Uribe Notes

Uribe Civil Law Review (Succession and Property)

Day 7: Succession Quiz A legatee is a person called to the succession e ither by the provision of a will or by operation of law. False. False. A legatee inherits by will and not by operation of law. The validity of a will depends upon the observance of the law in force at the time of death of the testator. False. Not absolutely true. Intrinsic validity is governed by the law at the time of death of the testator but formal requirements are governed by the laws at the time of execution of the will. Capacity to succeed is governed by the law of the nation of the decedent. True. True. Capacity to succeed is governed by decedent’s national law. This is by provision of Art. 1039 (not Art. 16 1). In order to make a will it is essential that the testator be of sound mind at the time of its probate. False. In most cases, the probate of a will is done post mortem. How could the testator be of sound mind if he is already dead? What is essential is that the testator be of sound mind at the time of execution of the will. Sound mind in testamentary succession means that the testator knew (1) the nature of his estate to be disposed of; (2) the proper subjects of his bounty; and (3) the character of the testamentary act. 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 to another or others either by his will or by operation of law. False. This is an incomplete definition. Death is required for the transmission to happen. 

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1

Art. 16 states that (1) the order of succession; (2) amount of hereditary rights; and (3) intrinsic validity of testamentary succession are governed by the national law of the decedent.

Legatees and devisees are persons to whom gifts of real and personal property are respectively given by virtue of a will. False. It is the other way around. 2 Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called legal heirs. False. Legitime is reserved for compulsory heirs. Every will must be acknowledged before a notary public by the testator and the witnesses, in the presence of each other. False. Acknowledgment does not have to be done at the same time. If the testator be deaf, or a deaf-mute, the will shall be read to him twice; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. False. For obvious reasons. It would be pointless to have someone read the will to him twice, thrice or even a hundred times. Deaf and deaf-mutes must personally read the will. If this is not possible, he shall designate two persons (who need not be one of the subscribing witnesses or the notary public) to read it and communicate to him, in some practicable manner, the contents thereof. The rule that the will must be read to him twice (once by a subscribing witness and again by the notary public) is applicable to blind testators. Full blood relationship is that existing between persons who have legitimate relations. False. relations. False. It is possible to have only a half blood relationship with a legitimate brother. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. A was one of the three witnesses in the execution of the will of X. In the will, X gave a car to A. Which of the following is

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LP , DR Azy’s Notes

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correct? (a) legacy is void (b) will is void (c) cannot be considered as a competent witness. A. Interested witnesses are not prohibited from being witnesses to a will but the devise or legacy, so far only as concerns him, his spouse, parent or child, or anyone claiming under any of them shall be void unless there are three other competent witnesses to the will. The rights to the succession are transmitted from the moment of the death of the decedent. What are its implications? o A will is an act mortis causa. causa. o In Bonilla, Bonilla, “The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the the testate or intestate intestate proceedings.” o In Uson, the NCC was not given retroactive effect so that the illegitimate children of the deceased may inherit from him. The Court held that, “There shall be retroactive effect only when the new rights do not prejudice any vested or acquired right of the same origin. The right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband and this is so because of the imperative provision of the law which commands that the rights to succession are transmitted from the moment of death. The new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute.” The intrinsic validity of testamentary dispositions shall be governed by the national law of the decedent. decedent. Art. 16 par. 2

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X, a citizen of France but a permanent resident of Canada, suffered a heart attack and died in Japan while attending a conference. He was survived by his wife, an American citizen, his parents, a sister and two children who are both Filipino citizens. He left properties in the Philippines and in France. He left a will which he executed in London. The capacity of his children to succeed shall be governed by what law? French law. Under Art. 1039, the national law of the testator governs capacity to succeed.

