Part 1 Flashcards

Question

In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. T or F.

Answer 1

True. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. 1025

Answer 2

Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.

Answer 3

True. 1024

Answer 4

1. The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; 2. The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; 3. A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; 4. Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; 5. Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; 6. Individuals, associations and corporations not permitted by law to inherit. Pars. 1-5 apply only to TESTAMENTARY Succession. They have no application to the legitime or to intestacy. Thus, a person may be disqualified to succeed by will under these paragraphs but will still be entitled to a legitime or to an intestate portion. Par6 is misplaced because it provides for TOTAL disqualification. It should be made a separate article. Rationale of Pars. 1-5 – the law, in imposing a disqualification, seeks to prevent any possible abuse of the moral or spiritual ascendancy for purposes of testamentary benefit. This disqualification is peremptory. No actual duress or influence need be shown, these are conclusively presumed. Proof of absence of duress or influence is irrelevant and will not remove the disqualification.

Answer 5

The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. Article 739. The following donations shall be void: 1. Those made between persons who were guilty of adultery or concubinage at the time of the donation; 2. Those made between persons found guilty of the same criminal offense, in consideration thereof; 3. Those made to a public officer or his wife, descendants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. In the first, previous criminal conviction is not necessary, while in the second, it is indispensable. Purpose is to forestall circumvention of the prohibition on donation by making them in the GUISE of testamentary disposition.

Answer 6

Ok. True even the if the disqualified heir acted in bad faith. But Alienation before the death of testator is VOID, even the third person is good faith. The heir has absolutely no right with respect to the property and his transferee can acquire no greater right than he has. 1036 Good Faith of Transferee as Determining Factor of Validity - The validity of the alienation is determined by the good faith or bad faith of the transferee, not of the transferor [the excluded heir] - For the transferee to be in good faith, he must have acquired the thing for value and without knowledge of the defect of the transferor’s title. - Thus, a donee cannot claim the benefit of this provision, since he did not acquire for value. - Note that in cases of valid alienations by the disqualified heir, the rightful heirs are not without a remedy: they may go after the disqualified heir for damages.

Answer 7

Alienation is an act whereby one man transfers the property and possession of lands, tenements, or other things, to another.

Answer 8

The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. 1037 Demand Reimbursement - necessary expenses Enforce credit is not part of the inheritance, and has nothing to do with heir being unworthy to succeed. The right of reimbursement granted by this article to the excluded heir is irrespective of his bad faith because the expenses referred to in this article are necessary expenses which have to be reimbursed even to a possessor in bad faith.

Answer 9

Ok. 1038 Possessor in bad faith means he knows that he is incapacitated. He must return the property, fruits and rents. Immaterial if it is good faith, still considered possession in bad faith. The disqualified heir, referred to in this article, who took possession of the hereditary property, is a possessor in bad faith, because he took possession “disregarding the provision stated in the preceding articles.” Hence, the law applies to him the rules on possession in bad faith: 1. The obligation to return, with accessions 2. Liability for fruits which were received and could have been received. These are the same rules laid down in Art549. Period for action to recover – Under Art 1040, 5 years.

Answer 10

The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. 1040 5 years prescriptive period – applies both to the declaration of incapacity of the heir and the recovery of the inheritance or portion thereof wrongfully possessed by the disqualified heir. In effect, this is a special prescriptive period for this action. It is an exception to the prescriptive periods for recovery of movables [8years] and of immovables [30years] laid down respectively in Articles 1140 and 1141.

Answer 11

Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (916) A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the 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. (918)

Answer 12

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 ascendants; 2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; 3. 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 made; 5. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; 6. Maltreatment of the testator by word or deed, by the child or descendant; 7. When a child or descendant leads a dishonorable or disgraceful life; 8. Conviction of a crime which carries with it the penalty of civil interdiction.

Answer 13

1. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; 2. When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; 3. When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; 4. When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; 5. When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; 6. The loss of parental authority for causes specified in this Code; 7. The refusal to support the children or descendants without justifiable cause; 8. An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.

Answer 14

1. When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; 2. When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; 3. When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; 4. When the spouse has given cause for legal separation; 5. When the spouse has given grounds for the loss of parental authority; 6. Unjustifiable refusal to support the children or the other spouse.

Answer 15

the mutual restoration of feelings to the status quo It is a bilateral act. The offended party must be able to forgive and the offender must be able to accept the forgiveness. There is no reconciliation if it is merely a general pardon wherein the testator forgives all who have offended him because such is a unilateral act of the testator. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made.

Answer 16

1. Compulsory or forced heirs - persons who are not deprived of their inheritance unless there are causes to disinherit them and the causes are provided by law 2. Voluntary, testamentary or testate heirs - heirs who will inherit because of the will of the decedent; if real personal/real property by device/legacy in the testator will insofar as the free portion is concerned 3. Legal/Intestate - if they succeed to the inheritance in the absence of a valid will Heirs - are instituted to the whole or to an aliquot portion thereof (portion of the inheritance); Succeed to the remainder of the state after all debt, devisee or legacies have been paid. Devise/Legatee - is given individualized items of the property. Heirs succeed the general right while devise succeed by special or particular title. Testamentary - relative or not Intestate - he must be relative Devisee - person to whom gifts of specific/determinate real property are given by virtue of will Legatee - property given is personal PERO SA SYLLABUS: 1) Compulsory 2) Voluntary 3) Legatees 4) Devisees

Answer 17

that portion of the property, rights and obligations of the decedent which you cannot just dispose of because the law reserved it for the compulsory heirs

Answer 18

False. When a person dies without a will, then, the compulsory heirs succeed by operation of law. If there is a will but the will is not valid, then, the compulsory heirs succeed by operation of law since the will is disregarded.

Answer 19

Legatee succeeds to personal properties. Devisee succeeds to real properties or immovable properties of the decedent.

Answer 20

(1) H: Succeed by general right or universal title to all or an aliquot part of the estate L&D: Succeed by special or particular title (individual items of property) (2) H: Heirs exist both in testamentary succession and intestate succession L&D: Legatees and devisees exist only in testamentary succession (3) H: The heir, if compulsory, succeeds to the inheritance regardless of the will of the decedent L&D: Legatees and devisees succeed only by testator’s will (4) H: Quantity cannot be determined until after liquidation of properties of the estate L&D: Quantity can easily be determined (5) H: Heirs represent the juridical personality of the deceased, acquiring his property, rights and obligations L&D: Legatees and devisees do not represent the juridical personality of the deceased because it acquires only properties (6) H: Heirs succeed to the remainder of the estate after all the debts, devisees and legatees have been paid L&D: Legatees and devisees succeed only to the determinate thing or amount given

Answer 21

1. When there is preterition, the instituted voluntary heirs do not get anything. The legatees/devisees retain the properties given to them as long as the legitime is not impaired. 2. When there is invalid disinheritance, the instituted voluntary heir gets nothing while the one who received properties by way of legacy or devise retains the property given to them as long as the legitimes of the compulsory heirs are not impaired.

Answer 22

1. The disinheritance must be made in valid will - can also be effected by virtue of a codicil - can also be made in a separate will - can also be made in Incorporation By Reference 2. The disinheritance must be made expressly, not impliedly 3. There must be a legal cause for the disinheritance 4. The disinheritance must be made for a true cause 5. The disinheritance must be for and existing cause - a conditional disinheritance is not allowed: “I will disinherit my son if he will kill me in the future” - but a conditional revocation of disinheritance is allowed: “My son attempted for my life. I will disinherit him. But if he will ask for my forgiveness, I will revoke the disinheritance” 6. The disinheritance must be total or complete 7. The cause must be stated in the will itself 8. The heir disinherited must be clearly identified, so that there will be no doubt as to who is really being disinherited 9. The will in which the disinheritance is stated must not have been revoked, at least in so far as the disinheritance is concerned

Answer 23

A petition for legal separation may be filed on any of the following grounds: 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; 4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned 5. Drug addiction or habitual alcoholism of the respondent; 6. Lesbianism or homosexuality of the respondent; 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; 8. Sexual infidelity or perversion; 9. Attempt by the respondent against the life of the petitioner; or 10. Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article the term "child" shall include a child by nature or by adoption. Note that even if there is merely an attempt against the life of the other spouse, it can be a ground for disinheritance because it is a ground for legal separation. In this ground, there is no conviction, but mere attempt. But under Article 921, paragraph 1, take note that what it provides is conviction: “When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants." If one of the spouses attempt against the life of a common child or descendant, there has to be conviction in order that it may constitute a ground for disinheritance because it is not a ground for legal separation. If there already has been a decree of legal separation, there is no more need to disinherit the offending spouse because by operation of law, the inheritance given to the other spouse is revoked and he or she is also disqualified from inheriting from the innocent spouse.

Answer 24

Not really. When the spouse has given cause for legal separation--In this case, there is yet no decree of legal separation but only the occurrence of the cause for legal separation. You do not have to secure a decree of legal separation first before you can disinherit your spouse who has given ground

Answer 25

1. There is subsequent reconciliation (so the disinheritance shall be ineffective) 2. By making the disinherited heir an instituted heir 3. By the revocation of a will containing disinheritance 4. By the disallowance of a will containing the disinheritance

Answer 26

blood (consanguinity) or marriage (affinity) tie uniting a person to another person

Answer 27

his parents and relatives by consanguinity and not by adoption, shall be his legal heirs

Answer 28

The adopted child shall become the legal heir of his adoptive parents and shall also remain the legal heir of his natural parents

Answer 29

Article 992 is the Principle of Absolute Separation with the legitimate family and the illegitimate family. There is Reciprocal prohibition. This is prohibition is also called the IRON-CLAD BARRIER. Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

Answer 30

1. Legitimate children and other legitimate descendants 2. Illegitimate children and other descendants 3. Illegitimate parents; ( NB: An illegitimate child has no legitimate ascendants) 4. Surviving spouse 5. Illegitimate brothers and sisters subject to article 992; 6. Nephews & nieces subject to rule in article 992 (because nephews & nieces who are legitimate cannot inherit from the illegitimate child.) 7. Other collateral relatives up to the 5th civil degree of consanguinity 8. The State

Answer 31

1. Legitimate children and their legitimate descendants 2. Legitimate parents and other legitimate ascendants 3. Illegitimate children and their descendants 4. Surviving spouse, without prejudice to the rights of brothers & sisters, nephews & nieces should there be any 5. Brothers & sisters subject to Article 992. (Illegitimate brothers & sisters cannot inherit from him) 6. Nephews & nieces subject to Article 992; 7. Collateral relatives up to the 5th degree subject to Article 992 8. The State.

Answer 32

brothers, sisters, nephews and nieces, and the uncles and aunts and cousins

Answer 33

happens when a direct line or a compulsory heir is omitted form the will The effect is the will cannot be given effect. So, there shall be intestacy wherein the will is disregarded and as if the person died without a will.

Answer 34

1. Legal capacity of the contracting parties; 2. Their consent, freely given; 3. Authority of the person performing the marriage; and 4. A marriage license, except in a marriage of exceptional character

Answer 35

(1) Those contracted under the ages of sixteen and fourteen years by the male and female respectively, even with the consent of the parents; (2) Those solemnized by any person not legally authorized to perform marriages; (3) Those solemnized without a marriage license, save marriages of exceptional character; (4) Bigamous or polygamous marriages not falling under article 83, number 2; (5) Incestuous marriages mentioned in article 81; (6) Those where one or both contracting parties have been found guilty of the killing of the spouse of either of them; (7) Those between stepbrothers and stepsisters and other marriages specified in article 82: (a) Between stepfathers and stepdaughters, and stepmothers and stepsons; (b) Between the adopting father or mother and the adopted, between the latter and the surviving spouse of the former, and between the former and the surviving spouse of the latter; (c) Between the legitimate children of the adopter and the adopted.

Answer 36

(1) Between ascendants and descendants of any degree; (2) Between brothers and sisters, whether of the full or half blood; (3) Between collateral relatives by blood within the fourth civil degree.

Answer 37

(1) The first marriage was annulled or dissolved; or (2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.

Answer 38

(1) That the party in whose behalf it is sought to have the marriage annulled was between the ages of sixteen and twenty years, if male, or between the ages of fourteen and eighteen years, if female, and the marriage was solemnized without the consent of the parent, guardian or person having authority over the party, unless after attaining the ages of twenty or eighteen years, as the case may be, such party freely cohabited with the other and both lived together as husband and wife; (2) In a subsequent marriage under article 83, number 2, that the former husband or wife believed to be dead was in fact living and the marriage with such former husband or wife was then in force; (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife; (4) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be; (a) Misrepresentation as to the identity of one of the contracting parties; (b) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more; (c) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband. No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (5) That the consent of either party was obtained by force or intimidation, unless the violence or threat having disappeared, such party afterwards freely cohabited with the other as her husband or his wife, as the case may be; (6) That either party was, at the time of marriage, physically incapable of entering into the married state, and such incapacity continues, and appears to be incurable.

Answer 39

In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases of: 2,3,5 of 1032 a. any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; b. any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; c. any person convicted of adultery or concubinage with the spouse of the testator; it shall be necessary to wait until final judgment is rendered for 4 of 1032 Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered.

Answer 40

Capacity to succeed is governed by the law of the nation of the decedent.

Answer 41

Generally, yes. There is an exception. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

Answer 42

True. The provisions relating to incapacity by will are equally applicable to intestate succession.

Answer 43

No. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children.

Answer 44

The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. 917

Answer 45

False. Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified.

Answer 46

Article 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the 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.

Answer 47

True. Article 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together it its accessions. He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence.

Answer 48

Article 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. Article 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n)

Answer 49

the process or act, thru a testamentary disposition of depriving in a will any compulsory heir of his legitime for true and lawful causes

Answer 50

1. Disinheritance (Article 915) 2. Repudiation of the inheritance - the act of the heir himself 3. Incapacity by reason of unworthiness 4. Predecease - the actual or presumptive death of the heir 5. Loss of the estate 6. When the death or charges are equal to or more than the value of the estate

Answer 51

the heir in question gets his legitime As to whether he will also get any part of the intestate portion or not, this depends on whether the testator gave away the free portion through testamentary dispositions. If he did, these dispositions are VALID and the compulsory heir improperly disinherited gets only his legitime. If the testator did not, the compulsory heir will be entitled to his corresponding share of the free portion as well.

