking the portion of their father/mother which is double to thatpertaining to the father/mother of the half blooded nephews and nieces.

Article 1009, although it does not state any order of preference, must be understood inconnection with the general rule that the nearest relatives exclude the father.

2. Capacity to Succeed

a. Determination

Article 1034, NCC1. Paragraph 1: inasmuch as succession opens at the death of the decedent, it is only logical

that it is only then that the capacity of the heir is determined.2. Paragraph 2: it is only a clarification of the general principle, because as long as the

judgment of in second, third, and fifth causes of unworthiness has not become final or themonth allowed in the fourth cause has not elapsed, the reason for incapacity cannot exist.

Therefore, the determination as to whether capacity to exist should be suspended up to

that time.3. Paragraph 3: in case the institution is conditional, there is taken into consideration, notonly the moment of death of the decedent, but also the time when the condition isfulfilled, because it is why at the latter moment that the rights to the succession areconsolidated and produce their effects.

Conditional institutionWhat is referred in paragraph 3 is suspensive condition, because this is the condition on thefulfillment of which the right depended thereon are perfected.

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1. Death (of heir) before condition. As discussed in Article 8778, the death of the heir,devisee, or legatee before the happening of the suspensive condition renders thetestamentary disposition inoperative and without effect. He does not transmit anything tohis heirs, even if his death occurs after that of the testator. No right has been vested uponthe heir, et.al., because the condition has not yet been fulfilled.

2. Condition after death. Even if the condition should happen after the death of the hair,et.al., his own heirs cannot claim any right through him, because his death hasextinguished his personality and capacity to succeed. He would be wanting in the capacityto succeed at the time of compliance with the condition.

Article 1039, NCC Reason for the adoption of the new article: the provision is in line with the principle

established in Article 16, paragraph 2, which provides intestate and testamentarysuccessions, both with respect to the order of succession and to the amount ofsuccessional rights and to the intrinsic validity of testamentary provisions, shall beregulated by the national law of the person whose succession is under consideration,whatever may be the nature of the property and regardless of the country wherein saidproperty may be found.

Rule as to the intrinsic validity of the provisions of the will: as regards the intrinsic validityof the provisions of the will, as provided by Articles 16 (2) and 1039 of the Civil Code, the

national law of the decedent must apply.

CAYETANO VS. LEONIDES 129 SCRA 524Facts: Adoracion Campos, a citizen and permanent resident of USA died and left a will executedin the said country. She died leaving properties both in the Philippines and the USA. As acompulsory heir, Hermogenes, Adoracions father, executed an affidavit of Adoracion whereby headjudicated into himself the ownership of the entire estate of Adoracion.Nenita, the sister of the decedent, filed a petition for reprobate of the will which was allegedlyexecuted in the USA and for her appointment as administrator of the state of the said decedent.

The petitioner argue that since the respondent judge allowed the reprobate of the will,Hermogenes was divestive of his legitime which was reserved by law for him.

Issue: whether the Philippine law shall apply in as much as the National Law of the deceaseddoes not provide legitime?

Held: Under Article 16 (2) and Article 1039 of the Civil Code, the law which governs Adoracionswill is the law of the USA which is the National Law of the deceased. It is therefore evident thatwhatever public policy or good customs maybe involved in our system legitimes. Congress hasnot intended to extend the same succession of foreign nationals. For it has specifically chose toleave the amount of successional rights to the decedents national law. Specific must prevailover general law.

b. Who may succeed?

Article 1024, NCCCapacity presumedEvery person has capacity to succeed mortis cuasa. The presumption of the law, in the absenceof some provision excluding him, is always in favor of capacity.

Only persons may succeed mortis cuasaIn order to be considered a person, either natural or artificial, it is necessary to have legalexistence or juridical personality. Once endowed with juridical personality, the persons capacityto succeed follows as a matter of course, unless some special cause for disqualification orincapacity exists.

Requisites for the possession of capacity to succeed

1. General capacity of the person, whether natural or artificial, according to law2. No incapacity or prohibition to succeed expressly provided by law.

Applicability of rules of incapacity (2nd paragraph construed)Provisions relating to incapacity apply equally to testate and intestate succession. This is ageneral statement which is not supported by the specific provisions of the law providing forincapacity to succeed. Incapacity under paragraphs 1 to 5 of Article 1027, as well as Article 1028are applicable only to testamentary succession. Thus, the provision of the second paragraphmust be considered only as a general rule, without prejudice to the determination of the truescope of specific disqualifications.

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Kinds of incapacity1. Absolute per se: those absolutely incapacitated are disqualified to succeed in any form,

to anyone, or to any quantity of property. (already died at the time of death of decedent)2. Relative or par accidens: those who are relatively incapacitated are disqualified only

with respect to certain persons or property. (not yet alive)3. Unworthiness (A relative incapacity): by reason of certain acts a person who has

capacity to succeed is deprived of it.

Article 1025, NCC

Conditions prescribed by Article 41For civil purposes, the fetus is considered born if it is alive at the time it is completely deliveredfrom the mothers womb. However, if the fetus had an intra-uterine life of less than sevenmonths, it is not deemed born if it dies within twenty-four hours after its complete delivery fromthe maternal womb.

Judicial Existence Essential1. Although the conceived child is considered born for all purposes favorable to it,

nevertheless, it lacks true juridical personality. It acquires personality only when it issubsequently born with the conditions mentioned in Article 41.

2. When the institution is under suspensive condition or from a day certain, the successiondoes not really open except from the happening of the condition or the arrival of the daycertain. In such cases, even if the unborn person instituted has not yet been conceived atthe time of the death of the testator, if it is subsequently born and has legal personality atthe time the condition happens of the day arrives, then it has the capacity to succeed. (ifthere is condition, it will prevail over the death)

Deviating Comments by authorities on capacity to succeed1. Manresa. In certain cases a child not even conceived at the time of the death of the

testator may yet succeed mortis causa. Manresas example however is really theinstitution of a class and not of particular individuals, hence the presence of any numberwithin the class at the time the succession opens makes the institution valid; whereas, ifthe class does not exist at all, the institution is void.