Recit Reserva minima is more consistent with the philosophy of socialization of ownership. 3 Succession is a mode of acquisition but not necessarily acquisition of ownership. E.g. what is transmitted only is the right of a usufructuary over a thing. Philippine laws on succession has a basis in property law (e.g. devises and legacees) as well as in the law on family relations (e.g. legitime). X, a resident of California, died with children A (legitimate) and B (illegitimate). Can B inherit from X? X? Depends. The problem does not mention the nationality of X. In succession, Art. 1039 provides that the national law of the decedent determines the capacity of heirs to succeed. Will was executed by a French national in the Philippines. Which law should the will have conformed to in order to be probated in the Philippines? Either Either French or Philippine law. Generally, probation only looks at the compliance of the execution of the will with respect to the formal requirements 

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3

Recall that in reserva troncal, the subject property must have been received by the reservista by operation of law. In reserva maxima, all of the properties which the descendant had previously acquired by gratuitious title from an ascendant, brother or sister must be considered as passing to the ascendant-reservista ascendant-reservista insofar as his legitime can contain. In reserva minima, subject property must be considered as passing to the ascendant- reservista partly by operation of law and partly by force of the descendant’s will. Azy’s Notes 2


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of the law. Under Philippine law, formal requirements of a will may follow the laws of any of the following: (1) laws of the place of nationality of the testator; (2) laws of the place of residence of the testator; (3) laws of the place of domicile of the testator; (4) laws of the place of execution of the will; or (5) laws of the Philippines. A Filipino executed will in Kuwait but not in accordance with the law Kuwait. May the will be probated in the Philippines? Depends. Said Filipino may execute his will according to the laws of his nationality (Philippines), laws of place of residence, or the NCC. (Art. 816 by analogy) A certain property was given by Y to Z. What law should govern in deciding the validity of this disposition? Capacity to succeed is governed by the law of the nation of the decedent. (Art. 1039) A will was executed abroad. Is there a need to probate said will in this country? Yes if there are properties in the Philippines that were disposed of through the will. If the will above has not yet been probated abroad, can it be probated in the Philippines? Yes. There is no law requiring probate abroad before it may be probated in the Philippines. However, there there is jurisprudence ruling on the matter. In Palaganas, the Court held that “ our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not as yet been probated and allowed in the countries of their execution.” What is the Doctrine of Processual Presumption? Foreign law, whenever applicable, should be proved as facts. Otherwise, it is to be presumed that it is the same as the law of the forum. Bellis case: Art. 17 is no longer an exception to Art. 16. Thus, even if the national law of the testator does not provide for legitimes, said national law must still prevail.

No Notes for Days 8 and 9

Day 10: Succession Recit Every will must be in writing and in a language or dialect known to the testator. Holographic will must be written, signed and dated entirely by the hand of the testator. Notarial wills must be/contain 4 : (1) Subscribed by the testators and at least three instrumental witnesses; (2) A ttested by at least three instrumental witnesses; (3) Marginal signatures on every page except the last by the testator and at least three instrumental witnesses 5 ; (4) Paginated with numbers correlatively in letters on the upper part6; (5) A ttestation clause containing facts certifying that the will has been executed before the witnesses in accordance with the formalities prescribed by law 7 ; and (6) A cknowledged before a notary public by the testator and witnesses8. 

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4

SAM-PAA That the marginal signatures be on the left margin is merely directory; Inadvertence of one of the witnesses in f ailing to sign every page should not prejudice the testator 6 What is mandatory is that the will be paginated 7 Facts that must be indicated: (1) Number of pages used in making the will (2) That the testator signed the will and every page thereof in the presence of the witnesses or if the testator did not sign it himself, that he caused some other person to write his name under his express direction and in the presence of the witnesses (3) That the witnesses signed the will and every page thereof in the presence of the testator and of each other 8 The notarial will remains valid even if the notary public failed to sign the will. What is required is that the will be acknowledged before the notary public. Note also that the acknowledgment need not be done on the same day as the execution of the will. Azy’s Notes 3 5

Uribe Civil Law Review (Succession and Property) 