Answer 52

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 insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

Answer 53

1. When it does not specify the cause 2. When it specifies a cause the truth of which, if contradicted, is not proved 3. When it specifies a cause which is not one of those set forth in the Code If hindi din nacomply yung essential requisites It is believed that this Article also governs the effect of that kind of disinheritance where there is a subsequent reconciliation, and where therefore there is also an ineffective disinheritance.

Answer 54

* It shall annul the institution of the heirs but in so far as only for the purpose of completing the legitime of the compulsory heir * But the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime

Answer 55

(1) P: The omission may be either intentional or unintentional as long as the deprivation is total VD: Disinheritance is always intentional because it has to be provided for in the will (2) P: With cause or without cause VD: The cause must be provided for by law. (Articles 920 & 921 NCC) (3) P: Annuls the institution VD: The disinherited heir inherits nothing from the legitime & the free portion (4) P: May exist with or without a will VD: There must always be a will (5) P: The institution is always void VD: The institution will be followed unless there is another cause for not following the institution which is not because of the disinheritance but for other causes.

Answer 56

During the lifetime of the testator, he can make donations and the donations will be collated later on. If during his lifetime, he gave all his properties to one of his children. So upon his death, there is nothing left. So upon his death, there is no will but still there is preterition because there is omission.

Answer 57

(1) P: The institution of heirs is completely annulled ID: The institution remains valid, but must be reduced insofar as the legitime has been impaired (2) P: If there is a devise or legacy, he will receive the devise or legacy as long as it is not inofficious ID: Devises, legacies or other testamentary dispositions shall be valid. Even if the person is just an instituted heir, he will still receive his share or inheritance (3) P:It is important to distinguish whether the person is an instituted heir or a devisee or legatee VD: Even if the person is just an instituted heir, as long as the institution does not prejudice the legitime of the invalidly disinherited heir, then, that heir shall receive the inheritance

Answer 58

It must be observed that because of the omission of C in X’s will, there is now a preterition of a compulsory heir in the direct line in the testator’s will. According to the Civil Code, such preterition shall have the effect of annulling the institution of heirs entirely, but legacies and devises shall be valid insofar as they are not inofficious. Since there is a legacy of P20,000 given to A we must therefore, determine whether it is inofficious or not. The legitime of A, B and C is 1/2 of the entire estate, or P120,000, or P40,000 each. The legitime of W is the same as that of each of the legitimate children, or P40,000 also. The disposable free portion is therefore, P80,000. It is clear, that the legacy of P20,000 given to A is not inofficious because it can easily be contained in said disposable free portion. Therefore, it is valid. Consequently, it must be paid to A. That leaves a balance of P220,000 in the estate. Since the institution of heirs has been entirely annulled because of the preterition of C, the rules of intestacy shall now be applied with respect to this balance. It shall be divided equally among W, A, B, and C. The distribution shall, therefore, be as follows: A .................................. P55,000, as legal heir 20,000, as legatee B .................................. 55,000, as legal heir C .................................. 55,000, as legal heir W .................................. 55,000, as legal heir P240,000

Answer 59

It must be observed that the disinheritance of C is defective because the testator did not state the cause or ground of disinheritance. Consequently, according to the Civil Code, such imperfect disinheritance shall annul the institution of heirs insofar as it prejudices the legitime of C, but legacies and devises shall be valid insofar as they are not inofficious. Hence, we must determine the legitime of the survivors and the disposable free portion. The legitime of A, B and C is 1/2 of the entire estate, or P120,000, or P40,000 each. The legitime of W is the same as that of each of the legitimate children, or P40,000 also. The disposable free portion is, therefore, P80,000. It is clear that the legacy of P20,000 given to A is not inofficious because it can easily be contained in said disposable free portion. Therefore, it is valid. Consequently it must be paid to A. That leaves a balance of P60,000 in the disposable free portion. This balance of P60,000 shall be given to W, A and B in accordance with the testator’s will. That means P20,000 for each of them in addition to their legitime of P40,000. The distribution shall, therefore, be as follows: A .......................... P40,000, as compulsory heir 20,000, as voluntary heir 20,000, as legatee B .......................... 40,000, as compulsory heir C .......................... 20,000, as voluntary heir W .......................... 40,000, as compulsory heir 20,000, voluntary heir P240,000

Answer 60

In the first place, since the only compulsory heirs surviving the testator are three legitimate children, B, C and D, therefore, 1/2 of the net remainder of the estate, or P30,000, is reserved as their legitime, while the other half, or P30,000, is free or disposable (Art. 888). In the second place, the disinheritance of D is imperfect because there is no specification of the cause; consequently, it shall result in the partial annulment of the institution of B and C as heirs insofar as D’s legitime of P10,000 is prejudiced (Art. 918). In the third 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 (Art. 918). Therefore, the estate shall be distributed as follows: B ............................... P10,000 as compulsory heir P10,000 as voluntary heir C .............................. P10,000 as compulsory heir P10,000 as voluntary heir D ............................... P10,000 as compulsory heir E ............................... P10,000 as legatee P60,000

Answer 61

The word accused here is used generically and will include: a. filing of a complaint before the prosecutor b. presenting incriminating evidence against the testator c. even suppressing exculpatory evidence d. testifying in a case against your parents or ascendants involving a crime which carries a penalty of 6 years or more (prision mayor) e. statements affirming the accusations made against the parents, ascendants

Answer 62

(1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and acknowledged natural children and the legitimate or illegitimate descendants of the latter; (4) Parents and natural children by legal fiction and the legitimate and illegitimate descendants of the latter; (5) Parents and illegitimate children who are not natural. Brothers and sisters owe their legitimate and natural brothers and sisters, although they are only of the half-blood, the necessaries for life, when by a physical or mental defect, or any other cause not imputable to the recipients, the latter cannot secure their subsistence. This assistance includes, in a proper case, expenses necessary for elementary education and for professional or vocational training.

Answer 63

It is necessary that the maltreatment must have been intentional or voluntary. Otherwise, if it was due to insanity, lack of discernment or tender years of the child or descendant, the maltreatment cannot be considered as a sufficient cause for disinheritance.

Answer 64

There must be habituality to the conduct to make it fall | under this paragraph.

Answer 65

Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. 774

Answer 66

False. It is only AFTER the debts are paid that the residue of the estate is distributed among the successors. When the debts, funeral charges and expenses of administration, the allowance to the widow and the inheritance tax have all been paid, that is the only time that the court shall assign the RESIDUE of the estate to persons entitled to it. The rule also provides that there shall be no distribution until the payment of the obligations enumerated above, have been made or provided for. However, if the distributees give a bond for the payment of the said obligations within such time and of such amount as fixed by the court, the distribution may be allowed.

Answer 67

False. The estate pays them and it is only what is left after the debts are paid [residue] that are transmitted to the heirs.

Answer 68

a. Payment of debts, expenses and taxes b. Hearing conducted by the court c. Court assigns the residue of the estate to the heirs

Answer 69

1. Donation Inter Vivos: given during the lifetime of grantee 2. Donation Mortis Causa: made effective from the moment of death of decedent

Answer 70

1. It conveys no title or ownership to the transferee before the death of the transferor; 2. Before his death, the transfer should be revocable by the transferor at will, but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed 3. The transfer should be void if the transferor should survive the transferee If these 3 characteristics are present, the document is not a deed of donation but rather, it is a will. It must comply with the formalities of a will.

Answer 71

The harmonious combination of two institutions —private ownership and the family. This is so because succession is, after all, but a mode of perpetuating the right to own private property. Consequently, whether we look at it from the viewpoint of private ownership or the viewpoint of the family, the basis or foundation of succession is the recognized necessity of perpetuating man’s patrimony beyond the limits of human existence. This necessity, in turn, is based on the necessity of giving greater stability to the family and to the social economy.

Answer 72

The rights to the succession are transmitted from the moment of the death of the decedent. 777 Rights to succession are vested from the moment of death, not upon the filing of petition for testate/ intestate proceedings, not upon the declaration of heirship or upon settlement of the estate.

Answer 73

1. Death 2. Will or Operation of law 3. Existence and capacity of the successor 4. Acceptance

Answer 74

the decedent’s death Uson v. Del Rosario.-- Upon the death of the husband before the NCC, the rights of the wife to the inheritance were vested. So the rights of the illegitimate children under the NCC to inherit can not prejudice the vested rights of the wife. We have to apply the OCC bec. at the time of his death, it is the OCC w/c governed the law on succession. For the determination of successional rights, the law at the point of death should be the one applied. Jimenez v. Fernandez.-- Carlos died in 1936, before the effectivity of the NCC. As such, his illegitimate child cannot inherit from him. As such, title to the land belongs to the cousin who inherited the land w/ Carlos.

Answer 75

an inchoate right or an expectancy

Answer 76

• Under ordinary circumstances, 10 years • After the age of 75, 5 years. • Under extraordinary circumstances, 4 years In this instance, the moment of death is reckoned from the moment of disappearance. ARTICLE 390 (New Civil Code). After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) ARTICLE 391 (New Civil Code). The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n) As a general rule, the time when the absentee died must be proved in accordance with the ordinary rules of evidence. If this is not possible, then he is deemed to have died at the time of the that expiration of the period designated by law. There is, however, an exception to this rule, and that is when the absentee disappeared under any one of the extraordinary circumstances enumerated in Art. 391 of the Code. Because the absentee disappeared under danger of death, in such case, he is deemed to have died at or about the time when he disappeared.

Answer 77

True. This is so because his right with respect thereto is already in the nature of a vested right in accordance with the principle declared in Art. 777 of the Civil Code, to the effect that the rights to the succession are transmitted at the moment of the death of the decedent. Hence, he may sell his undivided share in the inheritance or even donate it. Conversely, before the death of the decedent, no heir may enter into a contract with respect to his future share in the inheritance. This is so because, before the death of the decedent, the heirs have only a mere hope or expectancy, absolutely inchoate in character, to their share in the inheritance.

Answer 78

True. Lorenzo v. Posadas

Answer 79

True. It is clear that since the moment of the death of the decedent is the determining factor when the heirs acquire a definite right to the inheritance, whether such right is pure or contingent, it is immaterial whether a short or long period of time lapses between the moment of the death of the decedent and the heir’s entry into the possession of his inheritance. Once the heir accepts his inheritance and takes possession thereof, his right thereto is deemed to retroact to the moment of the decedent’s death. Consequently, the fact that the hereditary estate is placed under administration will not affect the application of the rule stated in Art. 777. As a matter of fact, it has even been held that the fact that the law provides for the appointment of a legal administrator for the liquidation of the decedent’s estate and the partition of his haeriditas jacens among his heirs, does not deprive such heirs of the right to intervene in the administration of the estate for the protection of their interests.

Answer 80

True. While it is very true that they acquire ownership thereof from the moment of the death of their predecessor, yet upon the appointment of a judicial administrator, the latter, by virtue of his appointment, acquires a right to the possession of the estate, subject to the orders of the court, unless he consents to the heirs continuing in possession thereof.

Answer 81

Art. 781 Ownership, accretion vs. succession

Answer 82

The view maintained by American authorities is that it cannot be considered as a part of the inheritance inasmuch as it is not property. It must be noted, however, that under Rep. Act No. 349, as amended by Rep. Act No. 1056, a person may validly grant to a licensed physician, surgeon, known scientist, or any medical or scientific institution, authority to detach at any time after the grantor’s death, any organ of his body, and to utilize the same for medical, surgical or scientific purposes. The grant or authorization must: (1) be in writing; (2) specify the person to whom or the institution to which the grant is given; (3) specify the organ to be detached; (4) specify the use or uses of the organ to be employed; and (5) be signed by the grantor and two disinterested witnesses. If all of these requirements have been complied with, after the death of the grantor, the grant or authorization shall be binding upon the executor or administrator, successors of the deceased and members of his family.

Answer 83

Rights relative to persons and family or purely personal rights are, by their very nature, intransmissible in character. Consequently, they are not included in the inheritance. Examples: - right to parental authority - marital rights - right of a Chinese merchant - right to vote

Answer 84

Rights relative to property or patrimonial rights are generally transmissible in character. Consequently, they may be included in the inheritance. Excepted from this rule are those which are expressly made intransmissible by operation of law such as personal and legal usufructs and personal easements. Examples: action for forcible entry/unlawful detainer action to recover property EXCEPTIONS: Extinguished by death as provided by law or agreement by the parties (ex. agency, commodatum, contract of lease)

Answer 85

Rights arising from obligations or rights of obligations, whether contractual or otherwise, are generally transmissible in character. Consequently, they may be included in the inheritance. Excepted from this rule are those arising from contracts which by their very nature are intransmissible, those which are expressly made intransmissible by agreement of the parties, and those which are expressly made intransmissible by operation of law. GENERAL RULE: Transmissible EXCEPTIONS: 1. Purely personal 2. Non-transferable by law 3. Non-transferable by contract or agreement between the parties. Examples of obligations extinguished by death: 1. Obligation to pay taxes 2. Criminal liability 3. Right to give support Debts (2 views) 1. Not transmissible since it is actually the estate of the deceased which pays the debts 2. Transmissible because the shares of the heirs are reduced by the payment of the debts (preferred view)

Answer 86

1. rights and obligations between husband and wife 2. property relations between husband and wife 3. action for legal separation 4. action to compel acknowledgment of a natural child 5. action to obtain judicial declaration of illegitimate filiation of an illegitimate child who is not natural 6. parental authority or patria potestas 7. rights of a guardian 8. right to receive and the obligation to give support 9. right to hold a public office as well as the right to exercise a profession or vocation 10. right of usufruct 11. right of personal easement 12. rights and obligations arising from a contract of partnership 13. rights and obligations arising from a contract of agency 14. criminal responsibility Thus, where a natural child dies survived by his mother, it has been held that the right of action for the acknowledgment of the child is, in principle and without exception, extinguished by his death, and cannot be transmitted as a portion of the inheritance of such child. Similarly, where a merchant dies leaving a mercantile business to his widow and children, it has been held that such fact alone does not make such widow and children merchants.