2. Manresa. The actual existence of an association or corporation at the time of the death oftestator is not essential. The fact of actual existence, he maintains, is different form thefact of being permitted by law. He maintains that the existence of the corporation at thetime of the testators death does not render it incapacitated to succeed, if it issubsequently organized.

3. Scaevola. Strictly adhering to legal principles, Manresas corporation cannot succeed, butthat justice and the dictates of practical existence demand that the probable public andprivate utility that may be produced by such dispositions should not be nullified.

Sanchez Romans view in consonance with concept of capacity to succeed

1. Associations or corporations which do not legally exist at the time of the opening ofsuccession are incapacitated to succeed. Permission by the law is a necessary result oftheir legal existence, and its absence presupposes the inexistence of the juridical entity.

2. There is absolute incapacity when there is no civil personality. Incapacity to succeed is aconsequence of the inexistence of natural or juridical parsons before the civil law.

3. The heir who dies before, as well as he who is not yet conceived at the time of the deathof the testator, cannot succeed because of lack of juridical personality at the precisemoment when the transmission of successional rights takes place.

Article 1026, NCC

Capacity by law

Not all entries mentioned herein are persons having juridical existence. They succeed, not byvirtue of the general rule of capacity, but by reason of the special provision of this articleconferring capacity upon them.

Article 1029, NCC

Scope of Application1. The disposition referred to should not be confused with one which has merely the

character of a condition, burden or charge imposed upon an heir, legatee or devisee.

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2. the article contemplates a case where the testator has made a disposition for theapplication of the whole or part of his property for prayers and pious works for the benefitof his soul, but has not specified the particular prayers or pious works to which hisproperty shall be applied.

3. The disposition made herein is applicable only when the testator has not providedotherwise in his will. The moment the testator specifies the application to be made, or theperson charged with such duty, then this property cannot be distributed in the mannerprescribed by the article.

4. if the testator should dispose of his property only for pious works, without any mention ofprayers; or if he merely disposes of it for prayers, without referring to pious works, thedistribution provided for in this article cannot be observed.

Soul as beneficiaryThe real beneficiary in such a will is the soul of the testator. Although death extinguishes juridicalexistence, this article allows dispositions for the benefit of the soul, giving due respect to thereligious and moral ideas of the deceased. Thus, if the testator merely states that he instituteshis soul (something that has no legal existence) it is believed that the present article will apply.

Article 1030, NCC

Application of the articleThis article contemplates a disposition in favor of persons who may be unknown to the testatorA class herein is instituted, and the class is determined. It is the determination of the individualsbelonging to the class that is left to the persons mentioned by the law.In case the testator has not designated the person to make the designation of the poor and thedistribution of the property among them, the executor or administrator of the estate shall do so.Under the Rules of Court, there will invariably be an executor or administration for thesettlement and distribution of the estate in a case as contemplated by the article. Theintervention of the justice of the peace, the mayor, and the municipal treasurer will never takeplace.

Appeal to the Court*under the present state of the law, the determination that there are none who qualify as poorcan be contested by persons claiming to be poor. The selection of some as poor can also beimpugned by others.*the Court cannot be considered as a mere rubber stamp to give the seal of approval towhatever may be reported to it. However, there is a very strong presumption in favor ofupholding the selection or conclusions of the persons designated to make the determination oftwo are poor, in the absence of manifest error or bad faith, as such persons are practically theagents of the testator in making the selection.

None qualifying as poor (intestacy)*When none qualify as poor, the property should be distributed as in case of intestacy, theportion originally destined for the poor passing to the legal heirs of the testator.

*unlike Article 1029, the present article is an institution of a definite and determined class,whose existence is essential for the validity of the testamentary disposition. In case, thus wherethe express will of the testator cannot be given effect for legal reasons, the law supplies hispresumed will in the form of intestate succession.

PARISH PRIEST OF VICTORIA VS. RIGOR 89 SCRA 493Facts: Father Rigor, the parish priest of Pullilan, Bulacan, died on August 9, 1933 which wasprobated by the CFI of Tarlac. In his will, he named as devisees, his nearest relatives, his threesisters and his cousin. In addition the will contained the following controversial request to hisnearest male relative who would study for the priesthood.

The heirs of Father Rigor, prayed that the bequest declared inoperative and that they be

adjudged as the persons entitled to said rice lands since no nearest male relatives of the testatorhas ever studied for the priesthood.

Issue: whether the bequest to a nearest male relative who would study for the priesthood couldbe operative despite no male relative ever studied for the priesthood.

Held: The Court held that the bequest refers to the testators nearest male relative living at thetime of his death and not to any indefinite time thereafter. In order to be capacitated to inherit,the heir or legatees must be living at the moment the succession opens, except in case ofrepresentation when it is proper (Article 1025,CC). To construe them as referring to the nearest

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male relative at anytime after his death would render the provisions difficult to apply and createuncertainty as to the disposition of his estate.

c. Who are incapable of succeeding?

Article 1027, NCC (relative incapacity)

Extent of incapacity1. Disqualifications (1-5) apply only to testamentary succession. The persons disqualified are

disqualified only under certain circumstances, and in relation to particular testators. Theirdisqualification is thus only relative.

2. Disqualification (6) is misplaced, it has no common basis with the others preceding it. Thedisqualified entities are absolutely incapacitated. They cannot succeed any person at anytime or under any circumstance by testament or by intestacy, this paragraph should haveformed part of Article 1025.

Disqualificationof Priest or Minister1. The purpose of the provision is not to restrict the liberty of the testator to dispose of his

property, but to safeguard the legal heirs from being defrauded by suggestions of someconfessors who may induce penitents to dispose of their property in the manner and to thepersons contemplated by the prohibition.

2. If the testamentary disposition was made before the last illness, it produces legal effecteven if the priest received the confession of the testator or administered spiritual aid tohim during his last illness.

Will during the last illness1. Last illness means that of which the testator died. It is immaterial whether the illness was

protracted or brief, chronic or acute. The illness must be such, however, that there isdanger that the testator may die of it.