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Objects of Formalities: (1) Close the door against bad faith and fraud; (2) Avoid substitution of wills; and (3) Guarantee the truth and authenticity of wills. The doctrine of substantial compliance may be applied if it does not run counter to these objectives. In re Enrique Lopez: When the attestation clause fails to indicate number of pages of will or the facts required to be indicated regarding signing the will, substantial compliance may be invoked if these facts can be ascertained without the need of presentation of evidence alliunde. Icasiano v Icasiano: One of the pages of the will was not signed. However, the Court said that this was mere inadvertence on the part of the witness and the testatrix should not be penalized for this. Garcia v Vasquez: Rules on blind testators apply to persons who are essentially blind (e.g. advanced stage of glaucoma) Notary public signed the will not in the presence of the testator and the witnesses. Does this invalidate the will? What if the Notary public failed to sign? Neither will affect the validity of the will. What is required is that the notary acknowledge the will, not sign it. Gonzales v CA: “Credible” as used in NCC 805 should not be given the same meaning it has under the Naturalization Law. The witnesses required under the latter law are character witnesses, while the witnesses under the former merely attest to the due execution of a will and affirm the formalities attendant thereto. To be a witness, what is necessary only is that he is qualified under Art. 820 of the NCC9 and not disqualified under Art. 821 of the NCC.10

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Note that the following may be credible witnesses but not competent to be a witness to a will: (1) below the age of 18; (2) blind, deaf or dumb; (3) not able to read and write; (4) not domiciled in the Phil. The following persons are neither credible nor competent: those who have been convicted of falsification of a document, perjury or false testimony. The law presumes credibility. Kalaw v Relova: Mere authentication of an insertion to a will will not suffice. The law expressly requires authentication by the full signature of testatrix. Roxas v De Jesus: When the law requires the will to be dated, the law means that the testator must indicate the day, month and year of execution. However, an exception is made under the doctrine of substantial compliance when there is no showing of bad faith, undue influence and pressure, and the authenticity of the will is established.

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Qualifications of Witnesses to Wills: (1) sound mind (2) at least 18 years old (3) Not blind, deaf or dumb (4) Able to read and write 10 Disqualifications of Witnesses to Wills:

(1) Not domiciled in the Philippines (2) Convicted of falsification of a document, perjury or false testimony Azy’s Notes

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Incorporation v Codicil v New Will

Incorporation Codicil New Will A document Adds to, explains or Makes an independent incorporated in a will to alters a provision in a disposition clarify the provisions previous will Document is Made after the Made after the incorporated at the execution of the execution of the time of execution. previous will. previous will. Testamentary A codicil may add or A new will may add or dispositions not annul testamentary annull testamentary allowed. dispositions, and dispositions, and republish or revoke republish or revoke previous wills. previous wills. Must be referred to in May be attested or May be attested or the will indicating the holographic. It does not holographic. It does not number of pages of the have to follow the form have to follow the form document incorporated. of the previous will. of the previous will. It must also be signed by the testator and the witnesses on each and every page, except if voluminous. Ex. Sketches, Ex. In previous will, Ex. The document Inventories, Books of testator bequeather a makes a testamentary accounts car to A. The legacy is disposition in favor of made more particular someone who was not by specifying which car included in the previous through a codicil. will. 

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In the incorporation of document by reference, do the witnesses referred to in Art. 827(1) have to be the same set of witnesses as in the will? Yes, precisely because they are incorporated in the same will to be attested, they are also executed at the same time. How are will republished? Depends on what the reason for nullity is. If it is void as to its form, it is necessary to republish by reproducing the testamentary dispositions in the previous will. If the nullity however is for other reasons, the will may be republished through a codicil which will refer to the previous will.