Answer 87

C is not entitled to the remedy. While it is true that the inheritance of a person includes not only his property but also his rights and obligations which are existing at the time of his death, yet his monetary obligations are excluded by operation of law. This is so because under our system of procedure for the settlement of the estate of deceased persons, such monetary obligations of the decedent can only be charged against his estate and not against his heirs.

Answer 88

True. This is so because the creditor is not a creditor of the decedent but of the heir, and, therefore, is entitled to proceed against the participation of such heir only after the settlement or liquidation of the estate of the decedent.

Answer 89

Actual - Actual | Constructive - Presumptive

Answer 90

YES under Article 1347 par2: “No contract may be entered into upon future inheritance except in cases expressly provided by law."

Answer 91

Art. 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession. (1331a) The donation is in reality a disposition mortis causa a case of contractual donation expressly authorized by law as an exception to the prohibition in Article 1347. such ANTE NUPTIAL COTRACT is not expressly requires by Art 130 to comply with the formalities of a will. But this is more of a contractual succession rather than a testamentary succession because it shall be executed in accordance with the form prescribed for donations by reason of marriage.

Answer 92

No, such a compromise would still not be valid, not because of Art. 905 but because “no contract (and a compromise is indeed a contract) may be entered into upon future inheritance except in cases expressly authorized by law.” (Art. 1347, par. a).

Answer 93

ART. 775. In this Title, “decedent” is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. Decedent – general term, person whose property is transmitted Testator – specific term, person who transmits his property via a will. It is unfortunate that the Code does not use the term “Intestate” to refer to a decedent who died without a will, This would have prevented the ambiguity now inherent in the term “decedent”

Answer 94

False. Every testator is a decedent but not all decedents are testators. Under the American system, a decedent who did not leave a will is called "intestate." But this is not true in the Phils.

Answer 95

True. 796 General rule: All persons have the testamentary capacity to make a will. Exception: Incapacity, when expressly prohibited by law: (1) disqualified by reason of age (Art. 797); (2) disqualified by reason of mental incompetence. (Art. 798.) The term refers only to natural person and not include the juridical person like corporations, it is evident from the requirement of sound mind.

Answer 96

(1) He must be at least eighteen years of age; and (2) He must be of a sound mind Testamentary capacity must exist at the time of the execution of the will.

Answer 97

True. This is because civil interdiction prohibits a disposition of property inter vivos, not mortis causa. Since the law does not disqualify them, it is believed that spendthrifts or prodigals, even if under guardianship, can make a will provided they are at least 18 years old and are of sound mind.

Answer 98

Capacity to make a will is called “testamentifaccion active,’’ whereas capacity to inherit or to receive by will is “testamentifaccion passive.’’

Answer 99

T or F. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. It means realization of or knowing: a. The nature of his estate: Know what you own. This does not mean that the testator has to know the description of his property in detail. It is enough that he has more or less a fairly accurate idea what his properties are. This depends upon the circumstances. Say Rockefeller. The idea is less if you owned more. the more a person owns, the more he is apt to forget what he has in detail. If you think you own Ayala bridge and gives it as a devise, something is wrong w/ you. b. Proper objects of his bounty: Know his immediate relatives. Experience of mankind is that you give to people who are attached to you by blood. Immediate relatives referred to are spouses, parents, children, brothers, sisters, but not first cousins. First cousins usually are not known especially if they live abroad. The nearer the relation, the more you should know. The farther, the less the law expects of you. If the testator can not recognize his immediate relatives, then there is something wrong. c. Character of the testamentary act: Know the essence of making a will. Know that you are: (1) making a document that disposes (freely, gratuitously) of your property; (2) to take effect upon your death.

Answer 100

True. Even if you are insane as to other things, as long as you know these three (3) things, you have testamentary capacity. Insanity is relative. It is different in marriage and in contracts. But in wills, not knowing one or more of the 3 mentioned above, you are considered insane.

Answer 101

Yes, for the fact of non-submission to probate during his lifetime of the second will does not indicate any defect in the requisite testamentary capacity. Besides, a will is revocable at any time by the testator while still alive.

Answer 102

(a) religious delusion resulting in the unsettling of judgment (b) blind extraordinary belief in spirits while executing a will (c) monomania (insanity on a single subject) — if this happens to be on the subject of wills or succession (d) insane delusions — belief in things which no rational mind would believe to exist (e) drunkenness if this results in failure to know the nature of the testamentary act (f) idiocy — congenital intellectual deficiency (g) a comatose stage, resulting from hypertension and cerebral thrombosis, and preventing the testator from talking or understanding (h) state of delirium

Answer 103

If the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.

Answer 104

Exception: Insanity is rebuttable presumed when: 1. Art. 800 par. 2.-- One month or less before the making of the will, the testator was publicly known to be insane. E.g., A, one month before making of the will was running in the Plaza Miranda naked and shouting "Ibagsak!" This is what you mean by publicly known. 2. If there had been a judicial declaration of insanity and before such order has been revoked. (Torres v. Lopez, 48 P 772.) In these 2 cases, it is the proponent's duty to offer evidence to the contrary, i.e., prove that the making of the said will was made by the testator during a lucid interval. >> guardianship or committed (3) When the testator has Insanity of a general or permanent nature shown to have existed at one time.

Answer 105

1. A guardian appointed by reason of insanity. (Rule 93, ROC.) 2. If the insane was hospitalized by order of the court In either of these cases, there is a presumption of insanity. But once the order is lifted, the presumption ceases. Effect: 1. Rebuttable presumption of sanity is nullified or swept away. 2. There is a rebuttable presumption of unsoundness of mind.

Answer 106

1. You may use the testimony of the notary public 2. The testimony of the attesting witnesses 3. The testimony of the attending physician 4. The testimony of other witnesses

Answer 107

That period in which an insane person is so far free from his disease, that the ordinary legal consequences of insanity do not apply to acts done therein. More precisely, it refers to that period in which an insane person has so far recovered from his insanity so that he is in a position to be able at the time of making his will to know the nature of the state to be disposed of, the proper objects of his bounty, and the character of the testamentary act. In American law, the rule is that, as distinguished from temporary mental weakness, insanity of a confirmed or permanent nature, shown to have afflicted the testator at one time, is presumed to have continued to the subsequent time of the execution of the will, in the absence of evidence to the contrary, and that once it is established that the testator had been afflicted with insanity of such type, the burden rests upon the proponent of the will to produce evidence that the incapacity did not exist when the will was executed, or to show that the will was made during a lucid interval. Under our law, the rule is that if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. Hence, if it cannot be established that the testator was publicly known to be insane within the required period of one month or less before the making of his will, the presumption of mental capacity stands, and as a consequence, there will be no need on the part of the proponents of the will to prove that the testator made it during a lucid interval.

Answer 108

Peculiar decay of the mental faculties whereby the person afflicted is reduced to second childhood

Answer 109

It depends. Provided he then comprehends the nature, extent, and disposition of his estate and his relation to those who have or might have a claim on his bounty; and clearly, a person addicted to the use of drugs or of liquor, if lucid and sober when a will is made, does not lack testamentary capacity merely by reason of the habit.

Answer 110

The attesting or subscribing witnesses’ testimony as to the mental condition of the testator should be given great weight, and should prevail over that given by a non-attending physician who merely speculates. However, the physician should be believed if he was constantly near the testator, and if he actually saw the latter on the date of execution.

Answer 111

Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. 801

Answer 112

No, because his becoming capacitated later on is not | important. What is important is that his mind was not sound at the time he executed the will.

Answer 113

True. 802 The Article is to be applied only if the married woman is at least 18 years old, and is of sound mind at the time of execution. Thus, if a 17-year-old wife makes a will, same will be null and void, even if the husband consents. This discussion is without prejudice to “contractual succession” in a marriage settlement between the future spouses.

Answer 114

True. If the spouse disposes of the entire community property, the disposition is only valid with respect to the portion pertaining to the share of the spouse who is the testator. The remaining portion becomes invalid. But if the spouse knows that he or she has no right to dispose of the share or his or her spouse but still he or she provides in the will that such portion or the entire portion be given to a certain person, in that case, you will learn later on that it is valid. What is to be done is for the estate to acquire the other portion.

Answer 115

(1) ordinary or notarial will w/c requires an attestation clause, an acknowledgement before a notary public; (2) holographic will w/c must be entirely written, dated and signed in the handwriting of the testator.

Answer 116

They are not allowed by the NCC. This kind of will is an oral will made by the testator in contemplation of death. This is allowed among Muslims only.

Answer 117

1. It must be in writing 2. Executed in the language or dialect known to the testator. It must be a language (a) spoken by a substantial number of persons; (b) must have been reduced to writing and (c) fairly substantive body of literature A dialect is a variation of tongue.

Answer 118

It depends. Ordinarily, the heir gets only half of the house, but if in the liquidation proceedings the house is awarded entirely to the wife’s estate (the husband receiving some other property, like cash), the heir gets the whole house.

Answer 119

* HEIR – one who succeeds to the WHOLE or an Aliquot part of the inheritance * DEVISEE / LEGATEE – those who succeed to definite, specific, and individual properties. An heir succeeds by universal title. Devisee or legatee succeeds by particular title.

Answer 120

The SC held that Victor is bound by the Contract of Lease with Option to Buy. Article 1311 of the NCC provides: Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of law. In this case, there is neither contractual stipulation nor legal provision making the rights and obligation under the contract intransmissible. More importantly, the nature of the rights and obligations therein are, by their nature, transmissible. Where the service or act is of such a character that it may be performed by another, or where the contract, by its terms, shows the performance by others was contemplated, death does not terminate the contract or excuse nonperformance. In this case, there is no personal act required from the late Encarnacion. Rather, the obligation of Encarnacion to deliver possession of the property may very well be performed by Victor. Also, the subject matter of the contract is a lease, a property right. The death of a party does not excuse nonperformance of a contract which involves a property right, and the rights and obligations thereunder pass to the personal representatives of the deceased. The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-in-interest except when the rights and obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of law.

Answer 121

A devisee, the prop. being a specific real prop.

Answer 122

Before, yes. The heir inherited even debts of the decedent, even if it exceed the value of the property. Devisees or legatees were liable for debts of the decedent only up to the extent of the value of the prop. Now, No. Except in one instance, in case of preterition in Art. 854. If read carefully, institution of heir is annulled while devise and legacy are not, so long as there is no impairment of the legitime.

Answer 123

True. And vice versa.

Answer 124

Transferees In legal succession, the transferees are called legal or intestate heirs.

Answer 125

If in a will, a compulsory heir is given more than his legitime, he assumes a dual status: (a) Insofar as his legitime is concerned, he is a compulsory heir. (b) Insofar as the excess is concerned, he is a voluntary heir. [This distinction is important because if a compulsory heir dies ahead of the testator, his legitime is inherited by his own child. On the other hand, the child of a voluntary heir who predeceases or dies ahead of the testator gets nothing from said testator. (Art. 856).]

Answer 126

The first presumes the existence of a contract or deed of sale between the parties. The second is, technically speaking, a mode of extinction of ownership where there is an abdication or intentional relinquishment of a known right with knowledge of its existence and intention to relinquish it, in favor of other persons who are co-heirs in the succession.

Answer 127

True. Thus, children, if all qualified, will exclude grandchildren and so on. The qualification to this rule is representation when proper.

Answer 128

Mere estrangement is not a ground for the disqualification of the surviving spouse as heir.

Answer 129

Oki. 902 and 992

Answer 130

Okii The illegitimate parents are secondary heirs of a lower category that legitimate parents, because the illegitimate parents are excluded by legitimate and illegitimate children [Art903] whereas legitimate parents are excluded only by legitimate children/ descendants.

Answer 131

Uncertain. Art189[3] of the FC provides that the adopted shall remain an intestate heir of his parents and other blood relatives. Thus, the adopted child was entitled to a legitime BOTH from his adopter and his biological parents. But now, the law is silent and it neither gives nor denies an adopted child the right to a legitime from his biological parents. Sec16 of the law provides that “all legal ties between the biological parents and the adoptee shall be severed” but that is unavailing to answer the question because sec16 only has to do with parental authority.

Answer 132

The SC denied her claim bec. the widow in the law refers to the widow of the deceased and not of a relative of the deceased.

Answer 133

1. A stranger to estate of parent-in law considered as third person. 2. Legitime in full ownership Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth 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 a 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. 3. When marriage is void, surviving spouse is entiled to a legitime, there should have been a valid marriage 4. Where marriage is Null and Void - no valid marriage 5. When marriage is Voidable - existing marriage which remains Valid until annulled by a competent court 6.When there is Legal Separation - It disqualifies the offending spouse from inheriting from the innocent spouse by Intestate Succession, will shall be revoked by operation of law. There must be a judicial decree to disqualify the surviving spouse.

Answer 134

a. The primary compulsory heirs the legitimate children, widow or widower, and illegitimate children. They inherit all at the same time. They concur with each other. b. The legitimate parents are secondary compulsory heirs. In the absence of legitimate children, it is when the ascendants or parents inherit. It is either the legitimate children or descendants, parents or ascendants. They will not concur. c. Illegitimate children concur with legitimate children. They concur with the parents or ascendants. They concur with the surviving spouse. Illegitimate children are concurring compulsory heirs.

Answer 135

Thus, if the testator is a legitimate person, his compulsory heirs under Art. 887 of the Civil Code are the following: (1) Legitimate children and descendants; (2) In default of the foregoing, legitimate parents and ascendants; (3) The widow or widower; (4) Acknowledged natural children and natural children by legal fiction; and (5) Acknowledged illegitimate children who are not natural. On the other hand, if the testator is an illegitimate person, his compulsory heirs are the following: (1) Legitimate children and descendants; (2) Acknowledged natural children and natural children by legal fiction; (3) Acknowledged illegitimate children who are not natural; (4) In default of all the foregoing, parents by nature; and (5) The widow or widower.