2. it is not essential that the testator die of the particular illness during which the will wasmade. If it cannot be determined whether at the time of his death he was alreadycompletely cured or not of the illness during which he made his will, the testamentarydisposition remains inoperative even if the death be due, not to such illness, but to someother cause such as an accident.

3. if the testator recovers from his illness and he enjoys normal health for a sufficient lengthof time as to enable him to reflect on the wisdom and the consequence of thetestamentary disposition he made during his illness, then his failure to revoke thetestament must be considered as a ratification of the same. But if no such sufficient lengthof time has elapsed, tacit confirmation cannot be presumed and the nullity of thedisposition remains.

Confession during last illness The law requires that the priest must have heard the confession of the testator during his

last illness. A priest, however, who does not hear the confession of the testator during his

last illness, but acts merely as his adviser, staying by his side during such illness, is notincapacitated by the article. The law has extended expressly the disqualification to ministers of other religions, which

do not provide for confession, like those by Catholic priests, but for spiritual aid orassistance before death.

Will made after confession The prohibited disposition is that which the testator may make in favor of the priest who

may have shriven him; the verbs used are both in subjunctive mode, but they give rise tothe inference that the confession takes place before the making of the testamentarydisposition.

If there has been undue influence by the confessor even before the will was made, the

remedy is not under the present article but under Article 839, which provides among theother cause of disallowing a will: if it was procured by undue and improper pressure andinfluence on the part of the beneficiary or some other person.

When no testamentary benefit to be inoperative, the testamentary disposition must be in favor of the disqualified. When

the disposition is not equivalent to making such persons as heirs, legatees or devisees, thedisposition may be valid if it does not give any benefit to them.

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The law does not incapacitate the disqualified from being executors since under the Rulesof Court, the executor becomes as such only after letters testamentary have been issuedto him, and all of his acts are subject to the supervision and approval of the probate court.He may receive compensation for his services as executor (just payment and not an act ofliberality) but such compensation is regulated by law.

It is valid that the testator leave certain sums for the confessor or his relatives within the4th civil degree for the performance of certain determinate services, such as writing abook, etc.. when a person has the qualifications for the work.

No prejudice to intestacy if the confessor or minister or his relatives within the 4th civil degree are also relatives of

the testators are compulsory heirs, it is clear that they get their legitimes, because theseare given to them by force of law and not by the will of the testator ( intestate succession).If they, however, may succeed only in case of intestacy, or even if compulsory heirs as tothe free portion is concerned, the prohibition applies.

A void testamentary disposition does not absolutely disqualify the relatives formsucceeding, if they are entitled to succeed according to the order of intestate succession.

There will be intestacy with respect to the past ineffectively disposed, unless, it passes byright of accretion to other heirs.

If the priest or his relatives happen to be the only intestate heirs, they get the property,

not as testamentary heirs but intestate heirs.

Incapacity of guardian a testamentary disposition made by a ward in favor of his guardian before the approval of

the final accounts of the guardianship is void, even if the ward dies after the approval ofsuch accounts.

The determined point with respect to time is the date of the final approval of the finalaccount. Final accounts means that which is submitted by the guardian upon thetermination of his authority as guardian, either by his removal or resignation or thedisappearance of the cause of guardianship.

What guardian coveredAll guardians, whether a guardian of his person or a guardian for his properties, are coveredby the disqualification. They are disqualified as long as they have any responsibility asguardians.

Relatives of guardian the last does not disqualify the relatives of the guardian to succeed the ward by will

if it can be shown that the guardians relatives have been instituted merely as an indirectmeans of enabling the guardian to benefit from the inheritance left by the ward, then theinstitution is void, not because of the present article but by reason of Article 1031.

Incapacity of Testamentary Witness

The exception provided by Article 823 should be read into the provisions of paragraph 4 of thepresent article. If there are three other component witnesses to the will, the fact that thebeneficiary attested such will does not have any material effect upon the existence or validity ofthe will. His intervention thus is not essential to the effectivity of the disposition in his favor.

No beneficial interestA testamentary disposition which does not give a beneficial interest to the witness does notdisqualify him. Thus, a provision giving to the witness a trust or power to sell does notconstitute such an interest as will render him incompetent or will avoid the testamentarydisposition.

Incapacity of physician, nurse, or druggist, etc.

the physician, surgeon, nurse, health officer or druggist who took care of the testatorduring his last illness has such a great deal of influence over the mind of the testator thathe is absolutely prohibited to succeed under the testators will.

To be disqualified, the recipient must have taken care of the testator during his lastillness, in a manner that is continuous. A doctor called in for consultation by the physicianattending the testator would not be disqualified, nor the pharmacists who merely preparedthe medicine for him.

It is not necessary that the recipient be a legal practitioner of his profession. any personpracticing medicine legally or illegally and even their assistants are deemed included inthe prohibition.

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The disqualification applies only when the will was made during the last illness of thetestator and after the beneficiary had at least begun to take care of him.

Provision for remunerationA testamentary provision which is remuneratory (payment of professional fees) is valid assuch disposition is not a gratuitous act but simply a compliance with an obligation to pay forservices rendered.

Applicability to intestacy The paragraphs of the present article, except the last, refer only to testamentary

succession and does not include intestate succession.

The purpose of these disqualifications is to avoid testamentary disposition in favor ofpersons who are conclusively presumed to have influenced the making of the will in theirfavor by reason of their special relations to the testator. This reason cannot exist inintestate succession, where it is the law and not the decedent that disposes of theproperty in favor of the heirs.

Exceptions as to close relativesThe exception in paragraph 3 does not extend to the other paragraphs. The different paragraphsof the present article cam from different independent articles of the old Civil Code and the Code

of Civil Procedure, and it was only in Article 753 of the old Civil Code, referring to thedisqualification of the guardian, that the exception in question was provided.

Article 1028, NCC

Article 739

Application of the ArticleThese disqualifications are based on considerations of morality, and are intended to preventcircumventing of the prohibitions on donations by resorting to the making of a will as means ofdisposing of property in favor of the disqualified donee.