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11

There are three modes of revocation11. Bear this in mind. Even if the will was not destroyed, the will or certain provisions of the will may be revoked by implication of law (e.g. heir committed an act of unworthiness or became incapacitated to inherit). There need not be any reason for making revocations. However, if a cause is provided and the said cause happened to false or illegal, the revocation is null and void. Difference of the effects of an express and implied revocation: If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second does not revive the first. If the second will only impliedly revoked the first will, the first will is automatically revived with the revocation of the second will. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative because the heirs, legatees or devisees renounce or become incapacitated will not revive the first will. However, in Molo v Molo, the Court held that “under the Doctrine of Dependent Relative Revocation, where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. The finality of the allowance of a will has the following effects: (1) conclusive as to the formal validity of the will; (2)

Three Modes of Revocation (1) by operation of law (2) by a codicil or a new will (3) by physically destroying the will with intention to destroy the same **Examples of (1): Incapacity; Legal Separation; Preterition; Judicial suit against the debtor in a legacy of credit or remission Azy’s Notes 5


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not subject to collateral attack; and (3) conclusive to the whole world. Thus, the issue as to the voluntariness of its execution may not be raised anymore. In fact, a criminal action against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction is barred after the finality of the allowance of the will. In Rodelas, the Court held that unlike notarial wills, holographic wills may not be proved by testimonial evidence when lost or destroyed. The general rule is that the original of the holographic will must be presented during its probate. However, a photostatic copy may also be admitted since a comparison with the handwriting of the testator may still be made. In Codoy, the Court ruled that Art. 811 is mandatory. At least one witness who shall testify that the testamentary dispositions and the signature are in the handwriting of the testator. If, however, the will is contested, at least three such witnesses must be presented. In both cases, expert witnesses may be resorted to.

Day 11: Succession12 Recit Who may inherit from the adopted child? RJ’s position is that, because the legal ties between the adopted child and his biological parents are already severed and that, for purposes of the law, the adopted child shall be considered a legitimate child of his/her adopter/s, only the adopter/s should inherit from the adopted child. However, Professor Uribe believes otherwise and argues that it should be 50-50 Preterition is the omission in the will of one, some or all of his compulsory heirs in the direct line. Its effect is to annul the institution of heirs. However, devises and legacies remain valid insofar as they are not inofficious. Omission of the spouse in the will is not preterition because she is not a compulsory heir in the direct line. There is also no preterition if the compulsory heir received inheritance by way of (1) devise or legacy; (2) donation inter vivos; or (3) intestate succession. In all these cases, the heirs instituted are not annulled. The remedy of the affected heir/s is for the completion of their legitime. There is also no preterition when the compulsory heir omitted in the will is a disinherited compulsory heir. A disinherited heir may be deprived of his legitime. Can brothers and sisters be validly disinherited? Note that the law only provides grounds for disinheritance of ascendants, descendants and spouse. Yes, brothers and sisters may be disinherited. The law does not provide the grounds with respect to siblings which implies that disinheritance may be for any ground. Unlike the compulsory heirs, the law did not deem it necessary to limit the grouds for their disinheritance. 

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12

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Notes for 2 half of Day 11 only Azy’s Notes

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May a disinherited heir inherit more than his legitime such as if the free portion was given to disinherited heir by intestate succession? No. According to sir, to do so would be contrary to the intention of the testator to disinherit or deprive the heir of his legitime. What if the will containing a disinheritance of an heir on a ground which is one of those provided by law is declared void? Will the disinheritance be valid? Not necessarily. Consider the ground for disinheritance. Some of them may be an act of unworthiness which does not require that the same be written on the will. Incapacity is legal disinheritance or disinheritance by operation of law. 13 Disinheritance, on the other hand, must be in writing and conform to the requirements of Art. 918.

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13

Who are incapacitated to succeed? Art. 1027 (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 ascendants, 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. Art 1028 in relation to 739 (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.

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Incapacity under Art. 1027 (1) to (5) and under Art. 1028 refers only to testamentary dispositions. They may still inherit through intestacy. Incapacity based on unworthiness disqualifies a compulsory heir from succeeding even to his legitime. Only reconciliation is necessary to reverse disinheritance whereas it is necessary that there be something in writing to overcome incapacity through acts of unworthiness. If there is no will, reconciliation will bar the offended person from later on disinheriting the offending person. If disinheritance has been made, such disinheritance is set aside. If testator knew of the cause of the unworthiness at the time of making the will, the cause of unworthiness shall be without effect. If he should find out after the execution of the will, the testator may condone them in writing.