Answer 136

The following children are illegitimate under Art. 165 of the Family Code: (1) Children born of couples who are not legally married, or of common-law marriages; (2) Children born of bigamous or polygamous marriages; (3) Children born of adulterous relations between the parents; (4) Children born of couples below 18 years old, whether they are married (but which marriage is void) or not; (5) Children born of other void marriages under Art. 35 of the Family Code. This excludes marriages solemnized by any person not legally authorized to perform marriages but such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (6) Children born of incestuous marriages under Art. 37 of the Family Code; (7) Children born of marriages void for reasons of public policy under Art. 38 of the Family Code. However, children of marriages void under (i) Art. 36 of the Family Code (because either of the parties to the marriage was psychologically incapacitated to comply with the essential marital obligations of marriage); and (ii) Art. 53 of the Family Code (because either of the former spouses who marries again fails to comply with such requirements as recording in the appropriate civil registry and registry of property the judgment of annulment of marriage, the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitime), are legitimate.

Answer 137

Legitimate parents or ascendants are classified as secondary compulsory heirs because of the fact that under our law, they cannot inherit from their child or descendant if they concur with legitimate children or descendants of the latter. It must be noted, however, that while they can be excluded by the presence of legitimate children or descendants, they cannot be excluded by the presence of adopted children. This is so, because of the provision of No. 4 of Art 39 of the Child and Youth Welfare Code (P.D. No. 603), which has superseded Art. 343 of the New Civil Code, and which states that if the adopter is survived by legitimate parents or ascendants and by the adopted child, the latter shall not have more successional rights than an acknowledged natural child. Illegitimate parents are also classified as secondary, compulsory heirs because of the fact that under our law, they cannot inherit from their illegitimate child if they concur with children or descendants of the latter, whether legitimate or illegitimate. Thus, if the testator, who is an illegitimate child, is survived by his children and his illegitimate parents, the latter are excluded altogether from the succession by the presence of the former regardless of their legitimacy or illegitimacy. If the testator happens to be an adopted person, may the adopter also be classified as a secondary compulsory heir? So long as the adopted person is survived by his parents by nature, whether legitimate or illegitimate, the adopter cannot be classified as a secondary compulsory heir. There is, however, an instance where he may be classified as such. According to the last paragraph of No. 4 of Art. 39 of the Child and Youth Welfare Code (P.D. No. 603): “The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession.” Although the law uses the term “legal heir,” nevertheless, because of the qualifying phrase “whether testate or intestate” at the end of the provision, it is evident that it also refers to compulsory heirs. Under Art. 190 of the Family Code, when parents (legitimate or illegitimate), or the legitimate ascendants of the adopted concur with the adopters, they shall divide the entire estate, that is, one-half to be inherited by the parents or ascendants and the other half by the adopters.

Answer 138

1. Yes. Don’s testamentary disposition of his estate is in accordance with the law on succession. Don has no compulsory heirs not having ascendants, descendants nor a spouse (Art. 887, NCC). Brothers and sisters are not compulsory heirs. Thus, he can bequeath his entire estate to anyone who is not otherwise incapacitated to inherit from him. A common-law wife is not incapacitated under the law as Don is not married to anyone. 2. Jayson will still be entitled to the entire P12 Million as the father, brother and sister will be exluded by a legitimate son of the decedent (Art. 887, NCC). This follows the principle that the descendants exclude the ascendants from inheritance. (Suggested Answers to the 2006 Bar Examination Questions, PALS)

Answer 139

The husband is the father of the child, the latter being the former’s conclusively presumed legitimate child. (Art. 255, Civil Code). While the parents are separated, the separation came after, not before, the illicit carnal liaison. Besides, the fact that the child was born normal indicates that it had had an intra-uterine life of nine months, and cannot be the offspring of the extramarital intercourse seven (7) months before its birth.

Answer 140

Generally, she should not be allowed. Mere proof of filiation is not enough. What is important is recognition of that filiation. [NOTE: If the claimant was a minor at the time of the father’s death, she can ask that she be recognized if she has a ground to compel recognition. This move for compulsory recognition must be done within four years after attaining majority.]

Answer 141

Yes, but only if their father died AFTER the effectivity of the new Civil Code on Aug. 30, 1950.

Answer 142

Rule of Article 902 compared with Rule of Article 992 – In the case of descendants of legitimate children, the right of representation is given only to legitimate descendants, by virtue of Art992. The net effect of all this is that the right of representation given to descendants of illegitimate children is BROADER than the right of representation given to descendants of legitimate children. Thus, an illegitimate child of a predeceased legitimate child cannot inherit by representation [Art992], while an illegitimate child of an illegitimate child can [Art902]. A classic instance of unintended consequence.

Answer 143

If the illegitimate child died ahead of his parents and he also has his own children legitimate or illegitimate, all of these children will inherit by Right of Representation. They will get whatever rights their parents have. The right of an illegitimate child passes to his children whether legitimate or illegitimate. In the case of a legitimate child, his own illegitimate child cannot represent.

Answer 144

One-half (1/2) of the hereditary estate, while the other half is at the testator’s free disposal. This rule which is contained in Art. 901 of the Code must, however, be supplemented by the rule contained in the second paragraph of Art. 895 if some of the survivors are acknowledged natural or natural children by legal fiction, while others are acknowledged illegitimate children who are not natural. This rule, however, was repealed by the Family Code, more particularly by the second sentence of Art. 176 which states that the legitime of each illegitimate child shall consist of one —half of the legitime of a legitimate child. Since the various classifications of illegitimate children was eliminated such that they are now all simply classified as illegitimate children, their legitime shall be the same, that is, one-half of the legitime of a legitimate child.

Answer 145

Since the only surviving compulsory heirs are illegitimate children, their legitime shall consist of 1/2 of the estate of P36,000, or P18,000 (Art. 901, Civil Code). It must, however, be noted that A is an acknowledged natural child, while X is an acknowledged illegitimate child who is not natural. Hence, as far as the division of the legitime of P18,000 is concerned, the rule stated in the second paragraph of Art. 895 of the Code shall apply. In other words, the legitime of an acknowledged illegitimate who is not natural shall be 4/ 5 of that of an acknowledged natural child. It is, therefore, evident that the proportion between the share of an acknowledged natural child and that of an acknowledged illegitimate who is not natural is five to four (5:4). This merely means that for every five shares or parts that each acknowledged natural child shall receive, an acknowledged illegitimate who is not natural shall be entitled to four parts. Applying this proportion to the problem, A shall be entitled to 5/9 of P18,000, or P10,000, while X shall be entitled to 4/9 of P18,000, or P8,000. Consequently, the entire estate shall be divided as follows: Legitime of A ........................................... P10,000 Legitime of X ........................................... 8,000 For free disposal ...................................... 18,000 P36,000 In view of the provisions of the Family Code, the 5:4 proportion is inapplicable. The entire estate shall, therefore, be divided as follows: Legitime of A ........................................... P 9,000 Legitime of X ........................................... 9,000 For free disposal ...................................... 18,000 P36,000

Answer 146

Since all of the survivors are illegitimate children, their legitime shall consist of 1/2 of the entire estate of P88,000, or P44,000. Two of the survivors, however, are acknowledged natural children, while three are acknowledged illegitimate children who are not natural. Therefore, the legitime of P44,000 shall be divided among them in accordance with the proportion of 5:5:4:4:4. In other words, each of the acknowledged natural children shall be entitled to 5/22 of the legitime of P44,000, or P10,000, while each of the acknowledged illegitimate children who are not natural shall be entitled to 4/22 of the legitime of P44,000, or P8,000. Consequently, the entire estate shall be divided as follows: Legitime of A ........................................... P10,000 Legitime of B ........................................... 10,000 Legitime of X ........................................... 8,000 Legitime of Y ........................................... 8,000 Legitime of Z .......................................... 8,000 For free disposal ...................................... 44,000 P88,000 With the new provisions of the Family Code, the 5:5:4:4:4 proportion is inapplicable. As there is now no distinction between acknowledged natural children and acknowledged illegitimate children not natural since they are both simply classified as illegitimate children, the entire estate shall be divided as: Legitime of A ........................................... P 8,800 Legitime of B ........................................... 8,800 Legitime of X ........................................... 8,800 Legitime of Y ........................................... 8,800 Legitime of Z .......................................... 8,800 For free disposal ...................................... 44,000 P88,000

Answer 147

A and B, who are legitimate children, shall be entitled to one-half of the entire estate which they shall divide in equal shares. They shall, therefore, receive P20,000 each. C and D, who are acknowledged natural children, shall each be entitled to one-half of the legitime of A or B. They shall, therefore, receive P10,000 each. E and F, who are acknowledged illegitimate children who are not natural, shall each be entitled to two-fifths of the legitime of A or B. They shall, therefore, receive P8,000 each. Consequently, the entire estate shall be divided as follows: Legitime of A ........................................... P20,000 Legitime of B ........................................... 20,000 Legitime of C ........................................... 10,000 Legitime of D ........................................... 10,000 Legitime of E .......................................... 8,000 Legitime of F .......................................... 8,000 For free disposal ...................................... 4,000 P80,000 Since C, D, E and F are all classified as illegitimate children under the Family Code, they shall receive P10,000 each. Consequently, the division of the entire estate shall be as follows: Legitime of A ........................................... P20,000 Legitime of B ........................................... 20,000 Legitime of C ........................................... 20,000 Legitime of D ........................................... 20,000 Legitime of E .......................................... 20,000 Legitime of F .......................................... 20,000 For free disposal ...................................... none P80,000

Answer 148

A and B shall be entitled to a legitime of one-half of P96,000, or P48,000, which they shall divide in equal shares. The free portion, from which the legitimes of the illegitimate children shall be taken, is, therefore, P48,000. Now, if we are going to satisfy the legitimes of the illegitimate children in such a way that each of the four acknowledged natural children shall receive 1/2, and the acknowledged illegitimate child who is not natural, 2/5 of the legitime of each of the legitimate children, the free portion of P48,000 shall not be sufficient to satisfy such legitimes. Since the law says that in no case shall the total legitimes of illegitimate chil dren exceed the free portion, we shall, therefore, have to apply the proportion of 5:5:5:5:4 in order to divide the free portion of P48,000 among the five illegitimate children. Hence, each of the four acknowledged natural children shall be entitled to 5/24 of P48,000, or P10,000, while the acknowledged illegitimate child who is not natural shall be entitled to 4/24 of P48,000, or P8,000. Consequently, the entire estate shall be divided as follows: Legitime of A ........................................... P24,000 Legitime of B ........................................... 24,000 Legitime of C ........................................... 10,000 Legitime of D ........................................... 24,000 Legitime of E ........................................... 24,000 Legitime of F ........................................... 10,000 Legitime of G ........................................... 24,000 P96,000 There is nothing left at the testator’s free disposal. Under the Family Code, C, D, E, F and G are all classifi ed as simply illegitimate children. Since the law provides that the total legitime of the illegitimate children shall not exceed the free portion, the legitime of each illegitimate child cannot be computed at one-half the legitime of the legitimate child. Hence, the free portion of P40,000 shall equally be divided among the five illegitimate children. Consequently, the entire estate shall be divided as follows: Legitime of A ........................................... P24,000 Legitime of B ........................................... 24,000 Legitime of C ........................................... 9,600 Legitime of D ........................................... 9,600 Legitime of E ........................................... 9,600 Legitime of F ........................................... 9,600 Legitime of G ........................................... 9,600 P96,000 There will be nothing left at the testator’s free disposal

Answer 149

If the testator is a legitimate person and he is survived by his legitimate parents or ascendants and illegitimate children, the legitime of the legitimate parents or ascendants shall consist of one-half (1/2) of the hereditary estate, while that of the illegitimate children shall consist of one-fourth (1/4) to be taken from the free portion.116 If the testator, however, is an illegitimate person and he is survived by his illegitimate parents and illegitimate children, the former are not entitled to any legitime, because they are excluded by the presence of the latter. In such case, the legitime of the illegitimate children shall consist of one-half (1/2) of the hereditary estate.

Answer 150

In order to solve the problem, we must take into consideration the provision of Art. 39, No. 4, of the Child and Youth Welfare Code (P.D. No. 603). Under this article, if the adopter is survived by legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child. Applying this rule to the above problem, it is evident that A’s legitime shall be equal to N’s legitime. Thus, the legitime of the parents is P20,000 which they shall divide in equal shares; the legitime of A and N is P10,000 which they shall divide in equal shares; and the remaining P10,000 shall be at the testator’s free disposal.

Answer 151

If illegitimate children concur with the widow or widower of the testator, the legitime of the illegitimate children shall consist of one-third (1/3) of the hereditary estate and that of the surviving spouse shall also consist of another third (1/3), with the remaining third (1/3) available for free disposal.