Article 1031, NCC

(Y caused the death of grandchild of X)

Interposition prohibited What the law prohibits to be done directly cannot be done by indirection. The article

renders void attempts to go around the prohibitions against dispositions in favor ofincapacitated persons.

The interposition may be made in either of these ways:o By the institution of a person who has capacity, with a verbal charge or direction to

deliver the inheritance to the incapacitated persono By disguising the disposition in the form of a contracto By simulating debts in favor of the incapacitated

Proof of interposition The prohibited interposition must always be proved, it cannot be presumed.

It is enough to show the absence of benefit to the person instituted, and the ultimateenjoyment of the inheritance by the incapacitated person.

The property need not be actually delivered to the incapacitated person, if it is he whoreally enjoys and benefits from it.

Who are disqualified persons The parties who are really disqualified are those who are in the position to wield an

influence upon the mind of the testator: the priest, the guardian, and the attestingwitness.

Dispositions made in favor of their relatives who are expressly mentioned by the law arerendered void, not because those relatives are disqualified, but because the lawpresumes juris et de jure that they are merely interposed for the benefit of the realincapacitated person. Hence, a testamentary disposition instituting an heir or legatee, withthe intention that the relatives mentioned should ultimately be the real beneficiaries, isnot such an interposition as is prohibited by the article.

They do not include those who are such by reason of unworthiness. The institution of theunworthy person, with knowledge of the cause of unworthiness, is by itself a tacit pardon

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by the testator. If such institution is valid, there is no reason why the interposition shouldbe void.

(X gave Y, guilty of adultery/ convicted of adultery)

Frustration of testators intent When a testator disposes of his property in a prohibited manner, he must be held to

assume the risk that his will be frustrated.

Even if he does not intend the person interposed to benefit under his will, the law should

discourage violations of its provisions, and the solution suggested will at least tend tohave the effect.

Article 1032, NCC unworthiness

Nature and basis of unworthiness The incapacity is based on considerations of morality, which have made the law deprive of

inheritance those who have made themselves unworthy of it according to ordinary socialappreciation.

Unworthiness produces its effects, even against the will of the deceased, as when hepardons the act of unworthiness in a manner different from what the law prescribes inArticle 1033.

The causes of incapacity by reason of unworthiness are applicable to testate and intestatesuccession, despite the fact that some paragraphs thereof expressly refer only totestator

Incapacity by reason of unworthiness is not absolute, it does not disqualify a person tosucceed every other person, but merely disqualifies him to succeed the particular personagainst whom the act of unworthiness has been committed.

Abandonment of Children abandonment of children is a ground for disinheritance (Article 920)

Abandonment as a cause of unworthiness, is not used in the limited sense of havingexposed the children to the danger of death, but in the broad and general sense of notgiving proper care to the children, not supporting them, and not attending to theirphysical, moral or educational welfare.

Inducing immorality, Attempts against virtue Similarly discussed under Article 920

To be disqualified under these grounds, there must be some positive act showingperversion on the part of the parent; he must have led or persuaded the daughter to live acorrupt of immoral life, or he must have made an attempt against her virtue.

Mere act of inducing his daughter to lead a disgraceful life, even if the latter refuses toobey him, would be a sufficient cause for unworthiness, inasmuch as the unsuccessful actshows the moral perversity of the parent.

Mere tolerance by a parent of the immoral or corrupt life which his daughter has chosen to

live, however, does not make him unworthy of succession.

Attempt against life Also discussed as a ground fro disinheritance under Article 919

Elements of this cause to operateo The heir must have made an attempt against the life of the decedent, his or her

spouse, descendants, or ascendantso There must have been a final conviction of such attempt

The degree of the commission of the crime is not material: whether there may be amitigating circumstance does not alter the situation. What is important is that there was ahomicidal intent. Further, where the heir is merely an accomplice, he remains to be

unworthy. It is essential that the heir must have been convicted by final judgment to become

unworthy. Hence, when the case is dismissed because the heir dies before the judgmentcan be rendered, or because the crime has prescribed, or because of some lawful defense,there will be no unworthiness.

Executive clemency or prescription of penalty does not save him from unworthiness tosucceed inasmuch as such facts imply the final conviction.

False accusation Elements of cause are discussed under Article 919

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False accusation includes not only the filing of complaint against the decedent withoutcause, but also declaring or testifying falsely as a witness against him.

False testimony is equivalent to false accusation; but one who merely testifies to the truth,even if it may incriminate the decedent and be the basis of his conviction, does notbecome unworthy.

Failure to report violent death Requisites of the cause:

o The heir must be of full ageo He knows of the violent death of the decedento There is an obligation to make an accusationo Failure of the heir to report such death to the proper authorities within one month

This cause of unworthiness will never have the occasion to operate, as there is noobligation to make an accusation for violent deaths under Philippine law. Under Philippinelaw, deaths occasioned by crime (violent deaths) are prosecuted de oficio or at theinstance of the government, and no one is required to make any accusation.

In the event that there should be some time a law requiring persons who have knowledgeof violent deaths to denounce the same, the cause of unworthiness will apply only whenthere is a failure within one month to report such death. The heir, devisee or legateeescapes liability by reporting the violent death even if he omits to reveal the identity of

the author of the crime or even helps him to escape.

Adultery of concubinage The heir, devisee or legatee who is convicted of adultery or concubinage with the spouse

of the decedent is unworthy to succeed the offended decedent. The mere commission ofthe offense is not enough to disqualify.

The testators spouse is not rendered unworthy by the article. Only his or her paramour isdisqualified to succeed the offended spouse.

If the offended spouse asks for legal separation, on the ground of adultery or concubinage,and it is decreed, the guilty spouse is rendered incapacitate to succeed the offendedspouse ab intestate or by a will already existing at the time of the legal separation, under

Article 63 of the Family Code: (4) The offending spouse shall be disqualified frominheriting from the innocent spouse by intestate succession. Moreover, provisions in favorof the offending spouse made in the will of the innocent spouse shall be revoked byoperation of law.