Art. 1032: Causes of unworthiness (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtues; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants; (3) 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 to be groundless; (4) 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; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fr aud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. Azy’s Notes 7


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14

If the ground for disinheritance also happens to be a ground for unworthiness14, reconciliation will have the effect of condonation if the decedent actually disinherited the unworthy heir. If no disinheritance was effected, a written pardon is still necessary. Why is there a need to still disinherit when the ground is already a ground for unworthiness? Filipinos easily forget. If it is written on the will, the executor will be reminded of the act of unworthiness. Will all cases involving loss of parental authority be a ground for the the disinheritance of said parent? No. The loss of parental authority may be due to emancipation or adoption. The wife had an illicit relationship with her ex-boyfriend. The husband filed for legal separation. However, husband died before the issuance of the decree of legal separation. Will the wife inherit from the husband? Not if the husband validly disinherited the wife. The ground for disinheritance only requires that the spouse has given cause for legal separation. It is not necessary that there be a final judgment granting the petition for legal separation. If, on the other hand, the petition for legal separation has already been granted by the court, a will disinheriting the guility spouse is no longer necessary. The guilty spouse becomes incapacitated to inherit by intestate succession by operation of law.

What grounds are common in disinheritance and unworthiness? Art. 1032 except (4), (7) and (8 ). With respect to the cause “attempt on the life of the testator, his or her spouse or any of his descendants or ascendants”, if a descendant is the one being disinherited, a finding of guilit by final judgment is necessary. For all other persons, a conviction of an attempt on the life is enough to disinherit as well as make a person unworthy to inherit.

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Legitimes and Intestate Succession15 Legitimate Child Surviving Spouse Legitimate Children Surviving Spouse Legitimate Child Illegitimate Children Surviving Spouse Legitimate Children Illegitimate Children Surviving Spouse Legitimate Children Illegitimate Children Illegitimate Children

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Amount Legitime ½ ¼ ½ same as 1 LC ½ ½ of 1 LCa ¼ ½ ½ of 1 LCa same as 1 LC ½ ½ of 1 LCa ⅓

of

Intestate Succession ½ ½ Equal shares for all heirs same as SS ½ of 1 LC same as 1 LC b same as SS ½ of LC same as LC Twice an IC ½ of 1 LC b ½

Legitimes and Intestate Succession a. The legitime of an illegitimate child is not necessarily ½ of a legitimate child if the estate is not enough. The illegitimate children will share amongst themselves whatever is left of the estate after deducting the legitimes of the legitimate children and of the surviving spouse. b. Similar to the preceding rule, ensure that the legitimes of the legitimate children and of the surviving spouse are not impaired. To illustrate, the value of the estate is P200K. There are 2 legitimate children and 5 illegitimate children. Following Art. 983 literally will give us P50K for each legitimate child and P25K for each illegitimate child. However, this would be more than the value of the estate. Thus, the share of the illegitimate children are adjusted to P20K each. c. Illegitimate parents are excluded by children of any class d. 1/3 share for the surviving spouse if (1) the marriage was celebrated in articulo mortis; (2) the other spouse dies within three months; (3) the spouse who dies is the person who was contemplating death at the time of the marriage; and (4) they have not lived together for five years. e. Share of a full-blood is twice the share of a half-blood f. Collateral Relatives  No distinction between half-blood and full-blood  Nearer excludes the remote No representation  th Up to the 5 degree only  g. State Personal property – city/municipality of residence; if non-resident, where it may  be found Real property – city/municipality where it may be found  Azy’s Notes 8