Answer 152

If illegitimate children concur with legitimate chidren or descendants and the widow or widower of the testator, the rules prescribed by the New Civil Code in Arts. 888, 892, 897, and 898 and by the Family Code in Art. 176, second sentence which repealed Art. 895 of the New Civil Code. These rules may be restated as follows: (1) The legitime of legitimate children or descendants shall consist of one-half of the hereditary estate. (2) The legitime of the surviving spouse shall be equal to the legitime of the legitimate children, unless there is only one legitimate child or descendant, in which case the legitime of such surviving spouse shall consist of one-fourth of the hereditary estate. (3) The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. It is to be recalled that all three types of illegitimate children under the New Civil Code are simply classified in the Family Code as illegitimate children. Hence, the rules that: (i) the legitime of each of the acknowledged natural children and natural children by legal fiction shall consist of one-half of the legitime of the legitimate children or descendants; and (ii) the legitime of each of the acknowledged illegitimate children who are not natural shall consist of four-fifths of the legitime of each of the legitimate of four-fifths of the legitime of each of the legitimate children or descendants are now both repealed. (4) The legitimes of the surviving spouse and the illegitimate children shall be taken from the free portion, provided that in no case shall the total legitime of such illegitimate children exceed such free portion, and provided further that the legitime of the surviving spouse must first be fully satisfied

Answer 153

The legitime of A and B consists of one-half of the entire estate (Art. 888). They are, therefore, entitled to P18,000 each. The legitime of the widow, W, consists of a portion equal to the legitime of each of the legitimate children (Arts. 897 and 898). She is, therefore, entitled to P18,000 which must be taken from the free portion. The legitime of the acknowledged natural child, C, consists of one-half of the legitime of each of the legitimate children or descendants (Art. 895, par. 1). He is, therefore, entitled to P9,000 which must be taken from the free portion. The legitime of the acknowledged illegitimate child who is not natural, D, consists of two-fifths of the legitime of each of the legitimate children or descendants (Art. 895, par. 2). He is, therefore, entitled to P7,200 which must be taken from the free portion. Consequently, the estate shall be divided as follows: Legitime of A ........................................... P18,000 Legitime of B ........................................... 18,000 Legitime of W .......................................... 18,000 Legitime of C ........................................... 9,000 Legitime of D ........................................... 7,200 For free disposal ...................................... 1,800 P72,000 Under the provisions of the Family Code, the legitime of either C or D, both of whom are simply classified as illegitimate children, shall consist of one-half of the legitime of either A or B. C and D are, therefore, entitled to P9,000 each, which amounts must be taken from the free portion. Thus, the estate shall be divided as: Legitime of A ........................................... P18,000 Legitime of B ........................................... 18,000 Legitime of W .......................................... 18,000 Legitime of C ........................................... 9,000 Legitime of D ........................................... 9,000 For free disposal ...................................... none P72,000

Answer 154

Since the legitime of legitimate children or descendants consists of one-half of the hereditary estate (Art. 888), A and B shall, therefore, be entitled to P36,000, or P18,000 each. Hence, the free portion from which the legitimes of the other survivors shall be satisfied is P36,000. It is evident, however, that if we are going to satisfy such legitimes in accordance with the shares prescribed for the survivors in the Civil Code, the amount of P36,000 will not be sufficient. How then can the legitimes of the survivors be satisfied? The solution is found in the last paragraph of Art. 895 of the Code. In a case like this, two limitations or conditions must always have to be considered. In the first place, in no case shall the total legitime of the illegitimate children ever exceed the free portion; and in the second place, the legitime of the surviving spouse must first be fully satisfied. (Art. 895, par. 3). Hence, since the legitime of the surviving spouse is equal to that of each of the legitimate children (Arts. 897 and 898), W shall be entitled to P18,000. There will, therefore, be P18,000 left in the free portion which will be available for distribution to the illegitimate children. Since the legitime of an acknowledged illegitimate child who is not natural shall be equal in every case to four-fifths of the legitime of an acknowledged natural child, this remainder of P18,000 shall be divided among the illegitimate children in the proportion of 5:5:4:4. Therefore, C and D shall be entitled to 5/18 of P18,000 each, while E and F shall be entitled to 4/18 of P18,000 each. Consequently, the estate shall be divided as follows: Legitime of A ........................................... P18,000 Legitime of B ........................................... 18,000 Legitime of W .......................................... 18,000 Legitime of C ........................................... 5,000 Legitime of D ........................................... 5,000 Legitime of E ........................................... 4,000 Legitime of F ........................................... 4,000 P72,000 There will be nothing left at the testator’s free disposal. In view of the changes brought about by the provisions of the Family Code, the proportion of 5:5:4:4 is inapplicable. Consequently, the estate shall be divided as: Legitime of A ........................................... P18,000 Legitime of B ........................................... 18,000 Legitime of W .......................................... 18,000 Legitime of C ........................................... 4,500 Legitime of D ........................................... 4,500 Legitime of E ........................................... 4,500 Legitime of F ........................................... 4,500 P72,000 There will be nothing left at the testator’s free disposal.

Answer 155

If illegitimate children concur with legitimate parents or ascendants and the surviving spouse, the hereditary estate shall be divided as follows: (1) Legitime of the legitimate parents or ascendants - 1/2 of the estate. (2) Legitime of the surviving spouse — 1/8 of the estate to be taken from the free portion; (3) Legitime of the illegitimate children — 1/4 of the estate to be taken from the free portion; (4) Disposable portion — 1/8 of the estate.

Answer 156

The estate shall be divided as follows: (1) Legitime of M, consisting of 1/2 of estate ... P36,000 (2) Legitime of W, consisting of 1/8 of estate ... 9,000 (3) Legitime of A and B, consisting of 1/4 of estate .............................................. 18,000 (4) Disposable portion in favor of X ................. 9,000 P72,000 Applying the provisions of the second paragraph of Art. 895 of the Civil Code, the P18,000 to which A and B are entitled shall be divided between them in the proportion of 5 is to 4. In other words, A shall be entitled to 5/9 of P18,000, or P10,000, while B shall be entitled to 4/9 of P18,000, or P8,000. Said 5:4 proportion is, however no longer applicable considering that there is no distinction between A and B under the Family Code. Hence, both shall be entitled to P9,000 each.

Answer 157

This question is answered by the provision of Art. 902 of the Code, which states that the rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. In reality, this provision is merely a recognition of the principle of representation. Consequently, the precept can be extended to cases of disinheritance or incapacity. It must be observed, however, that unlike the case of legitimate children or descendants, where the person or persons to whom the right is transmitted must be legitimate descendants, here the representatives may be either legitimate or illegitimate descendants.

Answer 158

Had B survived X, the distribution of the estate would have been as follows: W .................................. P60,000, as compulsory heir 60,000, as voluntary heir A ................................... 60,000, as compulsory heir B ................................... 60,000, as compulsory heir P280,000 Because of predecease, B’s share, which is in reality his legitime, is rendered vacant. Under the law, this vacant share shall now pass to B’s legitimate children, C and D, by right of representation. His acknowledged natural children, E and F, cannot participate as co-representatives because of the doctrine of absolute separation between members of the legitimate family and members of the illegitimate family (Art. 992, Civil Code). Consequently, the estate shall be distributed as follows: W ............................. P60,000, as compulsory heir 60,000, as voluntary heir A .............................. 60,000, as compulsory heir C .............................. 30,000, by right of representation D .............................. 30,000, by right of representation P240,000

Answer 159

In such case, E and F, acknowledged natural children of B, can then participate in the succession as co-representatives. In other words, the legitime of B, which has been rendered vacant because of predecease, shall now pass to his children, C, D, E and F in the proportion of 2:2:1:1. C shall receive 2/6 or 1/3 of P60,000; D, the same; E shall receive 1/6 of P60,000; and F, the same. Consequently, the estate shall be distributed as follows: W .......................... P60,000, as compulsory heir 60,000, as voluntary heir A ........................... 60,000, as compulsory heir C ........................... 20,000, by right of representation G ............................ 20,000, by right of representation E ............................ 10,000, by right of representation F ........................... 10,000, by right of representation P240,000 In view, however, of the new provisions of the Family Code, C, D, E and F shall all simply be classified as illegitimate children. Hence, the proportion of 2:2:1:1 is inapplicable. The estate shall, thus, be distributed as: W .............................. P60,000, as compulsory heir 60,000, as voluntary heir A ............................... 60,000, as compulsory heir C ............................... 15,000, by right of representation D ............................... 15,000, by right of representation E ............................... 15,000, by right of representation F ............................... 15,000, by right of representation P240,000 (Note: In subsection 2, under Section 1 of Chapter 3 (Legal or Intestate Succession), the subject of representation, Arts. 970, et seq., will be discussed. Although it is a concept of intestate succession, nevertheless, representation may also take place in testamentary succession in case of predecease, incapacity and disinheritance. It must be noted, however, that in testamentary succession, only a compulsory heir may be represented and only with respect to his legitime. Anent the subject of representation by illegitimates which will also be discussed under Arts. 970, et seq., and under Art. 992, it must be noted that the following rules will apply: first, if the person to be represented is legitimate, it is essential that the representative must also be legitimate; and second, if the person to be represented is illegitimate, then it is immaterial whether the representative is legitimate or illegitimate. This is so because of the doctrine of absolute separation between members of the legitimate family and members of the illegitimate family enunciated in Art. 992 of the Civil Code.)

Answer 160

True. A-B (illegitimate child of A)-C (illegitimate child of B)

Answer 161

C inherits B’s share of P500,000 in A’s estate, by the right of representation. [NOTE: Under the old Civil Code, only legitimate descendants could represent acknowledged natural children. (Art. 843, old Civil Code).].

Answer 162

No, because of the barrier between the legitimate family. (See Art. 992; see also Llarante v. Rodriguez, 10 Phil. 585). This is unfair because this would place the illegitimate children of illegitimate children in a better position than the illegitimate children of legitimate children contrary to the doctrine set forth in Conde v. Abaya, 13 Phil. 249. But then Art. 992 is the law, and harsh as it is, it must be applied.

Answer 163

Yes. 1003 Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. 1004

Answer 164

1) Trace where the free portion went in total intestacy 2) Since part of that free portion was disposed of by will, the testamentary provision should be carried out, and what is left of the free portion should then be given to the intended beneficiary in intestacy

Answer 165

The will is not inofficious, since it disposes only of 1/8 of the estate, the disposable portion being ¼. The legitimes of the compulsory heirs are – o A and B as legitimate parents – ½ of estate = P300,000 o Y as surviving spouse – ¼ of estate = P150,000 In total intestacy, the sharings would have been [according to Art997] o A and B to ½ of the estate = P300,000 o Y to ½ of the estate = P300,000 The intended recipient of the undisposed portion is Y since she is the one to whom the entire free portion went in total intestacy [since A and B simply got their legitimes. Therefore, since part of the free portion was given away by will, the remainder should be given to Y. Hence, Caritas Manila gets 1/8 or P75,000. A and B get ½ or P300,000 divided between them, so P150,000 each. Y then gets P225,000. All shares total to the P600,000 estate.

Answer 166

By representation

Answer 167

There is, however, an exception, and that is when brothers and sisters or nephews and nieces concur in the succession. In such case, according to Art. 1001, 1/2 of the estate shall be given to the surviving spouse and the other 1/2 shall be given to the surviving spouse and the other 1/2 shall be given to the brothers and sisters or nephews and nieces. Furthermore, there are certain principles that must always be borne in mind whenever collaterals are called to the inheritance. In the first place, when the law speaks of collateral relatives, it can only refer to those within the fifth degree. In the second place, where two or more collateral relatives concur in the succession, the rule of proximity by virtue of which the nearest in degree shall exclude the more remotes ones is applicable. In the third place, as an exception to the rule of proximity, the right of representation is also recognized, but it is a right which is extended only to nephews and nieces. And in the fourth place, where the survivors are of the same degree, the rule of preference by reason of relationship by the whole blood is also recognized, but it is a rule which can be applied only to brothers and sisters or nephews and nieces and not to other collaterals.

Answer 168

NO. Since Teodoro was an acknowledged natural child or was illegitimate and since Juanita was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action for the recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco's estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession between legitimate and illegitimate relatives. Corpus concedes that if Teodoro R. Yangco was a natural child, he (Tomas Corpus) would have no legal personality to intervene in the distribution of Yangco's estate. Art. 992 of the NCC provides that "an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child." The rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the illegitimate child.

Answer 169

SC held that he cannot because: 1. He was an illegitimate child of grandson. He was born outside of wedlock and while his father’s first marriage is still subsisting. 2. An illegitimate child may not inherit by right of representation from the legitimate relatives of his father. ART. 992

Answer 170

Felisa Jardin is the sole legal heir of the decedent. The SC held that the grandchildren's reliance in Art 990 is misplaced and that the applicable law is Art 992. Art 990 is not applicable because Pablo Santero is a legitimate child of Simona while the oppositors are the former's illegitimate children. (Art 990 applies to the right of the descendants of an illegitimate child to inherit by representation.) Art 992 provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. Between the legitimate and illegitimate family there is presumed to be an intervening antagonism and incompatibility. It is clear therefore from Art 992 of the NCC that the phrase "legitimate children and relatives of his father and mother" includes Simona Jardin. Hence, the illegitimate grandchilren are barred from asserting their right to succeed from Simona, who is a legitimate relative of their father. ART 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother (who must be a legitimate child). (However note that descendants, whether legitimate or illegitimate, can inherit by right of representation if the person to be represented is an illegitimate child.)

Answer 171

No. First, Articles 902, 989 and 990 clearly speaks of successional rights of illegitimate children, which rights are transmitted to their descendants upon death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. Second, although Art 982 provides that "the grandchildren and other descendants shall inherit by right of representation", the same is limited by Art 992 to the end that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother (who must be legitimate children themselves). Third, it is true that while the NCC granted successional rights to illegitimate children, those articles must however be read in conjunction with Art 992, which prohibits the right of representation from being exercised where the person to be represented is a legitimate child. The determining factor therefore is the legitimacy or illegitimacy of the person to be "represented." It must be emphasized that illegitimate children have only those rights expressly granted to them by law. Fourth, the term "relatives", in accordance with the rules of statutory construction, must be understood to have a general and inclusive scope inasmuch as the term is a general one. In fact, if the law wants to distinguish it expressly says so by adding qualifiers such as the word "collateral." From the aforementioned, SC affirmed its earlier decision that the illegitimate grandchildren are barred from inheriting ab intestato from Simona's estate. ART 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother (who must be a legitimate child). (However note that descendants, whether legitimate or illegitimate, can inherit by right of representation if the person to be represented is an illegitimate child.)

Answer 172

NO. It is clear from the records that the petitioners cannot inherit the properties in question because of Article 992 of the Civil Code. Being relatives on the legitimate line of Julia Capiao, they cannot inherit from her illegitimate daughter. Article 992.

Answer 173

Article 992 is the Principle of Absolute Separation with the legitimate family and the illegitimate family. There is Reciprocal prohibition. This is prohibition is also called the IRON-CLAD BARRIER. If the person to be represented is an ILLEGITIMATE, he can be represented by his legitimate and illegitimate children. If the person to represented is a LEGITIMATE child, he can only be represented by his own legitimate children.

Answer 174

Exception: 992 Exception: Even if illegitimate children have the right to succeed from their parents they cannot inherit from the RELATIVE of their parents.

Answer 175

p. 48 of Paras Reviewer

Answer 176

B, D and E can inherit from A by right of representation, but C cannot. C is excluded from the succession because under Art. 992 of the Civil Code, an illegitimate child cannot inherit ab intestato from the legitimate relatives of his natural parents.

