1

HEIRS
Art. 845. Every disposition in favor of an unknown person shall be void,
unless by some event or circumstance his identity becomes certain. However,
INSTITUTION OF HEIR. a disposition in favor of a definite class or group of persons shall be valid.

1. Can the testator give his entire free portion to a person he does not personally
The rules on institution of heir also apply to devisees and legatees
know? Yes.
The "unknown person" referred to in this article refers to one who cannot be
Art. 840. Institution of heir is an act by virtue of which a testator designates
identified and not to one whom the testator does not personally know. The basis
in his will the person or persons who are to succeed him in his property and
of the nullity is the inability to determine the intention of the testator.
transmissible rights and obligations.
E.g., "To someone who cares." -- Void.
Art. 841.
"To someone w/ ten eyes." -- Void, this refers to someone who
does not exist.
1. Even if there is no institution of an heir, the will is valid, but it is useless unless
it acknowledges an illegitimate child or disinherits a compulsory heir.
This designation is valid if the identity is not known at the time of making the will
but can be known in the future by circumstances. How? By establishing certain
2. If the institution does not cover the entire estate, the excess shall either go to
criteria at the proper time, e.g., First Filipino who wins a gold medal in the
the compulsory heirs or by intestacy. (Mixed succession.)
Olympics.
3. How much can the testator dispose of from his estate? He can dispose all,
2. Class designation is valid, 4 Blue 1995 class.
except when there are compulsory heirs. In such a case, he can only dispose of the
free portion.
Mass institution: see Articles 786, 848 (brothers and sisters), 849 (designation of
a person and his children) 959 (relatives), 1029 (prayers and pious works for the
4. General rule: If the will does not institute an heir, it need not be probated.
benefit of his soul), and 1030 (poor.)
Exception: Even if it does not institute an heir, if any of the following are
present:
Art. 846. Heirs instituted without designation of shares shall inherit in equal
a. When the will recognizes an illegitimate child;
parts.
b. When it disinherits a compulsory heir;
c. When it instituted an executor.
This is a presumption of equality. This supports the underlying principle of this
chapter w/c is respect for the wishes of the testator.
5. If the instituted heir should repudiate or be incapacitated to inherit, then legal
succession takes place.
Art. 847. When the testator institutes some heirs individually and others
collectively as when he says, "I designate as my heirs A and B, and the
Art. 842. One who has no compulsory heirs may dispose by will of all his
children of C," those collectively designated shall be considered as
estate or any part of it in favor of any person having capacity to succeed.
individually instituted, unless it clearly appears that the intention of the
One who has compulsory heirs may dispose of his estate provided he does not
testator was otherwise.
contravene the provisions of this Code with regard to the legitime of said
heirs.
Problem: The testator provides "I give 1/3 of my estate to A, B and C." C is a
X -------- spouse
class of people. How do you divide the estate?
/ | \
A: It is not to be interpreted as 1/3 to A, B and class C. Rather, the 1/3 of the
A B C
estate should be divided equally among A, B and the members of class C. Why?
Bec. the presumption is that the members of C were individually designated.
X has a spouse and 3 children.
But if the testator says "I give 1/3 of my estate to A, B and class C as a unit, then
Legitimes
1/3 will be divided equally among A, B and class C.
Children get 1/2 of the estate\
Spouse gets 1/6 of the estate/
Art. 848. If the testator should institute his brothers and sisters, and he has
some of full blood and others of half blood, the inheritance shall be
distributed equally, unless a different intention appears.
Art. 843 General rule: An heir must be designated by name and surname. Full blood means same parents; half blood means only one parent is the same.
This also applies to devisees and legatees.
General rule: Brothers and sisters, whether full or half blood, inherit in equal
If there are 2 or more people having the same name and surname, the testator must
shares.
indicate some identifying mark or circumstance to which he may be known,
Exceptions:
otherwise there may be a latent ambiguity.
(a) If the testator provides otherwise in the will
(b) If they inherit by intestacy. Ratio is 2:1 in favor of full blood brothers and
E.g., I institute my cousin A. But I have 3 cousins by the name of A. Unless I
sisters. (Art. 1006.)
give an identifying mark or circumstance as to w/c cousin A I refer to, there will
be a latent ambiguity.
4blue95 NOTE: The declaration of heirship must be made in a special proceeding,
not in an independent civil action. However, the Court held that recourse to
Exception: Even w/o giving the name, the identity of the heir can be
administration proceedings to determine who the heirs are is sanctioned only if
ascertained w/ sufficient certainty or clarity,
there is a good and compelling reason for such recourse. Hence, the Court had
e.g. the present Prefect of Ateneo High .
allowed exceptions to the rule requiring administration proceedings as when the
parties in the civil case already presented their evidence regarding the issue of
What is important is that the identity of the heir be known and not necessarily his
heirship, and the RTC had consequently rendered judgment upon the issues it
name.
defined during the pre-trial. (Rebusquillo v. Gualvez, G.R. No. 204029, 2014)

An Affidavit of Self-Adjudication is only proper when the affiant is the sole heir
Art. 844. An error in the name, surname, or circumstances o f the heir shall
of the decedent. (Rebusquillo v. Gualvez, G.R. No. 204029, 2014)
not vitiate the institution when it is possible, in any other manner, to know
with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity
of circumstances in such a way that, even with the use of other proof, the
person instituted cannot be identified, none of them shall be an heir.

1. Paragraph 1.-- Even though there may be an error in the name of the heir, the
error is immaterial if his identity can be known in any other manner.