Uribe Civil Law Review (Succession and Property) Surviving Spouse Legitimate Parents Legitimate Parents Illegitimate Children Legitimate Parents Surviving Spouse Legitimate Parents Illegitimate Children Surviving Spouse Illegitimate Children Illegitimate Parentsc Illegitimate Parents Surviving Spouse Surviving Spouse Brothers and Sisters, Nephews and Niecese Brothers and Sisters, Nephews and Niecese Other collateral relatives f Stateg

½ ½ ¼ ¼ ½ or ⅓d None

½ Entire Estate ½ ½ ½ ½ ½ ¼ ¼ Entire Estate Entire Estate ½ ½ ½ ½

None

Entire Estate

None None

Entire Estate Entire Estate

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½ ½ ¼ ½ ¼ ½ ¼ ⅛

Limitations to Legitimes of Compulsory Heirs o Reserva Troncal – Its purpose is to prevent people outside the family to receive property, by chance or accident, property which otherwise would have remained with the said family. o Disinheritance – Art. 918 16 provides the requisites of a valid disinheritance. Art. 919-921 provides for the grounds for the disinheritance of compulsory heirs. The compulsory heir may be deprived of his legitime

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Requisites of a valid disinheritance: a. It must be done in a valid will; b. It must be express; c. There must be a true cause; d. The cause must be existing; e. It must be total and complete; f. The cause must be stated in the will; g. The heir disinherited must be identified; h. The will must not have been r evoked.

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as a consequence of the disinheritance. He, however, may still inherit through intestate succession. o Reserva Adoptiva – In Teotico v del Val, the Court held that “under our law, the relationship established by adoption is limited solely to the adopter and the adopted and does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law. Hence, no relationship is created between the adopted and the collaterals of the adopting parents. As a consequence, the adopted is an heir of the adopter but not of the relatives of the adopter.” Reserva Troncal o Transfer of the Properties (1) Ascendant, brother or sister who transfers subject property by gratuitous title to the Descendant of the Reservista (a.k.a. Mediate source) (2) Descendant of the Reservista (a.k.a. Prepositus) (3) Reservista who inherits from the Descendant by intestate succession (4) Relatives who are within the third degree and who belong to the line from which said property came (a.k.a. Reservatorios) o The three degrees is counted from the prepositus o It is not required that a reservatorio be alive at the time of death of the prepositus. What is important is that he is alive to inherit at the time of death of the reservista. o If there are no reservatorios at the time of death of the reservista, the property subject of reserva troncal forms part of the estate of the reservista o Apply the rules on intestate succession: Nearer excludes the more remote 

Azy’s Notes

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Representation in favor of the children of predeceased siblings (nephews and nieces) of the prepositus A full-blood is entitled to a share double that of a half-blood COLLATION PROBLEM : X died intestate in 1985 leaving 3 legitimate children (A, B and C) and 2 illegitimate children (D and E). He donated P30K to F, a friend, in 1970; to A, P40K in 1975, and to D P50K in 1980. He left an estate amounting to P100K with debts in the amount of P40K. o Who will inherit from the estate? What are their respective shares? (1) Deduct the debts of the estate from the Gross Estate to find the value of the Net Hereditary Estate P100K – P40K = P60K (2) Add the value of the properties donated 17 unless such donation is not subject to collation 18 to find 

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the value of the Distrubutable Estate; The Distributable Estate is the basis for the calculation of legitimes P60K + P120K = P180K (3) Determination of the Legitimes Legitimate children = P30K each Illegitimate child = P15K each (4) Determination of the Free Portion P180K – (P30K x 3) – (P15K x 2) = P60K (5) Charging If the donee is a compulsory heir, the donation is to be charged to his legitime unless the donor provided otherwise A – P30K to the legitime D – P15K to the legitime If the donation to the compulsory heir is greater than his or her legitime, charge the excess to the free portion A – P10K D – P35K If the donee is not a compulsory heir, the donation is to be charged to the freely disposable portion F – P30K In the problem above, it appears that there is P15K worth of inofficious donation. Who will suffer the reduction? Reduction of devises and legacies pro-rata. Reduce the donations. Follow the later-intime rule (Last in, First out) but be careful not to impair the legitime. In this case, the donation to D must be reduced by P15K. 