Answer 177

(a) D can represent his father B, because a legitimate child B can be represented by his own legitimate child D. (b) E cannot represent B in the succession from A’s estate. Reason: An illegitimate child (E) has no right to inherit ab intestato from the legitimate children and relatives (A) of his father (B) or vice versa. (Art. 992). There is INDEED A BARRIER. (c) F and G can represent C in the succession from A, because the rights granted an illegitimate child (C) are transmitted upon his death to his descendants, whether legitimate (F) or illegitimate (G).

Answer 178

It depends. If the illegitimate child is going to represent a person who is a legitimate child of the decedent, the answer is NO, because of the BARRIER in Art. 992. But if he is going to represent a person who is an illegitimate child of the decedent, the answer is YES, for this time, there is no barrier since the whole line is illegitimate. Moreover, the hereditary rights of an illegitimate child are transmitted to his descendants, whether legitimate or illegitimate.’’ The Code Commission is of the belief that an illegitimate child can represent a person who is a legitimate child, and it gives as reason Art. 982, which states that “the grandchildren and other descendants shall inherit by right of representation.” The Commission further states that the terms “grandchildren and descendants,” if correctly understood, refer to both legitimate and illegitimate offspring. This is WRONG, because such an answer contradicts the clear provisions of Art. 992. What has been discussed about the barrier applies not only to intestate succession, but also to testamentary succession, insofar as the legitime is concerned because succession to the legitime is also succession by operation of law. Notice too that Art. 992 is reciprocal, therefore just as the illegitimate child cannot inherit ab intestato from the legitimate relatives of his parents, so also the legitimate relatives cannot inherit ab intestato from said illegitimate child. This rule is just.

Answer 179

No, because of the barrier.

Answer 180

W inherits the entire estate to the exclusion of C, | because of the barrier in Art. 992.

Answer 181

No, because of the barrier. An illegitimate daughter whose deceased mother was a legitimate daughter has no right whatever in the intestate succession of the grandmother, even if the latter died without legitimate descendants surviving her.

Answer 182

Only the widow inherits. REASON: The brothers do not inherit because of the barrier in Art. 992.

Answer 183

If the predeceased natural father is a legitimate child of | the decedent, NO because of the BARRIER; if also an illegitimate child, YES, for there would be no barrier.

Answer 184

Only the nephew, because the half-brother is excluded by the barrier in Art. 992.

Answer 185

None, even if she proves acknowledgment — because of the existence of the barrier under Art. 992.

Answer 186

A study of the record reveals that the lower court was rather hasty in dismissing the petition. As we see it, the petition was not a collateral attack on a Torrens title. The petitioner did say there was a need to appoint an administrator to prevent the property from being usurped, but this did not amount to a collateral attack on the title. The alleged fraudulent issuance of title was mentioned as a justification for her appointment as administrator. But there was nothing in the petition to indicate that the petitioner would attack the title issued to Diosdado in the same proceeding. In fact, the petitioner declared that whatever remedy she might choose would be pursued in another venue, in a proceeding entirely distinct and separate from her petition for appointment as administratrix. Regarding the Torrens certificate of title to the disputed property which was presented to defeat the petitioner’s appointment, we feel that the position of trial court was rather ambivalent. For while relying on such title to justify the dismissal of the petition, it suggested at the same time that it could be attacked as long as this was not done in the proceeding before it. The private respondent’s arguments that the petitioner cannot inherit ab intestato from the legitimate parents of the absentee is immaterial to this case. Her disqualification as an heir to her supposed grandparents does not inhibit her from petitioning for a declaration of absence or to be appointed as an administratrix of the absentee’s estate. It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration. Thus, the court may declare that the petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife can be combined and adjudicated in the same proceeding. The purpose of the cited rules is the protection of the interests and property of the absentee, not of the administrator. Thus, the question of whether the administrator may inherit the property to be administered is not controlling. What is material is whether she is one of those allowed by law to seek the declaration of absence of Remigio Tol and whether she is competent to be appointed as administratrix of his estate. The issue of whether or not the property titled to Diosdado Tol is really owned by him should be resolved in another proceeding. The right of Daya Maria Tol to be appointed administratrix cannot be denied outright by reason alone of such issue. Even if it be assumed that the title obtained by Diosdado Tol is already indefeasible because of the lapse of the one-year period for attacking it on the ground of fraud, there are still other remedies available to one who is unjustly deprived of his property. One of these is a claim for reconveyance, another is a complaint for damages. The petitioner can avail herself of such remedies if she is appointed administratrix of the estate of the absentee. Finally, we find that the appeal was perfected seasonably. Notice of appeal was fi led on June 4, 1987, within the 15-day extension of the period to appeal as granted by this Court in its resolution dated July 8, 1987. WHEREFORE, the petition is GRANTED. This case is hereby REMANDED to the court of origin for determination of the legal personality of Daya Maria-Tol to petition the declaration of Remigio Tol’s absence and of her competence to be appointed as administratrix of his estate.

Answer 187

a series of degrees forms a line

Answer 188

There is no legal limit to the number of degrees for entitlement to intestate succession. The practical limit is of course, human mortality. Mode of Counting Degrees in Direct Line - One generation = one degree - Parent to child = 1 degree - Grandparent to Grandchild = 2 degrees - Great-Grandparent to Great-Grandchild = 3 degrees

Answer 189

Collateral Line – computation of degree is important in the collateral line because intestate succession extends only to the FIFTH [5th] DEGREE of Collateral relationship (Art1010) o Mode of Counting Degrees in the Collateral Line [Art966 par3] i. From the reference point, ascend to nearest common ancestor [if there are more than 1 nearest common ancestor, choose any one.] ii. Then descend to the other reference point iii. Number of generations constituting the ascent and the descent is the degree of the collateral relationship. ``` o Collaterals by Degrees - First degree – none - Second degree – brothers / sisters - Third degree i. Uncles / Aunts ii. Nephews / Nieces - Fourth degree i. First Cousins ii. Brothers/Sisters of a grandparent [grand-uncles / grandaunts] iii.Grandchildren of a brother/sister [grand-nephews/grand-nieces] - Fifth degree i. Children of a first cousin ii. First cousins of a parent iii.Brothers/sisters of a greatgrandparent iv. Great grandchildren of a brother/sister ```

Answer 190

With reference to brothers and sisters and nephews and nieces, there is a ratio of 2:1 for full-blood and half-blood relationship, respectively. [Arts1006 and 1008] With respect to collateral relatives, the full-blood and half-blood relationship is NOT MATERIAL.

Answer 191

a. Nearer excludes the more remote; b. Direct line is preferred over the collateral; c. Descending line is preferred over the ascending.

Answer 192

a. Concept of degree.-- This is the method of computing the proximity of relationship. Every degree is one generation. b. Concept of lines.-- (These are) relative positions in the family between 2 persons (genealogical chart.) In intestacy: a. There is no limit.-- Direct line-- (i) ascending (ii) descending b. Limit of five degrees.-- Collateral line-- 2 persons having a common ascendant