2. Paragraph 2.-- See the rules on latent ambiguity.

First: Use extrinsic evidence except the oral declarations of the testator as to his
intentions to cure the ambiguity.
Second: If ambiguity still exists, none of them will inherit.
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Art. 849. When the testator calls to the succession a person and his children, Art. 852. If it was the intention of the testator that the instituted heirs should
they are all deemed to have been instituted simultaneously and not become sole heirs to the whole estate, or the whole free portion, as the case
successively. may be, and each of them has been instituted to an aliquot part of the
This article is a species of Art. 847. inheritance and their aliquot parts together do not cover the whole
Successively refers to fideicommisary. inheritance, or the whole free portion, each part shall be increased
proportionally.

Art. 850. The statement of a false cause for the institution of an heir shall be This article speaks of the testator's intention to give the entire free portion, or the
considered as not written, unless it appears from the will that the testator entire inheritance, as the case may be, but he made a mistake in the addition of the
would not have made such institution if he had known the falsity of such different proportions.
cause.
Elements:
General rule: Even if the cause if false, institution is effective. Why? Bec.
cause of the institution is the liberality of the testator and not the cause 1. Several heirs;
stated. 2. Indicates his intention to give his entire estate to this heirs
Q: "A is the tallest in the class. I give him 1/2 of my estate." If A is not the a. If no compulsory heirs, whole estate
tallest, is the institution ineffective? b. If w/ compulsory heirs, whole free portion
A: No. Follow the general rule bec. the real cause was not the height but the 3. Indicates portions he wants to give to each
liberality of the testator. 4. Total of portions is less than whole estate or free portion, as the case may be.

Austria v. Reyes.-- In the case, the oppossitor sought to nullify the E.g., Testator has no compulsory heirs. He indicates in the will that his intention
institution of the adopted children as heirs bec. it was found out that the to give his entire estate to his heirs. He gives 1/4 to A, 1/6 to B, 1/3 to C. The
adoption did not comply w/ the law. The SC held that the institution was estate is worth P120,000.
valid. For it to be invalid, and be an exception to the general rule, 3
requisites must concur: AP30,000
1. Cause for the institution must be stated in the will; B 20,000
2. Cause must be shown to be false; C 40,000
3. It must appear on the face of the will that the testator would not have P90,000
made such institution if he had known the falsity of the cause.
What do you do with the remaining P30,000?
The wishes of the testator must be respected.
In the case, the third requisite was absent. As such, the exception was not 1. Get the least common denominator-- 12
applicable and the general rule would apply. A= 3/12, B= 2/12, C= 4/12
If there is doubt as to whether there is a valid institution bec. of the false
cause, resolve it in favor of validity. 2. Get the ratio of the shares w/ each other.
A (3) : B (2) : C (4) - 3 + 2 + 4 = 9

3. Multiply the remainder by the share of each heir w/ respect to the ratio in
number 2.
For A, 3/9 x 30,000 = 10,000
For B, 2/9 x 30,000 = 6,666.67
Art. 851. If the testator has instituted only one heir, and the institution is For C, 4/9 x 30,000 = 13,333.33
limited to an aliquot part of the inheritance, legal succession takes place with
respect to the remainder of the estate. 4. Add the result to what they originally received and the sum will be their
The same rule applies, if the testator has instituted several heirs each being complete inheritance.
limited to an aliquot part, and all the parts do not cover the whole For A, 30,000 + 10,000 = 40,000
inheritance. For B, 20,000+ 6,666.67 = 26,666.67
For C, 40,000 + 13,333.33 = 53,333.33
The principle enunciated here has already been provided in Art. 841.
Assuming in par. 1
a. The testator has no compulsory heirs -- part of the whole estate not
disposed of by will goes by intestacy. 5. Add your figures in number 4 to make sure that it equals to the value of the
E.g., No compulsory heirs and the testator says "I give 1/3 of my estate to entire estate. (To make sure that you did not make a mistake.)
X." 1/3 will go to X and the 2/3 will go by intestacy.
40,000
b. Testator has compulsory heirs-- part of the free portion not disposed of + 26,666,67
by will goes by intestacy. + 53,333.33
E.g., Two legitimate children and testator says "I give 1/4 of my estate to = 120,000
X." 1/2 will go to the 2 children, 1/4 will go to X, and 1/4 will go by
intestacy. NOTE: 6. If you want to get the inheritance of each right away, multiply the ratio
in number 3 with the value of the whole estate.
The same applies when a vacancy occurs. For A, 3/9 x 120,000 = 40,000
For B, 2/9 x 120,000 = 26,666.67
For C, 4/9 x 120,000 = 53,333.33

You get the same results but faster.

Art. 853. If each of the instituted heirs has been given an aliquot part of the
inheritance, and the parts together exceed the whole inheritance, or the whole
free portion, as the case may be, each part shall be reduced proportionally.
The same principle as in Art. 852, only this time you decrease.

If the testator makes 3 wills.

Will 1-- "I give 40% of my estate to A."
Will 2-- "I give 40% of my estate to B."
Will 3-- "I give 40% of my estate to C."

How will the estate by divided? There are two answers.

1. 1/3 will go to each. Apply Art. 853.
2. C gets 40%, B gets 30%, and A gets 30%. Assume the third will is
incompatible to the first 2.
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PRETERITION WHO CAN BE PRETERITED?