The article does not disqualify the guilty pair from succeeding each other. Under Article1028 in relation to Article 739, however, they cannot succeed each other by will ortestament.

Acts relating to will the acts constituting the cause of unworthiness

o causing the testator to make a willo causing the testator to change an existing willo preventing the decedent from making a willo preventing the testator from revoking his willo supplanting, concealing, or altering the testators willo falsifying or forging a supposed will of the decedent

The first four acts must have been committed through fraud, violence, intimidation, orundue influence. The last two acts by themselves, executed in any manner, will causeincapacity.

Effects of unworthiness Incapacity by reason of unworthiness disqualifies a person from succeeding to the estate

of the person against whom the act of unworthiness has been committed.

Loss of legitime applies to the causes of unworthiness, even if the express provision onloss of legitime merely does away with the cause of doubt as to the effect of unworthinessupon the legitime. The reproduction of Article 761 of the old Civil Code in Article 1036 inpresent code shoes clearly by implication that the intention of the law is to exclude thecompulsory heir who is unworthy from his legitime, but preserving the right ofrepresentation in the descending line, just as in the case of disinheritance. Article 1035uses the words persons excluded from inheritance in referring to the unworthy heir, andexclusion can only mean total exclusion from the inheritance including the legitime.

Summary of the effects

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Disqualification by reason of unworthiness is a kind of legal disinheritance. It is a penaltydeclared by law ___ ___ ___ offenses committed by the heir, etc. against the decedent.

The law cannot permit that the inheritance be acquired in full or in party by those guilty ofthese offenses against the deceased. The effect of unworthiness is thus an exclusion fromthe entire inheritance; it causes constitute impediments to success.

The unworthy heir, etc., is treated by the law as if he did not exist, or had predeceased thedecedent. He inherits nothing.

On donations Donations inter vivos are not affected by the incapacity of the donee to succeed the

donor. Such donations shall be considered as having been made to strangers, even if thedonees should be compulsory heirs.

It should be noted that the act of unworthiness may constitute an act of ingratitude whichwould entitle the donor, during his lifetime to revoke the donation.

Article 1033, NCC

Pardon of unworthiness The testator is given the power to condone the causes of unworthiness. Since the

incapacity arises from the offense or act committed against the decedent, it is only

reasonable that the latter should be given the right to determine whether the incapacityshould subsist or not.

The pardon may be either express or implied. The forms of such pardon are limited tothose expressly specified by the law, no other form being admissible.

o Express pardon: made by the execution of a document or any writing in which thedecedent condones the cause of incapacity. The only cardinal requisite is that thepardon must be after the act of unworthiness has been committed.

o Implied pardon: tacit or implied pardon of the cause of unworthiness is effected ifthe testator had knowledge thereof at the time he made the will. The mere silenceof the testator, or his omission to expressly disinherit the offender, is not tacitpardon. Reconciliation, like what can be made to make disinheritance ineffective,cannot restore the unworthy heir in such case.

Exclusive clemency, or pardon by the President, does not erase the unworthiness orincapacity of the heir.

Revocation of PardonWhether the pardon of unworthiness can be revoked or not depends upon the manner in whichthe pardon is made.

if the pardon is express, or made in writing other than a will, then the pardon isimmediately operative and irrevocable

if the pardon is tacitly made by instituting the disqualified person in a will, the subsequentrevocation of the will or of the institution should be considered as rendering the pardonineffective. As the institution does not become operative except upon the death of the

testator, the institution never became effective when the institution or the will itself hasbeen revoked. The same result follows if the will is void because it lacks the formalitiesrequired by the law.

Effect of pardon once the act of unworthiness is pardoned, the heir is restored to full capacity to succeed

the decedent, as if the cause of unworthiness had never existed. The capacity that has been recovered cannot cease except by a new cause.

d. effect of alienations by the excluded heir

Article 1036, NCC

Validity of alienation The validity of alienation made by the disqualified heir before the declaration of incapacity

is made to depend upon the good faith of the transferee, irrespective of the good or badfaith of the heir who made the alienation.

If the transferee acted in good faith, or without the knowledge of the facts which renderthe transferor unworthy, the alienation, whether gratuitous or for a valuable consideration,is valid as to such transferee.

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e. rights of the excluded heir

Article 1035, NCC

Representation of unworthy heir Unworthiness disqualifies a compulsory heir from succeeding even to his legitime. His act,

however, being personal, should prejudice the innocent children and descendants of anunworthy child or descendant.

Application of Article 1035 Article 1035 provides for the representation of the unworthy child or descendant by his

children and descendants. Only a child or descendant can be represented; unworthy parents and ascendants, or the

surviving spouse cannot be represented.

If the unworthy child or descendant does not himself have children or descendants, hisother heirs cannot acquire his rights, which are reserved by the article only for his childrenand descendants.

Amounts transferred The children and descendants of the unworthy child or descendant shall acquire his rights

to the legitime. If the unworthy child or descendant is the only compulsory heir, or if when concurring with

the children or descendants who are compulsory heirs there is no substitute appointed,then there shall be intestate succession. The children or descendants of the unworthy heirwill get not only their parents legitime but also whatever part of the free portion may besubject to distribution among the intestate heirs.

Article 1037, NCC

Indemnity for expenses The disqualified person who has entered upon the property may have incurred necessary

and useful expenses, as well as expenses for ornamentation, on the hereditary property. When he is obliged to return the property to the rightful heir, his right to indemnity for

such expenses or to remove the improvements he has made depends upon his good orbad faith.

The rules on possessors in good faith or in bad faith shall be applicable. Necessaryexpenses for preservation therefore must be reimbursed to every possessor, whether hebe in good faith or in bad faith.