Answer 193

``` Thus, the son excludes the grandson, the father excludes the grandfather, the brother excludes the uncle or nephew. As a matter of fact, in legal or intestate succession, it is one of the bases of the order of succession. However, it is not absolute in character. There is one very important exception. This exception is what is known as the right of representation. By virtue of this right, the relative nearest in degree does not always exclude the more remote ones, because, by fi ction of law, more distant relatives belonging to the same class as the person represented, are raised to the place and degree of such person, and acquire the rights which the latter would have acquired if he were living or if he could have inherited. ```

Answer 194

In these Orders of Succession, whether the decedent is legitimate or illegitimate, some may be excluded and some may concur in the succession, as mentioned above with regard to the surviving spouse. In connection with this rule, if the survivors are legitimate child, legitimate parents, surviving spouse, and brothers and sisters of the individual who dies, the rules are these: Exclusion The legitimate child, children, or descendants shall exclude the legitimate parents and ascendants. Preference The brothers and sisters shall not, likewise, inherit from their deceased brother if there are surviving heirs in the direct line. The surviving brothers and sisters are in the collateral line. Hence, the rule on preference of line shall apply. Direct line shall be preferred over the collateral line. Concurrence Legitimate and illegitimate children concur with each other. They are not mutually exclusive in terms of succeeding in the inheritance from their parents, although subject to the rules on distribution and their respective shares under the law. However, with regard to the surviving spouse, whether the survivors are in the direct [child, children, ascendants, parents, ascendants] or collateral line [brothers and sisters, nephews and nieces, other collateral relatives], he or she shall concur with them, unless disqualified [disinherited, incapacitated, waiver (repudiation)].On another point, nevertheless, if one of the heirs of the decedent is an illegitimate child or children, they cannot exclude the legitimate parents. They will concur with them and with the surviving spouse if the deceased does not have any legitimate child, children, or descendants. The same principle is applied if the decedent is an illegitimate. In this case, the illegitimate child, children, or descendants can now exclude the illegitimate parents of the decedent.

Answer 195

A. General Rule – the time of the decedent’s death o Because that is when successional rights vest. B. If institution is subject to suspensive condition – 1. Time of the decedent’s death AND 2. Time of the happening of the condition C. If final judgment is a requisite of unworthiness – at the time of final judgment.

Answer 196

No. The law provides that to fi nd out whether or not he was capacitated, final judgment should be awaited. Had he been acquitted, he would have been entitled to inherit unless otherwise disqualified.

Answer 197

No, because at the time the condition was fulfi lled, A was already dead, and therefore incapacitated. (See Art. 1036, par. 1). Therefore, A does not transmit any rights in the inheritance from T to his (A’s) own heirs. Yes, because insanity does not incapacitate for purposes of succession.

Answer 198

1. the order of succession; 2. the amount of successional rights; 3. the intrinsic validity of testamentary provisions; and 4. the capacity to succeed The first three are enumerated in the second paragraph of Art. 16, while the last is stated in Art. 1039.

Answer 199

Octavio cannot legally claim inheritance from his father Gold by invoking the successional rights of acknowledged illegitimate children under Philippine law. In this country, where the question before the court involves the legal capacity of the claimant to succeed the decedent who is a foreigner, we adhere to the nationality principle. According to the Civil Code, “capacity to succeed is governed by the law of the nation of the decedent.” (Art. 1039). So what is applicable is the law of X State which declares that illegitimate children cannot inherit by intestate succession.

Answer 200

Comparison of Rules on Testate and Intestate Succession

Answer 201

A. General rule – must be LIVING when succession opens 1. When succession opens – the decedent’s death under Art777 2. Meaning of “living” – it is enough that the heir, devisee or legatee be already conceived when the decedent dies, provided it be born later, in accordance with Articles 40 and 41. Inheriting is favorable to the child. B. If institution is subject to a Suspensive Condition o Successor must ALSO be living when the condition happens [Art1034 par3]. Thus, in a conditional institution, the successor must be living BOTH when the decedent dies AND when the condition happens. C. If institution subject to a Suspensive Term o The requirement of being alive applies only at the moment of the decedent’s death, the successor need not be alive, when the term arrives [Art878] Representation NOT an exception to Requirement. The requirement that the successor should be alive when the decedent dies is absolute. There is no exception to this rule, the provisions of this article notwithstanding. For representation to occur, the representation must at least already be conceived when the decedent dies, because of the provisions of Articles 971 and 973. Example – X has 2 sons A and B. B was disinherited by X. X died in 1985. In 1988 B begot a child. B’s child cannot represent B in the succession to X.

Answer 202

1. the heir, legatee or devisee must be living or in existence at the moment the succession opens 2. such heir, legatee or devisee must not be incapacitated by law to succeed It must be noted that the first requisite is not absolute in character. There are certain well-known exceptions. These exceptions are regulated by the provisions of Arts. 1026, 1029, and 1030 of the Code. On the other hand, the right given to the representative to inherit by right of representation does not really constitute an exception because, even in such case, it is essential that the representative must be living at the moment the succession opens. The same is true with regard to the right of a child already conceived at the time of the death of the decedent. Under our law, a conceived child shall be considered born for all purposes that are favorable to it, provided that it be born later with the conditions specified in Art. 41 of the Codes.

Answer 203

1. those who are not living or in existence at the time of the death of the decedent, subject to the exceptions provided for in Arts. 1026, 1029 and 1030 of the Code 2. those who cannot be identified, such as uncertain persons under Art. 845 3. individuals, associations and corporations not permitted by law to inherit those who lack juridical personality?

Answer 204

1. incapacity based on the possibility of undue influence or on interest, such as those specified in Nos. 1 to 5 of Art. 1027 2. incapacity based on morality or public policy, such as those referred to in Art. 1028 3. incapacity based on acts of unworthiness, such as those specified in Art. 1032 4. incapacity by operation of law, such as the incapacity of the guilty spouse to inherit from the innocent spouse if there is a decree of legal separation, or the incapacity of the adopter to inherit from his adopted child, or the incapacity of illegitimate children and legitimate relatives of the decedent to inherit from each other.

Answer 205

As has been stated before, construed strictly and grammatically, the law (Art. 1025, par. 1) would allow C to inherit by representation, but this is absurd for it would result in suspended ownership by A of B’s share. Suppose for example, B will have a child only 30 or 40 years after the decedent’s death, certainly this would be unduly burdensome, and certainly, too, this could not have been the intention of the Code Commission or of Congress. THEREFORE, what must have been in the mind of the Code Commission in inserting the clause “except in case of representation when it is proper?’’ The Code Commission apparently thru defective grammatical phraseology, failed to state that what it meant was “In case of representation, if proper, the person represented need not be alive at the time the succession opens.” [NOTE: Even this, of course, is useless because same is already implicit in the various articles on representation and “predecease.”]. [NOTE: A legacy made in favor of a legatee who was already dead at the time the will was made is VOID. (Resurreccion v. Javier, 62 Phil. 599).].

Answer 206

A. Article 1027 pars. 1-5 – applicable only to testamentary succession B. Article 1027 par6 – applicable to ALL kinds of succession C. Article 1028 – applicable only to testamentary succession D. Article 1032 – applicable to ALL kinds of succession

Answer 207

the ability to inherit and retain property obtained mortis causa It is also termed passive testamentary capacity

Answer 208

a) The will must have been executed during the testator’s last illness b) The spiritual ministration must have been extended during the last illness c) The will must have been executed during or after the spiritual ministration. Notwithstanding the seemingly restrictive terms of this disqualification, it applies not only to Christian priests, pastors, ministers and so forth, but also to all individuals belonging to other religions, sects or cults, whose office or function is to extend the peculiar spiritual ministrations of their creed

Answer 209

o Purpose of disqualification – to prevent indirect violations or circumventions of par1. o Spouse of religious minister – does the prohibition apply to the spouse of the minister? YES. Although the Catholic priests celibate, the priesthood or ministry of other denominations or religions are not. Certainly, the mischief sought to be averted can be perpetrated by the spouse.

Answer 210

o When disqualification applies – the will must have been executed by the ward during the effectivity of the guardianship, which means at anytime between the commencement of the guardianship and its dissolution. o What kind of guardianship covered – terms of disqualification seem to be limited to guardians over the property. In view, however, of the purpose of the prohibition, the argument that this prohibition should apply as well to guardians over the person is most tenable. o Exception – a guardian who happens to be an ascendant, descendant, brother, sister or spouse of the ward-testator is excluded from the prohibition. Curiously, thus exception is not allowed in the other paragraphs.

Answer 211

Essentially a reiteration of the disqualification in Art823, but cast more in general terms, since this article nullifies not just legacies and devises but all testamentary dispositions made in the witness’ favor. NOTE – there is a discrepancy between this paragraph and Art823, which allows for an exception: i.e. if there are 3 other competent witnesses. That exception should be read into this paragraph

Answer 212

Scope of Prohibition – the person must have taken care of the testator during the latter’s final illness. “Taking Care” means medical attendance with some regularity or continuity that the possibility of duress or influence exists. However, the pharmacist who only happens to fill a prescription does not fall under the interdiction.

Answer 213

Yes. He can get the legitime. If the priest were a brother? Yes. He can inherit by intestacy. Disqualification applies only to testamentary dispositions.

Answer 214

Oki Spouse of priest/minester- are not disqualified, relatives law refers to relative by consanguinity.

Answer 215

After the guardianship began (beginning of the guardianship) --- Before termination of guardianship (approval of final accounts or lifting of guardianship.) Exception: Disposition is valid when the guardian is an ascendant, descendant, brother, sister or spouse.

Answer 216

Exception: If there are three (3) other witnesses to the will

Answer 217

Those submitted by the guardian to the court upon the termination of his authority as such, the approval of which will put end to his final responsibility to the ward.

Answer 218

Yes. Capacity to succeed is the general rule, while incapacity to succeed is the exception. Consequently, the rules on incapacity must be strictly construed.

Answer 219

He gets P500,000 as legitime, but not the P100,000 which is part of the free portion. It is unfair to deprive him of the legitime since he is entitled to this, not by virtue of the will, but by operation of law. The P100,000 will accrue in favor of the friend, since the requirements for accretion are present. Hence, the friend gets a total of P500,000.

Answer 220

The whole P1 million, not as a voluntary or testamentary heir, but as an intestate heir. Note that in the problem given, he is the only legal heir. He inherits in this capacity, for after all, intestacy goes by operation of law. Of course, if the son had prevented the father from making any will, he would be incapacitated, not because of this provision, but because of unworthiness.

Answer 221

No, because the law disqualifies him (G) “even if the testator should die after the approval of the final accounts.” The exception is when G is one of the relatives mentioned in the law.

Answer 222

Yes, the legacy is valid, for the law does not disqualify the guardian’s relatives (unlike the rule in the case of the priest and the minister). But of course, if the legacy had been given to the daughter only to enable the guardian to later on get the benefit of the inheritance, said legacy would be null and void not because of Art. 2027, no. 3, but because of Art. 1031 which says that “a testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made thru an intermediary, shall be VOID.”

Answer 223

The bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper" The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator's nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of his estate. That could not have been his intention. In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact date of his death or state with certitude what category of nearest male relative would be living at the time of his death, he could not specify that his nearest male relative would be his nephew or grandnephews (the sons of his nephew or niece) and so he had to use the term "nearest male relative". Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was likewise inoperative. It should be understood that the parish priest of Victoria could become a trustee only when the testator's nephew living at the time of his death, who desired to become a priest, had not yet entered the seminary or, having been ordained a priest, he was excommunicated. Those two contingencies did not arise, and could not have arisen, in this case because no nephew of the testator manifested any intention to enter the seminary or ever became a priest. This case is covered by article 956, which provides that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in which the right of accretion exists" This case is also covered by article 960(2), which provides that legal succession takes place when the will "does not dispose of all that belongs to the testator." There being no substitution nor accretion as to the said ricelands, the same should be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as to the said ricelands. The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to the indivisibility of the testator's will is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the property covered by the said legacy.

Answer 224

YES. The rule that only the extrinsic validity of the will is looked upon in probate proceedings is not absolute. For practical considerations, the probate court is not powerless to pass upon certain provisions of the will even before it is probated. NO. The prohibition in Art. 739 of the NCC is against the making of a donation between person who are living in adultery or concubinage. It is the donation which becomes void. The given cannot give even assuming that the recipient may receive. In this case, the wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage. Art. 1028 of the NCC: The prohibitions mentioned in Art. 739, concerning donations inter vivos shall apply to testamentary provisions.

Answer 225

Yes, provided that L is not otherwise incapacitated. Notice here that the legacy was made by, and not to, the cabinet member. The prohibition therefore does not apply. [NOTE: Under the Revised Penal Code, the penalties of arresto mayor, suspension in its maximum and medium periods and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office.]

Answer 226

False. Art. 1032 applies to all kinds of succession. 1032 is applicable to testate and intestate succession notwithstanding that some paragraph expressly mention testator.

Answer 227

Unworthiness gives rise to total disqualification, i.e. the unworthy heir is incapacitated to succeed from the offended party by ANY FORM OF SUCCESSION. Thus, unworthiness and disinheritance have identical effects. Unworthiness is disinheritance imposed by law. That unworthiness deprives the unworthy heir even of the legitime is clear from Article 1035.

Answer 228

W, alone, shall inherit from H. Legally, the criminal conviction of W for adultery is not an act of unworthiness within the meaning of Art. 1032 of the Civil Code. The only time when a guilty spouse is considered unworthy to inherit from the other is when there is a decree of legal separation. Here, there is no legal separation. It is different in the case of B. He is unworthy to inherit from H because he has been convicted of adultery with the spouse of the decedent (Art. 1032, No. 5, Civil Code). In the case of C and D, although there is no question about their capacity to inherit from H, nevertheless, they are excluded from the succession by the presence of W.

Answer 229

YES, in view again of the moral perversity of the parent as revealed by his act of persuasion. The law says “attempted against their virtue.” It would seem that no criminal conviction is needed here.

Answer 230

Under the rules on disinheritance, a subsequent reconciliation is enough (Art922); under those on unworthiness, either a written pardon or a subsequent will is required. Supposing that there is a reconciliation but nothing in writing, will it be correct to conclude that the heir is restored to capacity under the rule on disinheritance but stays disqualified under the rule on unworthiness. Balane says this seems unacceptable because that would make the rules on unworthiness [which is by operation of law and is only the implied will of the offended party] prevail over those on disinheritance [which is his express will]. THUS, the most acceptable reconciliation seems to be the following: 1. If offended party DOES NOT MAKE A WILL subsequent to the occurrence of the common cause – apply article 1033, unworthiness sets in ipso facto and written condonation is necessary to restore capacity. 2. If offended party MAKES A WILL subsequent to the occurrence of the common cause – a. If he knew of the cause i. If he disinherits – art922, disinheritance is ineffective. ii. If he institutes or pardons the offender – offender restored to capacity. iii. If will is silent – this is disputed. But the better opinion is that the unworthiness stays. b. If he did not know of the cause – unworthiness stays

Answer 231

Express pardon once made is irrevocable, but if the pardon is tacit made(by institution in a will), the subsequent revocation of the will instituting the disqualified person renders the pardon without effect.

Answer 232

C/P: It is the unilateral of the testator. R: It is a bilateral act. There must be forgiveness and the heir must accept.

Answer 233

If the testator already knew the cause of the unworthiness at the time of making the will but still he provides something for that unworthy heir in the will, there is now an IMPLIED CONDONATION. The will in which the implied condonation is made must be valid and it must not be revoked in order that there is implied condonation because implied condonation is dependent on the will.

Answer 234

If knowledge comes only AFTER the execution of the will, condonation must be in writing. This is EXPRESS CONDONATION. If the cause for unworthiness is also a ground for disinheritance, the rule on disinheritance applies. Thus, reconciliation is enough. There is no requirement that the testator should condone it in writing. But if there is no disinheritance and there is only act of unworthiness, if the testator knew of the act only after the execution of the will, there has to be condonation in writing. The only instance wherein an incapacitated heir is restored to capacity by the mere act of reconciliation is when there is a decree of legal separation the guilty spouse becomes incapacitated. But when there is subsequent reconciliation the decree shall be set aside and the spouse will now be restored to capacity.

Answer 235

Yes, the cause of his unworthiness shall be without effect since the father had knowledge thereof at the time the will was made. Here, we have an instance of a pardon by implication. No, inasmuch as the incapacity also obtains in intestate succession. Had the father desired his son to inherit, he should have condoned the act in writing.

Answer 236

True. Unless the pardon was given because of proven innocence (as when somebody else turns out, after final judgment, to have been the guilty party). [NOTE: Service of sentence does not erase incapacity.]

Answer 237

No, because the son was not given anything in the will. It is not the making of the will that condones; it is the fact of providing something in the will in favor of the unworthy son that works as an implied condonation. While technically, there might be a “preterition” (unless the son had received something previously by way of donations inter vivos or had been the grantee of a remission), it is submitted that this situation is similar to a case of preterition where the preterited heir predeceases the testator. Thus, it is believed that the institution of heirs in this case will remain effective without prejudice to the right of representation.

Answer 238

True. Provided, there was no vitiated consent. A contrary rule would be contrary to good morals.

Answer 239

True. 1035 In disinheritance, if a person is disinherited he can still be represented. But the disinherited parent shall have no usufruct and administration of the property received by the representative (Article 923). This same rule applies to incapacity. The incapacitated heir can still be represented but the incapacitated heir has no right of usufruct or administration over the property received by the representative.

Answer 240

B is correct. A is certainly incapacitated under No. 1 of Art. 1027 of the Civil Code. There can be no question about that. But B is also incapacitated to inherit from the testator under No. 2 of the same article being a brother of A, and therefore, a collateral relative of the latter within the fourth degree. There can also be no question about that. It must be noted, however, that their legitime will not be affected by their disqualification. What is affected is their share in the disposable free portion. Such shares shall pass to their co-heir, F, by right of accretion pursuant to Arts. 1016 and 1017 of the Civil Code. Therefore, A shall still be entitled to his legitime of P30,000; B, to his legitime of P30,000; and F, to the entire free portion of P60.000. If the incapacity, however, is due to any of the causes specified in Art. 1032, it is clear that even the legitime of the compulsory heir who has committed the act of unworthiness is affected. It is well-settled not only because of the phraseology of the law, but also because of the very nature of the incapacity itself, that incapacity due to unworthiness has the effect of depriving the heir of any share or participation in the inheritance. This applies not only to the share to which he is entitled by force of the testator’s will, but also to the share to which he is entitled by law. It must be noted, however, that the incapacity is personal; it cannot, therefore attach to his own children or descendants. Consequently, in testamentary succession, if the heir who has committed the act of unworthiness is a compulsory heir in the direct descending line and he should have children or descendants of his own, the latter shall acquire his right to the legitime. If there are no children or descendants who can represent him, then the legitime shall be given to those who are entitled thereto in accordance with the rules of intestate succession. The same principle is also applied in legal or intestate succession. If the legal heir who has committed the act of unworthiness should have children or descendants of his own, the latter shall be entitled to the entire share which is rendered vacant, provided, of course, that the right of representation can properly take place. If there are no children or descendants who can represent him, then the vacant share shall be given to those who are entitled thereto by right of accretion.

Answer 241

B’s legitime is only P100,000 (1/3 of half of the estate). Hence, E and F will each get P50,000. There is no right of representation with reference to the free portion. (Art. 970; Art. 856, par. 2). B cannot enjoy the usufruct and administration of the P100,000 given to his children. [Observe that a living person may be represented. This is so in case of: (a) incapacity (Art. 1035) (b) disinheritance (Art. 923).]. [Note that Art. 1035 says that the representatives get the unworthy heir’s legitime. This is because there is no representation in this case with reference to the free portion. The free portion may be given: (a) to the substitute, if any (b) to the co-heirs, in case of intestacy, if accretion is NOT proper. Upon the other hand, in case of complete intestacy, the right of representation covers the entire intestate share of the unworthy heir.]

Answer 242

A’s legitime of P250,000 will go to X by representation; the remaining P150,000 will go to B by accretion. Hence, B inherits a total of P750,000.

Answer 243

A’s legitime of P250,000 goes to X by representation. The remaining P150,000 will go to the intestate heirs (B and X, in representation of A) because accretion is NOT proper. Therefore, X gets a total of P325,000 (P250,000 as legitime, P75,000 as intestate heir); B gets a total of P675,000 (P250,000 as legitime, P350,000 by institution to the free portion, P75,000 as intestate heir).

Answer 244

Yes, since this was done before the judicial order of exclusion. C’s rights, as the nearest qualified intestate heir, would be to recover damages from B. [Note that insofar as Art. 1036 is concerned, it is the good or bad faith of the third person that is important, not the good or bad faith of the incapacitated heir.]. [Art. 1036 speaks of two kinds of actuations: (a) alienation of hereditary property (b) acts of administration.].

Answer 245

Alienations of “hereditary property” by the unworthy heir are of course VOID if made before the death of the decedent, since properly speaking, there is no “hereditary property” as yet. This is true, regardless of the good or bad faith of the third person.

Answer 246

Yes, he is allowed to do so, although he is incapacitated to inherit. A credit is not an inheritance. He can get the credit therefore not as an heir, but as a creditor.

Answer 247

The effect of disinheritance is not just deprivation of the legitime, but total exclusion of the disinherited heir from the inheritance. Thus, the disinherited heir forfeits: A. His legitime, B. His intestate portion, if any, and C. Any testamentary disposition made in a prior will of the disinheriting testator.

Answer 248

Unless it can be ascertained who are referred to, the disinheritance is not valid. Applying the rule of institution of heirs, we may say that evidence aliunde can even be allowed to determine the identity of the heirs concerned, but in no case may oral declarations of the testator be taken into account.

Answer 249

No, for the will has already been revoked.

Answer 250

The disinheritance being partial, it is not valid. Therefore, it is as if there is no disinheritance, and the child can still get at least his legitime.

Answer 251

A has not been validly disinherited, because the disinheritance was conditional, and for a cause that had not yet occurred at the time the will was executed. HOWEVER, A will not inherit, not because of disinheritance, but because he is incapacitated to succeed, by virtue of Art. 1032(2), which says that “The following are incapable of succeeding by reason of unworthiness … Any person who has been convicted of an attempt against the life of the testator …’’

Answer 252

Yes, for the disinheritance is not conditional; it is the revocation of the disinheritance that is.

Answer 253

Article 918 Instances wherein there is ineffective disinheritance: 1. Disinheritance without specification of the cause 2. For a cause which is not a true cause 3. For a cause not given in law It is believed that this Article also governs the effect of that kind of disinheritance where there is a subsequent reconciliation, and where therefore there is also an ineffective disinheritance.

Answer 254