Art. 854. The preterition or omission of one, some, or all of the 1. Legitimate children-- Yes.
compulsory heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the 2. Illegitimate children-- Yes. The law makes no distinction.
testator, shall annul the institution of heir; but the devisees and
legacies shall be valid insofar as they are not inofficious. 3. Parents, whether legitimate or illegitimate.-- Yes.
If the omitted compulsory heirs should die before the testator,
the institution shall be effectual, without prejudice to the right
to representation. Nuguid v. Nuguid.-- In the case, Rosa died having 6 brothers and sisters and
her parents. However, she instituted one of her sisters as her universal heir.
The parents opposed the probate claiming they were preterited. The SC held
Preterition.-- "praeter" means "to go beyond" -- not enough to that the parents were preterited. As such, the institution of the sister as
know the meaning. universal heir is void. The estate will be distributed by intestacy. The SC
further stated that just bec. you are an heir, but not a compulsory heir, it does
Preterition occurs if the heir receives nothing from the inheritance not mean that you will receive anything. If compulsory heirs in the direct
line are preterited, and the free portion had already been devised to other
by way of testamentary disposition, devise, legacy, intestacy, or people, the annulment of the institution of heir will in effect anull your
donation inter vivos. institution. Also, when the law says devise or legacy, this is used in its
ordinary sense. The claim of the sister that her institution as a universal heir
Clarification: is equivalent to a devise is untenable. If such were accepted, it would render
Art. 854 useless.
1. "Whether living at the time of the execution of the will or born
after the death of the testator." This does not cover all the
4. Grandparents.-- Yes.
possibilities. What about those born after the execution of the will
but before the death of the testator? Art. 854 also covers them, just
5. Spouse.-- No.
an oversight.
2. Extends protection only to "compulsory heirs in the direct line."
Is this redundant? Aren't compulsory heirs in the direct line? No. 6. Adopted child.-- Yes.
Spouses are compulsory heirs not in the direct line.
So what is the remedy of the wife who has been omitted? Demand
her legitime. Acain v. Acain.-- In the case, Acain left his estate to his brothers, completely
Compulsory heirs in the direct line cover only ascendants and omitting his wife and legally adopted daughter. As such, the two opposed
the probate of the will claiming they were preterited. The SC held that the
descendants. adopted child was preterited but not the wife. A wife is not a compulsory
heir in the direct line so she cannot be preterited. With respect to the adopted
child, it is different. Under Art. 39 of PD 603, adoption gives to the adopted
person the same rights and duties as if he were a legitimate child of the
adopter and makes the adopted person a legal heir of the adopter. The SC
further stated that since there were no devises or legacies, and a compulsory
heir was preterited, the effect is, as if nothing was written in the will. The
Who is a person preterited? whole estate will be distributed by intestacy.

Manresa.-- "Complete omission from the will" -- Wrong! Why?

It presupposes that if mentioned in the will, then the heir is not
preterited. However, whether you are mentioned in the will or not EFFECT OF PRETERITION.
has no effect on the preterition.
"Annul the institution of heir but devises and legacies shall be valid insofar
as they are not inofficious." -- Abrogate, set aside, eliminate, cancel.
Illustrations:
(1) I have a son, A. The will states "I give 1/2 to B." A is not 1. Effect of preterition (of parents) when there are no devises or
preterited bec. he gets the other half. legacies (Nuguid case)-- whole will is considered inexistent.
(2) I have a son, A. The will states "I give 1/3 to B and 1/3 to C."
A is not preterited bec. he gets the other 1/3. His legitime, 2. If there are devises or legacies.-- Set aside only the institution of
however, is impaired. heirs but not the institution of devisees and legatees. If the devise and
(3) I have a son, A. The will states "I give 1/2 to B, 1/2 to B, and legacy exceed the free portion, decrease the devise and legacy.
to A, all my love." A, even if mentioned in the will, was
preterited. Solano v. CA.-- This case made a wrong decision. It made the effect of
preterition the reduction of the share of the instituted heir rather than
annulling the whole institution of heir.
Situations
a. Heir is mentioned but nothing is left to him-- Heir is preterited Acain v. IAC.-- This case restored the correct interpretation laid down in
if he receives nothing by intestacy. Nuguid that preterition annuls the institution of heirs.
b. Heir is instituted in the will but the part she is instituted in is
E.g., Testator has son, A. His will states "I give 1/2 of my estate to A and
less than her legitime.-- There is no preterition. P300,000 to N." The estate is worth P600,000. How much will each get? N
gets 300,000. A gets the other 300,000. M gets nothing.
Reyes v. Barreto-Datu.-- There is no preterition if the heir is given
testamentary disposition, even if it be less than her legitime. The
remedy of the heir is for the completion of her legitime pursuant to Criticism
Art. 906. 1. Why not extend the application to the wife?
2. Why distinguish between heir and devisee and legatee?
This is ONE of the cases where it is important to know the distinction
between heir, on the one hand, and devisee and legatee on the other.
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Art. 855. The share of a child or descendant omitted in a will must first be
taken from the part of the estate not disposed of by the will, if any; if that is
not sufficient, so much as may be necessary must be taken proportionally
from the shares of the other compulsory heirs.

This is not a case of preterition. This is a case of completion of legitime.

1. Is this right limited or restricted to a child or descendant? No. It also applies to

heirs similarly situated.
a. spouse
b. parents
c. ascendants.

2. Does this apply to preterition?

a. Yes.-- According to the Code Commission. Their intent was to make Art. 855
apply to preterition.
b. No.-- If you analyze the provision, it does not refer to preterition. It applies
when something is left to an heir but is less than his legitime.

(i) Incomplete legitime.-- "taken from part not disposed of by will" -- heir will
receive something by intestacy -- no preterition.

(ii) Preterition.-- If the whole estate is disposed of.-- Go to Art. 854.