Article 1014, NCC

Sources of provisionThis article was taken from Rule 92 (now Rule 91, Section 4, ROC)

Rule 9, Section 4, Rules of Court- When and by whom claim to estate filed. If a devisee, legatee, heir, widow, widower or

other person entitled to such estate appears and files a claim thereto with the court within5 years from the date of such judgment, such parson shall have possession of and title tothe same, or if sold, the municipality or city shall be accountable to him for the proceeds,after deducting reasonable charges for the care of the estate; but a claim not made withinsaid time shall be forever barred.

f. liabilities of the excluded heir

Article 1038, NCC

(what to return: property and fruits, accessions, rents)

Restitution with fruits The obligation to make restoration (restitution of the hereditary property, together with all

its fruits and accessions, to the rightful owner) is imposed upon all incapacitated persons,whether the incapacity be absolute, relative, or by reason of unworthiness.

The law here conclusively considers the incapacitated heir as a possessor in bad faith.Whatever the true nature of the possession, whether in good or bad faith, the

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incapacitated person returns the thing with its accessions and the fruits and rentals he hasreceived or could have received through the exercise of reasonable diligence.

If the incapacitated person has not received rentals, but has himself occupied thehereditary property; it is just that although he does not materially receive the rentals froma 3rd person, he should be obliged to pay the reasonable amount of rentals, which wouldbe the true measure of the benefit he receives.

Improvements and deteriorations

Outside of the matters covered by Articles 1036, 1037 and 1038, the rights andobligations of the incapacitated persons who has entered upon the hereditary property aregoverned by the general rules applicable to possessors, in which the determining factor isgood or bad faith.

This includes such matters as the right to improvements and the liability for losses anddeteriorations.

g. prescription of action

Article 1040, NCC

Action to recover inheritance

As a consequence of Article 1038, a limit should be fixed as to the time within which theaction to compel such restitution may be brought, i.e., 5 years from the moment ofpossession by the disqualified person.

The action is not one solely for the purpose of declaring the incapacity of the heir who hastaken possession of the hereditary property. The action is essentially to compel such heiror legatee to restore the property, its accessories, fruits and rentals; but where the

judgment to that effect depends upon a finding in the same cause that the heir or legateein possession is incapacitated.

Parties to action plaintiff

o Those who may have an interest in the succession, obviously including those who

would inherit the property once the incapacity of possessor is declared.o If no substitution is provided and the right of accretion does not exist, and there are

several intestate heirs, the action pertains in the first instance to those of thenearest degree; if they do not wish to bring the action, then those next in degreemay bring it, and so on in their order or succession.

Defendanto If at the time the action is brought, the property has passed to the heirs of the

incapacitated person, such heirs may be made defendantso If the property has been alienated to the incapacitated person, the transferred is

the proper defendant.o This is based on the principle that neither the heirs nor the transferee of the

incapacitated person can acquire a greater right that he has. This is withoutprejudice, of course, to the provision of the Spanish Mortgage Law and the LandRegistration Law.

Effects of administration proceedings if the administration proceedings have been instituted for the settlement of the estate of

the testator, and in such proceedings an order of distribution is issued by the court, inwhich property is adjudged to a person who is incapacitated, it may be asked whethersuch adjudication is conclusive and can no longer be attacked once the administrationproceedings have been terminated.

The conflicting rights to the property of the deceased are to be litigated, and the questionof who is entitled to the properties left is determined, in the administration proceedings.

The determination is conclusive upon all parties interested who may have notice of suchhearing, whether actually appearing therein or not therein. Thus, if in the order ofdistribution, property of the deceased is given to an incapacitated person, suchadjudication will be conclusive upon all those who had notice of the hearing before thedistribution. A sensu contrario, it does not bind those who have no notice of the hearing.

C. Object of Succession

Article 776, NCC

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What inheritance includes The inheritance does not include everything that belongs to the deceased at the time of

his death. Inheritance is limited to the deceaseds property, rights, and obligations not extinguished

by his death. In addition, however, to the transmissible rights and obligations existing at the time of the

decedents death, all property accruing thereto from that time will pertain to the heir.

Rights and obligations extinguished by death (enumeration)1. Those arising from marriage, either with respect to the persons or as regards the propertyof the spouses.

2. The action for legal separation, which belongs only to the innocent spouses.3. The action to annul marriage.4. The obligations to give legal support, except in cases expressly provided by law.5. The right to receive support.6. The rights of patria potestas7. The right of the guardian.8. The right of usufruct.9. The right of the donor to revoke the donation by reason of ingratitude of the donee, if he

does not revoke the donation even if he can do so.

10.The rights arising from agency, nut not the effects of the agency already executed.11.Criminal responsibility.

Rights which are intransmissible1. Rights arising from public law (e.g. suffrage and public employment)2. Private rights founded on purely personal relations3. Private rights whose duration is limited by law to the lifetime of the owner4. Private rights which require the intervention of the owner for their exercise

Rules observed1. Rights which are purely personal, not in the inaccurate equivalent of this term in

contractual obligations, but in its proper sense, are, by their nature and purpose,

intransmissible, for they are extinguished by death (e.g. civil personality, family rights,discharge of public office).

2. Rights which are patrimonial or relating to property are, as a general rule, notextinguished by death and properly constitute part of the inheritance, except thoseexpressly provided by law or by the will of the testator (e.g. usufruct, personal servitudes).

3. Rights of obligation are by nature transmissible and may constitute part of the inheritance,both with respect to the rights of the creditor and as regards the obligations of the debtor.Exceptions:

a. Those which are personal, in the sense that the personal qualifications andcircumstances of the debtor have been taken into account in the creation of theobligations.

b. Those that are intransmissible by express agreement or by will of the testator.

c. Those that are intransmissible by express provision of law, such as life pensionsgiven under contracts.

Obligations of deceased Debts: The provisions of the Rules of Court on the settlement of the estate of the

deceased person cannot be overlooked. The heirs of the deceased are no longer liable forthe debts he may leave at the time of his death. Such debts are chargeable against theproperty or assets left by the deceased. Only what remains after all such debts have beenpaid will be subject to distribution among the heirs. If the decedents property is notsufficient to cover all of them, the heirs cannot be made to pay the uncollected balance.