``` Legitime = P 120,000 / 2 = P 60,000 Legitime of each child = P 60,000 / 3 = P 20,000 Distribution: C = P 20,000 (legitime) A = P 20,000 + 30,000 = P50,000 B = P 20,000 + 30,000 = P50,000 ``` ``` Same example with additional data that X is given a legacy of P 30,000 cash. C = P 20,000 A = P 20,000 + P 15,000 B = P 20,000 + P 15,000 X = P 30,000 ``` Remember, in the order of distribution, the devise or legacy shall be given ahead of the inheritance.

Answer 255

It must be observed that because of the omission of C in X’s will, there is now a preterition of a compulsory heir in the direct line in the testator’s will. According to the Civil Code, such preterition shall have the effect of annulling the institution of heirs entirely, but legacies and devises shall be valid insofar as they are not inofficious. Since there is a legacy of P20,000 given to A we must therefore, determine whether it is inofficious or not. The legitime of A, B and C is 1/2 of the entire estate, or P120,000, or P40,000 each. The legitime of W is the same as that of each of the legitimate children, or P40,000 also. The disposable free portion is therefore, P80,000. It is clear, that the legacy of P20,000 given to A is not inofficious because it can easily be contained in said disposable free portion. Therefore, it is valid. Consequently, it must be paid to A. That leaves a balance of P220,000 in the estate. Since the institution of heirs has been entirely annulled because of the preterition of C, the rules of intestacy shall now be applied with respect to this balance. It shall be divided equally among W, A, B, and C. The distribution shall, therefore, be as follows: A .................................. P55,000, as legal heir 20,000, as legatee B .................................. 55,000, as legal heir C .................................. 55,000, as legal heir W .................................. 55,000, as legal heir P240,000

Answer 256

It must be observed that the disinheritance of C is defective because the testator did not state the cause or ground of disinheritance. Consequently, according to the Civil Code, such imperfect disinheritance shall annul the institution of heirs insofar as it prejudices the legitime of C, but legacies and devises shall be valid insofar as they are not inofficious. Hence, we must determine the legitime of the survivors and the disposable free portion. The legitime of A, B and C is 1/2 of the entire estate, or P120,000, or P40,000 each. The legitime of W is the same as that of each of the legitimate children, or P40,000 also. The disposable free portion is, therefore, P80,000. It is clear that the legacy of P20,000 given to A is not inofficious because it can easily be contained in said disposable free portion. Therefore, it is valid. Consequently it must be paid to A. That leaves a balance of P60,000 in the disposable free portion. This balance of P60,000 shall be given to W, A and B in accordance with the testator’s will. That means P20,000 for each of them in addition to their legitime of P40,000. The distribution shall, therefore, be as follows: A .......................... P40,000, as compulsory heir 20,000, as voluntary heir 20,000, as legatee B .......................... 40,000, as compulsory heir C .......................... 20,000, as voluntary heir W .......................... 40,000, as compulsory heir 20,000, voluntary heir P240,000

Answer 257

According to Art. 918, the 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. In other words, the imperfect disinheritance shall result in the annulment of the institution of heirs insofar as the legitime of the compulsory heir who is disinherited is prejudiced, although the devises and legacies and other testamentary dispositions shall be valid, provided that the legitime of compulsory heirs is not impaired. This effect is, therefore, different from that of preterition where the annulment of the institution of heirs is total.

Answer 258

In the first place, since the only compulsory heirs surviving the testator are three legitimate children, B, C and D, therefore, 1/2 of the net remainder of the estate, or P30,000, is reserved as their legitime, while the other half, or P30,000, is free or disposable (Art. 888). In the second place, the disinheritance of D is imperfect because there is no specification of the cause; consequently, it shall result in the partial annulment of the institution of B and C as heirs insofar as D’s legitime of P10,000 is prejudiced (Art. 918). In the third 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 (Art. 918). Therefore, the estate shall be distributed as follows: B ............................... P10,000 as compulsory heir P10,000 as voluntary heir C .............................. P10,000 as compulsory heir P10,000 as voluntary heir D ............................... P10,000 as compulsory heir E ............................... P10,000 as legatee P60,000

Answer 259

B’s legitime is P150,000 (and he gets this) C gets .................. P375,000 D gets .................. P375,000 P900,000 In other words, the institution of heirs remains valid, but the shares of the instituted heirs will be decreased to give B his legitime. [NOTE: The rule here is different from that in preterition (Art. 854), because in such a case, the whole institution of heirs is annulled. Had there been preterition here, each of the children would receive P300,000 each.].

Answer 260

X gets only P500,000. (The legacy to him is reduced by P200,000 so as not to impair Y’s legitime. Y gets P500,000 [his legitime].). [NOTE: The rule regarding this 2nd effect is the same as in preterition. (Art. 854).]. [NOTE: If the free portion has not been disposed of, the ineffectively disinherited heir gets not only his legitime, but also his intestate share of the free portion. This is because he is an intestate heir also.

Answer 261

B gets P250,000 as legitime, and a half-share as intestate heir in the free portion of P500,000 (or P250,000). Thus, he gets a total of P500,000.]. [NOTE: A gets the same amount.] (NOTE ALSO that in the problem presented, the free portion had not been disposed of.).

Answer 262

(a) In both cases, the omitted heir and the imperfectly disinherited heir get at least their legitime. (b) In both cases, the legacies and devises remain valid insofar as the legitime has not been impaired. (c) Both refer to compulsory heirs.

Answer 263

Inheritance is different from succession because the latter is a mode of acquisition, by virtue of which the property, rights and obligations are transmitted.

Answer 264

The objective element of succession is what is known as the inheritance.

Answer 265

No. The children cannot be held personally liable, despite the substitution. The remedy of the plaintiff, the creditor, is to proceed against the estate of the deceased father.

Answer 266

Yes, for under Art. 776 the heirs inherit also the obligation of the deceased which are not extinguished by his death. NOTE: From still another angle, it is correct to say that money debts are NOT inherited at all, since only the balance is left for distribution among the heirs — thus it has been held — That while the debts of the deceased still remain unpaid, no residue may be divided among the heirs, legatees, and devisees. Indeed, the court may order the sale of sufficient property for the satisfaction of the debts and the heirs cannot question this. Such a step is necessary for the eventual partition of the estate. No residue may also be divided among the creditors of said heirs without fi rst settling the debts of the deceased. NOTE: A creditor of an HEIR (who is not the creditor of the DECEASED), who intervenes in the estate proceedings, cannot therefore ask the court to sell the properties which the HEIR-DEBTOR expects to receive. This is because the debts of the DECEASED himself must first be paid. Then and only then can we determine if there is a sufficient residue left for the HEIRS or for the HEIRS’ CREDITORS.

Answer 267

Neither A’s estate nor C is liable, for neither contracted the debt, nor may it be said that C is inheriting from B — for the truth is, C in the case presented, is inheriting only from A. Therefore, the creditor-stranger must shoulder the loss himself.

Answer 268

Donation Inter Vivos is the type of donation done out of love and liberty and within the donor's lifetime, and is also accepted by the donee within the said period. Like an inheritance, donation can also be done after a donor's passing, or Donation Mortis Causa.

Answer 269

3a. Fideicommissary - Art. 863 3b. Reserva Troncal - Art. 891 3c. subject of valid aleatory contracts

Answer 270

Art. 863 First heir – fiduciary ; Second heir – fideicommissary Fideicommissary substitution is an indirect substitution, where both heirs inherit one after the other Example of a fideicommissary substitution: The testator has 2 heirs A and B. A first succeeds to the property, first acquired or enjoyed the property. But the enjoyment of A is subject to the condition that he should preserve the property and later on, upon conditions given by the testator, either upon death or repudiation or upon certain period, A will now transmit the property to B, the second heir. Both A and B enjoy the property. Although A here merely enjoy uses of the property, he is like a usufructuary because he cannot own the property because of his obligation to transmit the property to B. Aside from enjoying the property, B also owns the property with all the rights pertaining to an owner. Because of the obligation of A to preserve and transmit, A: 1. cannot absolutely alienate the property inter vivos or mortis causa 2. cannot make a will providing that the properties is given to another person

Answer 271

1. A 1st heir who takes the property upon the testator’s death 2. A 2nd heir who takes the property subsequently from the fiduciary 3. The 2nd heir must be 1 degree from the first heir 4. Dual obligation imposed upon the 1st heir to: a) Preserve the property, and b) To transmit it after the lapse of the period to the fideicommissary heir. 5. Both heirs must be living and disqualified to succeed at the time of the testator’s death

Answer 272

1. The fideicommissary substitution must be expressly made 2. There must be a first heir (fiduciary, fiduciaro, heredero or trustee) 3. There must be a second heir (fideicommissary or fideicomisario or beneficiary or cestui que trust) 4. The second heir must not be beyond one degree from the first heir or the heir originally instituted 5. Both of the 1st heir and the 2nd heir must be living at the time of the death of the testator or at least conceived.

Answer 273

E and F are correct. It must be observed that B, as fideicommissary substitute or second heir, acquired a right to the subject property upon the death of the testator, X. This is ordained by Art. 866 of the Civil Code. When he died in 1975, this right passed to his children, E and F. This is also ordained by Art. 866 of the Civil Code. Therefore, E and F are now entitled to the subject property to the exclusion of all others.

Answer 274

The most important difference is that while in the simple substitution only ONE of the heirs inherits, in the fideicommissary, BOTH inherit.

Answer 275

(a) SIMPLE — T institutes A as heir, and appoints B as substitute if A does not inherit. (It is clear here that either A or B will inherit). (ALTERNATIVE SUCCESSION) (b) Fideicommissary Substitution — T institutes A as first heir. The will states that A should preserve and transmit later on the estate to B, who is A’s son. (It is clear here that upon T’s death, A will inherit. Later on, A will have to deliver the property to B who has also inherited as second heir. In other words, in the fideicommissary substitution, both heirs inherit). [NOTE: In the example above: 1) A — is the first heir, or fiduciary, or heredero, fiduciaro, or trustee. (He has the obligation of preserving and transmitting.) 2) B — is the second heir, or fideicommissary or fideicomisario or beneficiary or cestui que trust. (He eventually receives the property.) 3) T — is the testator or decedent or the fideicomitente. [NOTE ALSO that both the heirs inherit the property or right to it SIMULTANEOUSLY, although the enjoyment and possession are SUCCESSIVE.].

Answer 276

This is necessary for the prosperity and prestige of the family, bearing in mind the lack of intelligence, weakness of character, and vanity and prodigality of the descendants to whom the property may go. It has been contended that the power to appoint a fideicommissary substitute is a complement of the freedom of disposition which gives a powerful stimulus to the accumulation of wealth, and thus, maintains the tradition and social standing of the family.”

Answer 277

(a) The free circulation of property is somewhat curtailed, resulting in suspended ownershi (b) The property may be locked up or entailed in a family for a long period (c) It is opposed to the liberty of property and to the principle that the making of a will is a strictly personal act (d) The original purpose is feudalistic and is not in accord with the modern concept of ownership which puts the welfare of society over and above that of a particular family.

Answer 278

Yes. 891 Reserva Troncal

Answer 279

The reserve troncal is a special rule designed primarily to assure the return of the reservable property to the 3rd degree relatives belonging to the line from which the property originally came, and to avoid its being dissipated by the relatives of the inheriting ascendant [the reservista]. Also to avoid the danger that property existing for many years in a family’s patrimony might pass gratuitously to outsiders through the accident of marriage and untimely death.

Answer 280

1. First Transfer – by gratuitous title, from a person to his descendant, brother or sister. 2. Second Transfer – by operation of law, from the transferee in the first transfer [prepositus] to another ascendant [reservista]. It is this second transfer that creates the reserva. 3. Third Transfer – from the transferee in the second transfer [reservista] to the relatives within the 3rd degree of the Prepositus, coming from the line of the Origin. If there are only two transmissions, there is no reserva

Answer 281

1. That the property was acquired by a descendant [prepositus] from an ascendant or from a brother or sister [origin] by gratuitous title. 2. That said descendant [prepositus] died without an issue. 3. That the property is inherited by another ascendant [reservista] by operation of law; and 4. That there are relatives within the 3rd degree belonging to the line from which said property came [reservatarios].

Answer 282

What does it mean when a contract is aleatory? “Aleatory” means that something is dependent on an uncertain event, a chance occurrence. Aleatory is used primarily as a descriptive term for insurance contracts. An aleatory contract is a contract where performance of the promise is dependent on the occurrence of a fortuitous event.

Part 1 Flashcards

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