3. Two errors

a. Why is it limited only to child or descendant? This (article) should be

applicable to any compulsory heir whose legitime is impaired or who receives less
than his legitime. (The latter) may institute an action to complete his legitime.

b. Where do you get the share to complete?

1. Vacant portion (undisposed)
2. If vacant portion is not enough-- "compulsory heirs."

WRONG. You do not reduce the shares of compulsory heirs but the shares of
testamentary heirs. If the compulsory heir gets more than his legitime, the excess
can be reduced. Why? As to the excess, he is considered a testamentary heir.

Illustration: A has 3 children, X, Y and Z. His will states "I give X, 1/3 of my
estate, A, 1/12 of my estate, and B, 1/2. The estate is worth 600,000.

X = 1/3 = 200,000 - excess 100,000

Z = 1/12 = 50,000 - lacks 50,000
B = 1/2 = 300,000
Y = 0 = 0 - lacks 100,000

Legitime - 300,000/ 3 = 100,000 each.

Lacks 150,000 (Z + Y)

1. Is Y preterited? No. There is 50,000 that he will get by intestacy. Y can

demand completion of his legitime under Art. 855. He can get 50,000 from the
undisposed portion. He just lacks 50,000. Where do you get the deficiency?

a. If we follow Art. 855, get from the compulsory heirs. In other words, get from
X and Z proportionately. The result is that Z will complain bec. now his legitime
would be incomplete.

b. Get the deficiency proportionally from testamentary heirs. Why? They are not
entitled to any share if it impairs the legitime of the compulsory heirs.

Total lack of legitimes -- 150,000.

1. Get the 50,000 undisposed of -- Lacking only 100,000.
2. Get proportionally from the shares of testamentary heirs.
Testamentary heirs: X = 100,000 - 25,000
B = 300,000 - 75,000
100,000

Art. 856. A voluntary heir who dies before the testator transmits nothing to
his heirs.
A compulsory heir who dies before the testator, a person incapacitated to
succeed, and one who renounces the inheritance, shall transmit no right to
his own heirs except in cases expressly provided for in this Code.
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SUBSTITUTION OF HEIRS. In substitution, the 2nd heir takes the place of the first heir. A kind of
subrogation.
As such, the general rule is: The second is subject to the same charges and
conditions as the first heir.
KINDS OF SUBSTITUTION:
1. SIMPLE OR COMMON (ART. 859.) Exceptions:
2. FIDEICOMMISSARY. (ART. 863.) 1. Testator has expressly provided the contrary.
2. Charges and obligations are personally applicable to the first heir.
4blue95: Brief and reciprocal are just variations and not kinds of substitutions. The article does not only cover charges and conditions but also the rights of the
You cannot have a purely reciprocal substitution. All substitutions are either first heir, subject to the same exceptions.
simple or fideicommissary.
Art. 861. If heirs instituted in unequal shares should be reciprocally
In the OCC, there were two others: substituted, the substitute shall acquire the share of the heir who dies,
1. Ejemplar.-- A substitution a father was allowed to make bec. his son was renounces, or is incapacitated, unless it clearly appears that the intention of
insane. This was a kind of fideicommissary. the testator was otherwise. If there are more than one substitute, they shall
2. Popular.-- A substitution a father made in behalf of a child who died before he have the same share in the substitution as in the institution.
reaches 18.
Reciprocal substitution. The heirs are substituted for each other based on either
simple or fideicommissary substitution. If both are disqualified, then no
substitution will take place and the estate will pass by intestacy.
Art. 857. Substitution is the appointment of another heir so that he may enter
into the inheritance in default of the heir originally instituted. Example of second sentence: "I institute A to 1/3, B to 1/6, and C to 1/2 of my
estate and by way of simple substitution, I institute them as substitutes of one
1. "In default." -- failure to inherit because of: another." If C predeceases the testator, how will his share be divided if the estate
(a) predecease, is worth P60,000?
(b) renunciation or A = 1/3 = P20,000
(c) incapacity. B = 1/6 = 10,000
C = 1/2 = 30,000
a. Is it a complete definition? No. It is incomplete bec. default covers or defines
only simple substitution and not fideicommissary substitution. How will the 30,000 be divided between A and B?
b. Complete definition.-- Substitution is the appointment of another heir so that 1. Get the LCD of the remaining heirs. In the example, it is 6.
he may enter into the inheritance either in default of the heir originally instituted 2. Get the ratio bet. the remaining heirs and the sum of the ratios.
or after. A = 2/6, B = 1/6. The ratio between A and B is 2 : 1. The sum of the ratios is 3.
Simple.-- Second heir enters after the default of the first 3. Two ways:
Fideicommissary.-- Second heir enters after the first. a. Divide the 30,000 by the sum of the ratios (3) and multiply the result by
the ratio bet. them of each heir.
2. Basis for substitution.-- It covers the free portion only. 30,000/ 3 = 10,000.
A = 2 x 10,000 = 20,000
Bec. it is possible that the testator may have a second preference. In relation to the B = 1 x 10,000 = 10,000
first heir instituted, the first is preferred over the substitute. But in default or after
the first, the testator would rather that the inheritance go to the substitute than by b. Multiply 30,000 by the ratio of each heir with respect to the total ratio.
intestacy.Allowing substitution is giving respect to the first and second preference A = 2/3 x 30,000 = 20,000;
of the testator.The power to make substitution is based on the power to make B = 1/3 x 30,000 = 10,000
testamentary dispositions. This is really a condition imposed on the institution of
heirs. 4. Add the result in number 3 to what they initially received.
A = 20,000 + 20,000 = 40,000; B = 10,000 + 10,000 = 20,000.
E.g., A has sons whom he does not want to get the free portion. He wants to give
it to B. But B may die before A. After B, A prefers C to get it. As bet. C and his Note: If you want another way to compute:
children, A would rather that C get it. As such, C is appointed by the testator as 1. Get the LCD between A and B. In this case 6.
B's substitute. A = 2/6, B = 1/6
Art. 859. The testator may designate one or more persons to substitute the 2. Get the ratio between A and B. In this case, 2 : 1, A = 2/3, B = 1/3
heir or heirs instituted in case such heir or heirs should die before him, or
should not wish, or should be incapacitated to accept the inheritance. 3. Multiply the original share of C by the ratio in 2.
A simple substitution, without a statement of the cases to which it refers, A = 2/3 x 1/2 = 2/6, B = 1/3 x 1/2 = 1/6
shall comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided. 4. Add the result in number 3 to their original shares.
A = 2/6 + 2/6 = 4/6, B = 1/6 + 1/6 = 2/6