Money debts: Only money debts are chargeable against the estate left by the deceased,those are the obligations which do not pass to the heirs, but constitute a charge against

the hereditary property. Other obligations which do not constitute money debts are not extinguished by death, and

must still be considered as forming part of the inheritance (e.g. lease, obligation to payrent, deliver land sold by the decedent, especially sale by installment).

(Relate Section 1311, NCC; especially when estate passed on to the heirs prior or withoutproceedings).

Article 781, NCC

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Tolentino: Article 781 erroneous Article 781 is not only a superfluity but also creates an erroneous concept of inheritance. It

is juridically erroneous to say that inheritance includes such accession. An heir, even without the article, is entitled to the accessions and fruits which have

accrued since the death of the decedent, by virtue of the right of accession. Inheritance is property acquired mortis causa; it is transmitted by death. The accession to

such property is not transmitted by death; it is acquired already by virtue of the right ofownership which is vested from the moment of the predecessors death in the successor.

Article 1311, NCC

Article 1429, NCC

Article 1178, NCC

Applications of Article 1178 when there is no stipulation with regard to the assignment of an obligation, all rights

acquired by virtue of an obligation are transmissible in accordance with law. An instrument evidencing a credit may be transferred or assigned by the creditor to

another, and the transferee would be considered in lawful possession of the same as well

as of the credit, unless the contrary is shown.

Article 1347, NCC

Outside the commerce of man All kinds of things and interests whose alienation or free exchange is restricted by law or

stipulation, which parties cannot modify at will.

In Roman law, it includes those things which are not susceptible of appropriation or ofprivate ownership and which are not transmissible.

Corpse- cannot be inherited, it is outside the commerce of man.As long as legal wife/husband has a right to the corpse.

Examples of things outside the commerce of man1. Services which imply an absolute submission by those who render them, sacrificing their

liberty, their independence or beliefs, or disregarding in any manner the equality anddignity of persons (e.g. perpetual servitude of slavery).

2. Personal rights (e.g. patria potestas or marital authority, the status and capacity ofpersons, and honorary titles and distinctions).

3. Public offices, inherent attributes of the public authority, and political rights of individuals(e.g. right of suffrage).

4. Property while they pertain to the public dominion (e.g. roads, plazas, squares and rivers).5. Sacred things, common things (e.g. air and the sea), and res nullius (as long as they have

not been appropriated).

Existence of objectThe object

must be in existence at the time of the perfection of the contract, or

has the possibility or potentiality of coming into existence at some future time

Future things future things can be object of contracts

future things are those which do not belong to the obligor at the time the contract is madebut may be made, raised, or acquired by the obligor after the perfection of the contract

future things includes not only material objects but also future rights

contracts involving future things may either beo conditional, or subject to the coming into existence of the thing, oro aleatory, or one of the parties bears the risk of the thing never coming into

existence

Future inheritance the law generally does not allow contracts on future inheritance

CONTRACTS ON FUTURE INHERITANCE CONTRACTS BY FIDEICOMMISSARY HEIR

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ON EVENTUAL RIGHTSIn order to be future inheritance, thesuccession must not have been openedat the time of the contract. Anagreement for the partition of theestate of a living person, made betweenthose who, in case of death, would be ina position to inherit from him, is void. Acontract renouncing the right to inheritfrom who is still alive, is also void.

The contract entered into by afideicommissary heir with respect to hiseventual rights would be valid, even ifexecuted while the fiduciary is stillalive, provided that the testator hasalready died. The rights of thefideicommissary heir comes from thetestator not from fiduciary.

Requisites for the prohibition1. that the succession has not yet been opened2. that the object of the contract forms part of the inheritance, and3. that the promissory has, with respect to the object, an expectancy of a right which is

purely hereditary in nature

Inheritance before partition not future inheritance: after the death of a person, theproperties and rights left by him by way of inheritance can be the subject-matter of a contractamong or by his heirs, even before a partition thereof has been made, because the rights of the

heirs are transmitted to them from the moment of the death of the decedent.

Not part of the inheritance When the object of the contract is not part of the inheritance, the prohibition does not

apply, even if delivery of such object is dependent upon the death of one of thecontracting parties (e.g. life insurance, reversion of donated property upon the death ofdonee)

If the right of the party over the thing is not by virtue of succession, but as a creditor, thecontract does not fall within the prohibition of Article 1348

Contrary to law or morals Contract is void if at the time it is entered into, the object is contrary to law or morals. The

law need not be penal in nature. It is enough that it be mandatory or prohibitive (A statuterequiring all debts in money to be paid in Philippine currency, a promissory note in dollarsis null and void, but does not defeat the creditors claim which shall be paid in pesos)

The determination of morality depends on our sense of our/the courts sense of decency,whether an act is in consonance with the respect due to society or is repugnant to it

Prestation of third party The prestation promised in a contract must be personal to the party. A person can obligate

only himself. He cannot obligate a 3rd person.

In a contract in which the prestation of a 3rd person is promised, the 3rd person is notbound, only the promissory is bound by the contract to use all means so that the 3rd

person may perform the prestation.

Article 108, RPC

The action to demand restoration, reparation, and indemnification likewise descends to the heirsof the person injured.

REYES VS. CA JULY 31, 1954Facts: decedent Benedicto de los Reyes, before his death, sold properties to one of the heirs ofthe executor. The heirs of the former claimed that the said properties should be part of theinheritance. Trial Court declared the subject properties having been sold before the death was nolonger part of the inheritance.

Issue: whether the properties sold are part of the inheritance? (Void contract)

Held: yes, the properties are part of the inheritance, according to the Civil Code, even theseproperties sold by the decedent may still be the object of succession and would be part of theestate and as much, the heirs may still be entitled to the subject properties. Such case may beconsidered as a circumvention of the law as the forced heirs may be deprived of their rights totheir legitime.

The appealed decision is reversed and the deed of sale was annulled and the parcel of landinvolved mere declared as pertaining to the estate of the decedent Benedicto de los Reyes.