5. Multiply the result in number 4 by the value of the estate.

(1) SIMPLE SUBSTITUTION. A = 4/6 x 60,000 = 40,000; B = 2/6 x 60,000 = 20,000.

1. Causes/ grounds for the second heir to inherit in place of the first. Art. 860. Two or more persons may be substituted for one; and one person
a. Predecease of the first heir for two or more heirs.
b. Renunciation of the first heir
c. Incapacity of the first heir 1. Brief or Compendious.-- One substitutes for two or more heirs or two or more
substitutes for one heir, e.g., "I institute A to 1/8 of my estate and as his substitute
2. Two ways of making a simple substitution: by way of simple substitution, I designate X and Y."
a. Enumerate all the cases.
E.g., "I institute A, in case A predeceases me, or renounces, or is incapacitated to 2. This is just a variation of either simple or fideicommissary.
succeed, then B will substitute him." E.g., simple-- look at the example above.
Fideicommissary-- "I institute A to 1/2 of my estate and impose upon him the
b. By just calling it. obligation to preserve and transmit the property upon his death to X and Y."
E.g., "I institute A, and by way of simple substitution, I institute B as substitute."
In such a case, all the three causes of substitution will apply unless the testator 3. Strictly or technically speaking, brief and compendious are not the same.
provides otherwise. Brief-- 2 or more for one heir; compendious -- one for two or more heirs.
Note, however, they are synonymous and may be used interchangeably.
Note: The testator may limit the operation of the 3 causes. He can just mention
what he wants to apply, e.g., "I institute A, and if he predeceases me, then B will 4. Problem: "I institute A, B and C to 1/3 each of my estate and in case they all
substitute him." In such a case, B will only substitute A if A dies before the die before me, I institute D as substitute by way of simple substitution." If A and
testator.However, if the cause is not covered by the causes given in this article, B predecease the testator, will D get their shares? No. The substitution will take
then the estate will pass by intestacy. effect only upon the death of all the three. However, if what the will stated was
"any or... all die before me," then D will get A and B's share
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(2) FIDEICOMMISSARY SUBSTITUTION Commentators disagrees w/ Tolentino that there can be no successive
fideicommissaries or several transmissions. If this is allowed, chaos will result if
the fideicommissaries die. You will not know who will get the property and that
FOUR ELEMENTS
the property may be tied up for centuries..

A fideicommissary substitution can never burden the legitime.

1. There must be a first heir or fiduciary.
In fact, no testamentary disposition can burden the legitime bec. legitime is
transmitted by operation of law upon the death of the testator.
For the substitution to operate, the first heir receives property, either upon the
death of the testator or upon the fulfillment of any suspensive condition imposed
by the will. As distinguished from a simple substitution where the second heir
Art. 865. Every fideicommissary substitution must be expressly made in order
receives property only upon default of the first heir. First heir does not receive the
that it may be valid.
property.
The fiduciary shall be obliged to deliver the inheritance to the second heir,
without other deductions than those which arise from legitimate expenses,
credits and improvements, save in the case where the testator has provided
otherwise.
2. An absolute obligation is imposed upon the fiduciary to preserve and to
There are 2 ways of making a fideicommissary substitution:
transmit to a second heir the property at a given time.
1. By naming it.-- "I institute A to 1/2 of my estate, and by way of
a. Essence of a fideicommissary substitution-- dual obligation.
fideicommissary substitution, I institute B as his substitute."
b. "Given time."-- Provided by the testator; if not, then it is understood that the
period is the lifetime of the fudiciary.
2. By imposing upon the fiduciary the obligation to preserve and transmit.-- "I
institute A to 1/2 of my estate and impose upon him the obligation to preserve and
In the case, the spouses executed reciprocal wills. It provided that the share
to transmit the same to B upon his return."
in the conjugal assets will pass to the surviving spouse and that the surviving
spouse can do whatever he or she wants with the inheritance, even sell it, and
if there is any residue from the inheritance from the other spouse upon the
Art. 866. The second heir shall acquire a right to the succession from the time
death of the surviving spouse, it shall pass to the brothers and sisters of the
of the testator's death, even though he should die before the fiduciary. The
spouse who first died. The wife died first. The husband did not liquidate the
right of the second heir shall pass to his heirs.
conjugal assets bec. he was the sole heir of his wife. Upon the husband's
death, it is now questioned whether there is any residue from the wife's estate
This relates to the fourth requisite of fideicommissary. At the time of the testator's
that could pass to her brothers and sisters. PCIB, (and the) administratrix of
death, right of the first and second heir become vested.
the husband claims that: (1) There was no fideicommissary substitution
bec. there was no obligation upon the husband to preserve and transmit the
prop. to the brothers and sisters of the wife as seen in his authority to sell the
property, and (2) since there was an invalid attempt to make a substitution,
Art. 867. The following shall not take effect:
then the testamentary disposition is void and there can be no transmission of
rights to the brothers and sisters. The SC agreed w/ contention no. 1 on the
(1) Fideicommissary substitutions which are not made in an express manner,
same ground. The second requisite was absent and there could be no
either by giving them this name, or imposing upon the fiduciary the absolute
ficeicommissary substitution. With regard to the second contention, the SC
obligation to deliver the property to a second heir;
disagreed. The SC said there was a simultaneous substitution. The
(2) Provisions which contain a perpetual prohibition to alienate, and even a
institution of the husband was subject to a resolutory condition while the
temporary one, beyond the limit fixed in article 863;
institution of the brothers and sisters was subject to a suspensive condition.
(3) Those which impose upon the heir the charge of paying to various persons
Both conditions are one and the same. It is the existence in the husband's
successively, beyond the limit prescribed in article 863, a certain income or
estate of assets he received from his wife at the time of his death. If there is,
pension;
the husband's right to the residue is extinguished upon his death while the
(4) Those which leave to a person the whole or part of the hereditary property
right of the brothers and sisters vests at the same time.
in order that he may apply or invest the same according to secret instructions
communicated to him by the testator.
c.Characterized the situation as a legacy or devise of the residue.
Reasons why they will not take effect:

1. Relate to Art. 865, par. 1. It will not take effect as a fideicommissary substitution but
3. There is a second heir who must be one degree from the first heir.
may take effect as something else.
a. "One generation." Does it refer to the degree of relationship or number of 2. This is not a fideicommissary but a prohibited institution.
substitution? It refers to the degree of relationship. See Palacios v. a. Perpetual prohibition will freeze the property w/c is against public policy.
Ramirez.However, fideicommissary substitutions are also limited to one b. Temporary prohibition is allowed but cannot go beyond the limit in Art. 863--
transmission. Upon the lapse of time for the first heir, he transmits the property to limit is the death of the fiduciary. Cannot prohibit alienation beyond the death of
the second heir. They cannot be any more fideicommissary substitution coming the fiduciary. When the property goes to the second heir, there is no more
from the same testator. In other words, there can only be one fideicommissary prohibition.
transmission such that after the first, there can be no second fideicommissary Commentators say that it refers to Art. 870 rather than Art. 863. They contend that
substitution. the limit is 20 yrs. In such a case, the contention is valid if you do not make it
applicable to substitutions.
Palacios v. Ramirez.-- In the case, 2/3 of the usufruct of the free portion was
Q: If you prohibit for 30 yrs., what will happen?
given to Wanda, w/ 2 other persons not related to her as her substitutes by way of
A: There are 2 answers.
simple and fideicommissary substitution. Her grandnephews object on the ground 1. The whole period is void.
that there could be no fideicommissary substitution bec. the substitutes were not 2. Only the first 20 years is valid.
w/in one degree of each other. The SC agreed w/ the nephews. It said, quoting
Tolentino, that one degree refers to one generation. As such, the fideicommissary 3. Attempt to circumvent one degree limitation of fideicommissary substitution.
can only be either a parent or child of the fiduciary. E.g., "I give 1/3 of my estate to X and impose upon him the obligation to give a
P5,000 pension to A and in A's death, to A's son." This is allowed. But if this is
extended to the son of the son of A, then it won't be allowed. The first and second
recipient must be w/in one degree. But it cannot extend beyond the second
recipient.
4. The first and second heir must both be living and qualified at the time of
the death of the testator. 4. Dummy provision. This is usually used as a means to circumvent some prohibition of
law.
Example, Prohibition of giving to paramour
a. From the moment of the death of the testator, the rights of the first and second A has a paramour X. A gets B as a dummy. Because of the prohibition of giving to
heir are vested. (look at Art. 866.) a paramour, they agree between themselves that A will leave to B a devise and
from its profits B will give X. So A pretends to name B as heir. But in reality,
b. Nature of right of first heir.-- Similar to usufruct.-- Possessory and enjoyment such institution is for the benefit of X.
rights w/o right to alienate. a. In such a case, the institution will not benefit X. Even if X shows a written
If fiduciary is able to register the property in his name, fideicommissary should agreement bet. A and B, it cannot be enforced bec. it is contrary to law.
annotate his claim on the land on the title to protect himself against any alienations b. As regards B, he can keep the inheritance even if he double-crosses A. A
in favor of innocent third parties. instituted B at his own risk that he may be double-crossed by B. Too bad for X.
 7

Art. 868The nullity of the fideicommissary substitution will not affect validity
of institution of the first heir.

E.g., "I hereby institute A to 1/3 of my estate under obligation to preserve and to
transmit the same to B upon his death."
a. If institution of B is invalid, what will happen to the institution of A? Valid.
Institution of A is valid w/o substitution.
b. If the institution of A is invalid, what will happen to the institution of B? The
law does not provide. Think about it.

Art. 869. A provision whereby the testator leaves to a person the whole or
part of the inheritance, and to another the usufruct, shall be valid. If he gives
the usufruct to various persons, not simultaneously, but successively, the
provisions of article 863 shall apply.

This is similar to Art. 867, par. 3

Example, "I give to A naked ownership, and to B the usufruct and upon B's death,
to his son C." This is valid. W/in the limit of Art. 863. If it goes to the son of the
son of B, then it is invalid.
Note: Just as there can be a substitution w/ regard to the usufruct, there can also
be a substitution w/ regard to the naked ownership.