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(If the contract is void, the property still forms part of the inheritance in order not to prejudicethe heir)

LEON GUINTO VS SANTIAGO MEDINA OCTOBER 7, 1953Facts: on October 3, 1941 Leon Guinto filed an action for forcible entry against Santiago Medina.Guinto alleged that he has been in possession of the said land since 1934, and that on 1941 bymeans of force and intimidation. Medina deprived him of his possession. Trial Court rendereddecision in favor of Guinto. While the case was on its original appeal Santiago died.

Issue: whether the liability of heirs may exceed the amount of inheritance?

Held: no, the heirs of the original defendants in this case has been merely substituted in hisplace upon his death, their liability for damages (money debt) is only to the extent of the valueof the property that they might have received if any from him.

D. Opening of Succession

Article 777, NCC

Transmission of Successional Rights

the language of the article is criticized by some commentators. Inasmuch as the death of aperson merely consolidates and renders immutable, in certain sense, rights which up tothat moment were nothing but mere expectancy. For before the death of the testator, thelaw may change, the will of the testator may vary, and even circumstances may bemodified to such an extent that he who expected to receive property may be deprived ofit. When death supervenes, however, the will of the testator becomes immutable. The lawas to the succession can no longer be changed, disinheritance cannot be effected, and therights to the succession acquire a character of marked permanence.

What the article really means is that the succession is opened by the death of the personfrom whom the inheritance comes. Therefore, it should be understood as the rights to thesuccession of a person are transmitted from the moment of his death, and by virtue ofprior manifestations of his will or of cause predetermined by law.

Death the determining point The moment of death is the determining point when the heirs acquire a definite right to

the inheritance, whether such right be pure or conditional.

The right of the heirs to the property of the deceased vests in them even before judicialdeclaration of their being heirs in the testate or intestate proceedings.

It is immaterial whether a short or long period of time elapses between the death of thepredecessor and the entry in the possession of the properties of the inheritance, becausethe right is always deemed to retroact to the moment of death.

Illustrations The right of the state to collect the inheritance tax accrues at the moment of death,

notwithstanding the postponement of the actual possession and enjoyment of the estateby the heir, and the tax is based on the value of the property at that time, regardless ofany subsequent appreciation or depreciation.

A bequest of land to the nearest male relative of the testator who would study for thepriesthood means the grantors nearest male relative at the time of his death and not anyindefinite time thereafter.

Possession of hereditary estate To the heir passes not only the right of ownership, but also the right of possession, as of

the moment of death of the predecessor. The possession of the hereditary property isdeemed transmitted to the heir without interruption and from the moment of the death ofthe decedent in case the inheritance is accepted.

While the hereditary estate is under administration, the heirs cannot compel theadministrator to deliver to them the property inherited.

Elements for transmission1. The express will of the testator, within the limits prescribed by the law, calling certain

persons to succeed him, or on the absence of a will, the provisions of the law prescribingthe presumed will of the document.

2. Death of the person whose succession is in question: A person is not made to succeed bythe mere fact of death of the predecessor for such will deny him the right to accept orrepudiate the inheritance.

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3. The acceptance of the inheritance by the person called to the succession.

Presumption of Death Death is not limited to natural or physical demise, it includes presumed death occasioned

by prolonged legal absence.

Under Article 390o After the absence of 10 years, a person shall be presumed to be dead for the

purpose of opening his succession, but if he disappeared after the age of 75, an

absence of 5 years will be sufficient in order that his succession may be opened.o The death is considered to have taken place on the last day of the period of

absence required by law. Under Article 391

o The disappearance of the persons enumerated therein is under circumstanceswhich give rise to the conviction or belief that they are victims of some catastropheor fatal event.

o The presumptive date is fixed on the very day of the occurrence of the event whichmay have occasioned death.

Article 2263, NCC

Moment of Death The decisive fact which gives origin to the right of heirs, devisees and legatees is the

death of the decedent. The provisions of the new Code, relaxing the rigidity of the rules of the old Code regarding

proof or recognition of natural children, were held inapplicable to one claiming recognitionand a share in the state of the alleged natural father who died before the new Code wantinto effect.

Article 2253, NCC

New rights created The article gives a retroactive effect to newly created rights, provided they do not

prejudice or impair any vested or acquired right.

Successional rights granted in favor of illegitimate children cannot be given retroactiveeffect and be made to apply to the estate of the deceased who died before the effectivityof the new Civil Code, for the same would have the effect of impairing the vested rights ofanother who is deemed to have become owner of property of the deceased upon thelatters death during the regime of the old Civil Code.

Article 533, NCC

Article 1347, NCC

Article 1461, NCC

Things with potential existence A valid sale may be made of a thing, which though not et actually in existence, is

reasonably certain to come into existence as the natural increment or usual incident ofsomething already in existence, and then belonging to the vendor, and the title will vest inthe buyer the moment the thing comes into existence.

A man may sell property of which he is potentially and not actually possessed.

One who sells something he does not yet own is bound by the sale when he acquires thething later.

Emptio rei speratae vs Emptio spei

EMPTIO REI SPERATAE(purchase of an expected thing)

EMPTIO SPEI(purchase of a hope or expectancy)

If the parties make the contractdepend upon the existence of thething, so that if the thing does notcome into existence the contract isconsidered as not made and there isno obligation to pay the prize. Suchcontract is valid under the 2nd

paragraph of the article

If the parties intend the contract toexist at all events so that the buyerwill have to pay the price even if thething does not actually come into theexistence, the contract is aleatory,and the price should be paid even ifthe thing does not come intoexistence. Under the last paragraph

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of the article, such contract is void.

Illustrations An agreement for the sale of property yet to be adjudicated by the court is valid and

binding. A sale of property to which the vendors did not have any title yet at the time of the

execution of the deed of sale.

Article 130, NCCArticle replaced by Article 84 of the Family Code

Article 132, NCC

Article 390, NCC

Presumption of Death; Judicial declaration not necessary The presumption of death is created by law, and arises without any necessity of a judicial

declaration. The presumption can be availed of in any action or proceedings; but there can be no

independent proceeding for the express purpose of securing a judicial declaration that a

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