Art. 870. The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void.
This has nothing to do w/ substitution. It refers to simple institution of heir,
devisee or legatee.
Q: Can it go beyond 20 yrs?
A: There are 2 answers.
1. No. The whole period is void.
2. No. But valid only for the first 20 years.
 8

CONDITIONAL TESTAMENTARY DISPOSITIONS 4. CONDITIONS.

AND TESTAMENTARY DISPOSITIONS WITH A TERM
A suspensive condition gives rise to the right if it happens. A resolutory
condition extinguishes the right if it happens.
A condition suspends but does not obligate while a mode obligates but does
not suspend.
1. GENERAL PROVISIONS.
Rules:
Art. 871. The institution of an heir may be made conditionally, or for a 1. In case of doubt between a mode and a condition, resolve in favor of
certain purpose or cause. mode.
2. In case of doubt whether a mode exists, resolve in favor of it being a
This gives the testator the right to make these dispositions. The article did request.
not include an institution with a term. This is an oversight.
2022 Bar Matter: a mode does not suspend the efficacy of a will and it is
Art. 872. The testator cannot impose any charge, condition or obligatory except if for benefit of person concerned, while a condition
substitution whatsoever upon the legitimes prescribed in this Code. suspends efficacy and is not obligatory.
Should he do so, the same shall be considered as not imposed.

General limitation: The testator cannot impair the legitime. Why? Bec. the Art. 883. When without fault of the heir, an institution referred to in
testamentary disposition is based on the power to dispose mortis causa. the preceding article cannot take effect in the exact manner stated by
Legitimes, on the other hand, are passed by operation of law.This is repeated the testator, it shall be complied with in a manner most analogous to
in Art. 904. and in conformity with his wishes.

A caucion muciana is a security to be put up to protect the right of the heirs

(who would succeed to the property) in case the condition, term or mode is
violated.
2. TERM.
Instances when it is needed:
Art. 878. A disposition with a suspensive term does not prevent the 1. Suspensive condition.-- Art. 885.
instituted heir from acquiring his rights and transmitting them to his 2. Negative potestative condition.-- Art. 879.
heirs even before the arrival of the term. 3. Mode.-- Art. 882, par. 2.

This is founded on the principle that the right of the heir instituted subject to
a term is vested at the time of the testator's death-- he will just wait for the
term to expire.
The heir must survive the testator.
If the heir dies after the testator but before the term expires, he transmits his
rights to his own heirs bec. of the vested right.
E.g., "I give P1M to X, five years after my death." KINDS OF CONDITIONS:
Compare this w/ conditional.-- Art. 1034, par. 3-- Qualification of heir--
The heir must be alive and qualified at the time of the testator's death and
when the condition happens. 1. IMPOSSIBLE CONDITIONS.

Art. 873. Impossible conditions and those contrary to law or good

customs shall be considered as not imposed and shall in no manner
Art. 885. The designation of the day or time when the effects of the prejudice the heir, even if the testator should otherwise provide.
institution of an heir shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the Impossible conditions include those w/c are illegal, against public order and
succession until the arrival of the period or its expiration. But in the public policy.
first case he shall not enter into possession of the property until after Effect: It nullifies the condition. The condition is deemed as not imposed.
having given sufficient security, with the intervention of the instituted The testamentary disposition becomes pure, absolute and unconditional.
heir. Compare with donations (Art. 727.) and onerous obligations (Art. 1183.)

What happens when the testator dies? Distinguish between: Art. 727. Illegal or impossible conditions in
1. Suspensive (ex die)-- give it to the intestate heirs for them to enjoy but in simple and remuneratory donations shall be
order to protect the right of the instituted heir, intestate heirs must put up a considered as not imposed.
bond (caucion muciana.)
Art. 1183. Impossible conditions, those
2. Resolutory (in diem.)-- Give it to the instituted heirs but when the term contrary to good customs or public policy and
arrives, he must give it to the intestate heirs. The instituted heir does not those prohibited by law shall annul the
have to file a bond. obligation which depends upon them. If the
obligation is divisible, that part thereof which is
not affected by the impossible or unlawful
condition shall be valid.
3. MODE.

Art. 882. The statement of the object of the institution, or the Nullifies the Condition Nullifies the Obligation
application of the property left by the testator, or the charge imposed by
him, shall not be considered as a condition unless it appears that such a. Testamentary dispositions a. Onerous obligations
was his intention. b. Donations.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for Why the difference? Testamentary dispositions and donations are acts of
compliance with the wishes of the testator and for the return of liberality. The moving factor is liberality. If you take away the impossible
anything he or they may receive, together with its fruits and interests, if condition, the moving factor still exists, the liberality. While in onerous
he or they should disregard this obligation. donations, the condition is an element of cause. If the condition is
impossible, there is a failure of cause. This results in a void obligation.
A mode is an obligation imposed upon the heir to do or to give something. E.g., "I sell you my car if you impregnate the great blue bear of Antartica
E.g., "I give 1/3 of me estate to A but impose upon him the obligation to pay and if you pay me P10,000." Since there is an impossible condition, there is
for my son's education." a failure of cause. Since there is no cause, then the obligation is void.
 9

2. CONDITION PROHIBITING MARRIAGE. 3. SUSPENSIVE CONDITIONS.

Art. 874. An absolute condition not to contract a first or subsequent Art. 876. Any purely potestative condition imposed upon an heir must be
marriage shall be considered as not written unless such condition has been fulfilled by him as soon as he learns of the testator's death.This rule shall not
imposed on the widow or widower by the deceased spouse, or by the latter's apply when the condition, already complied with, cannot be fulfilled again.
ascendants or descendants.
Nevertheless, the rights of usufruct, or an allowance or some personal Art. 877. If the condition is casual or mixed it shall be sufficient if it happen
prestation may be devised or bequeathed to any person for the time during or be fulfilled at any time before or after the death of the testator, unless he
which he or she should remain unmarried or in widowhood. has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was
Distinguish.-- executed and the testator was unaware thereof, it shall be deemed as
1. If the condition is on the first marriage.-- The condition is complied with.
considered as not imposed. If he had knowledge thereof, the condition shall be considered fulfilled only
E.g., "I give 1/3 of my estate to A if she does not get married." The when it is of such a nature that it can no longer exist or be complied with
condition is considered as not imposed. again.

2. If the condition is imposed on the second marriage.-- General Art. 879. If the potestative condition imposed upon the heir is negative, or
rule: The condition is deemed as not imposed. consists in not doing or not giving something, he shall comply by giving a
Exception: Valid if imposed by: security that he will not do or give that which has been prohibited by the
(a) spouse; testator, and that in case of contravention he will return whatever he may
(b) ascendants of spouse; have received, together with its fruits and interests.
(c) descendants of spouse.
Art. 883. xxx
Example: General rule: "I give 1/3 of my estate to Mr. A on the condition that If the person interested in the condition should prevent its fulfillment, without
if he should be widowed, he will not get married." The condition is deemed as not the fault of the heir, the condition shall be deemed to have been complied
imposed here. with.
Exception: "I give the entire free portion of my estate to my husband A on the
condition that if I predecease him, he will not get married." The condition is valid
in this case. THREE KINDS OF SUSPENSIVE CONDITIONS:

Other Situations: 1. Purely Potestative.

1. What about a condition to contract marriage? Valid bec. it is not prohibited
and by contrary implication. The fulfillment of the condition depends solely upon the will of the heir,
2. What about a condition to enter into religious life? Valid. devisee or legatee.
3. What about a condition to renounce a religion? Not valid. E.g., "I give my entire free portion to Erap should he shave his
moustache."
The second paragraph relaxes the rule to go around the prohibition of the first par.
E.g., "I give A a pension of P10,000 during the entire time she is single." This is a General rule: The condition must be fulfilled as soon as the heir learns of
valid condition. the testator's death.
Exception: If the condition has already been fulfilled and it cannot be
fulfilled again, the condition is deemed fulfilled.
Art. 875. Any disposition made upon the condition that the heir shall make
some provision in his will in favor of the testator or of any other person shall Constructive compliance is applicable.
be void.
E.g., "I give 1/3 of my estate to A provided he makes a will instituting me (or B) Rules for Constructive compliance.-- That when the heir, devisee or
as heir." The disposition is void. Why? legatee has done everything to comply w/ the condition but the
a. It is against public policy bec. it impairs the voluntariness of wills; condition still does not happen.
b. It is against revocability: If you can alter your will after receiving, then it is a
breach of good faith. But if the testator is not allowed to alter the will, the 1. Purely potestative.-- Applicable.
condition is against revocability. Either option is unacceptable. 2. Casual.-- Not applicable.
3. Mixed.--
Consider (the article) restrictively.-- Limit it to cases where the beneficiary is to a.By will –
make a will instituting the testator or a third person. (1) Person interested - applicable
(2) Person not interested - not applicable
b. By chance.-- Not applicable.
OTHER PROVISIONS.

Art. 880. If the heir be instituted under a suspensive condition or term, the 2. Casual.
estate shall be placed under administration until the condition is fulfilled, or The fulfillment of the condition depends solely on chance or on the will of
until it becomes certain that it cannot be fulfilled, or until the arrival of the a third person.
term. E.g., "I give X, 1/3 of my estate should Mayon erupt one year from now."
The same shall be done if the heir does not give the security required in the
preceding article. 3. Mixed.
The fulfillment of the condition depends partly on chance and partly on
If the suspensive condition is not fulfilled, place the estate under administration the will of the heir, devisee, or legatee.
until: E.g., "I give one million to A provided he sets up a foundation for the
1. The condition is fulfilled, in w/c case the estate should be given to the instituted victims of the next eruption of Mayon."
heir;
2. It becomes obvious that it cannot be fulfilled, in w/c case, the estate should be
given to the intestate heirs.
Rules for casual and mixed conditions:
E.g., "I give a car to A when he places first in the bar." Testator dies while A is
still taking law. The car is put under administration until: (1) A tops the bar, in General rule: The condition may be fulfilled any time, either before or after the
w/c case the car should be given to him; or (b) A dies while reviewing in w/c testator's death unless the testator provides otherwise.
case, the car should be given to the intestate heirs bec. the condition has become Why? It is not w/in the heir, devisee or legatee's control.
obviously impossible of being fulfilled.
Qualification: If condition is already fulfilled at the time of the execution.
Art. 881. The appointment of the administrator of the estate mentioned in
the preceding article, as well as the manner of the administration and the a. Testator is unaware-- The condition is deemed complied w/ or
rights and obligations of the administrator shall be governed by the Rules of fulfilled.
Court.
Art. 884. Conditions imposed by the testator upon the heirs shall be governed b. Testator is aware.--
by the rules established for conditional obligations in all matters not provided (1) If the condition can no longer be fulfilled again, it is deemed fulfilled;
for by this Section. (2) If the condition can still be fulfilled, fulfill it again.

Rules on conditional obligations will apply suppletorily. Articles 1179 to 1192.