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Use values at the time of donation What donations are not subject to collation? Donations made by a person who does not have compulsory heirs. Collation is done so as not to impair the legitime. Here, there is no such legitime that may be impaired. When in a donation to a compulsory heir, the testator provided that said donation shall not be subject to collation.** When a donee who is also a compulsory heir repudiates the inheritance, those donations that he received will not be subject to collation.** Donations given by ascendants to the children of the compulsory heir in the descending line (e.g. Grandfather of A donated property to A. A’s grandfather died with A’s father as one of the surviving compulsory heirs. A’s father is not obliged to bring into collation the donated property) Property donated to the spouse of a child (but if the property was donated to the spouses jointly, the child’s share will be subject to collation) Expenses for support, education, medical attendance, apprenticeship, ordinary equipment or customary gifts. Expenses incurred by the parents in giving their children a career unless they impair the legitime If the legitime is impaired, the sum which the child would have spent if he had lived in the house of his parents are not included in the collation. Wedding gifts to ascendants that do not exceed 1/10 of the free portion

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**The general rule is that a donation to a compulsory heir is collated (imputed or charged) to his legitime. Azy’s Notes 10


What if the FP is not enough to provide for the legacies and devices? Art. 911 provides a rule. However, Art. 950 also provides for a pecking order. Apply Art. 950 if the scenario is purely among legatees and devisees. Otherwise, apply Art. 911. If a donation is void, it will not be a subject of collection. Instead it will be part of the gross estate. Principles Affecting the Freely Disposable Portion: (1) Institution of Heirs; (2) Substitution; and (3) Legacies and Devises May there be a valid institution of heir pertaining to the entire estate? Yes, if there are no compulsory heirs or the instituted heirs are also the compulsory heirs. May a will be valid even though there are no heirs instituted? Yes, there may be legacies and devises. The following are presumptions in the institution of heirs: (1) presumption of equality; (2) presumption of individuality; and (3) presumption of simultaneity. o If the instituted heirs are brothers but one is of the half-blood while the other is of the full-blood, the presumption is that their shares are equal. 19 (Presumption of equality) o “I hereby institute A, B and the 10 children of C as my heirs.” Interpret this that their share in the estate is to be divided into 12 shares. (Presumption of individuality) o In testatmentary succession, if a parent and his children are instituted, the parent and his children will inherit simultaneously. Rule on proximity does not apply. (Presumption of simultaneity) Kinds of Institution: (1) Simple (I hereby give my car to A (2) Conditional (I hereby give my car to A upo n A’s passing the bar exam)

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(3) Modal (I hereby give you a piece of land but with the obligation to deliver 10 cavans of rice to my spouse) If the condition happens, its effect will retroact to the date of the death of the testator. However, the heir must have capacity to succeed at the time of the happening of the suspensive condition. Generally, conditions not to marry are prohibited in testamentary dispositions. However, the prohibition does not apply when the condition is imposed on the surviving spouse by the deceased spouse or by the latter’s ascendants or descendants. If condition is impossible, condition is considered not written. This is the same rule in donations inter vivos. Contrast these two to impossible conditions in onerous obligations. Under Art. 1183, the obligation which depends upon the condition are annulled. In the first and second, it is the condition that is nullified. An heir subject to a suspensive term has vested rights over the inheritance. However, the inheritance is not demandable until the happening of the term. A mode does not suspend but obligates unlike a condition which does not obligate but suspends. For this reason, the law requires a caucion muciana or 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. To be construed as a mode, it must be a clear obligation and not just a wish on the part of the testator. The definition of substitution under 859 does not contemplate fideicommissary substitution. This is so because in a fideicommissary substitution both the original heir and the substitute inherit from the testator (hence the requirement that both must be living at the time of the death of the testator). But if you read 859, it presupposes that substitution only happens if the original heir should die,

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repudiate, or be incapacitated to accept the inheritance. This is not the case in a fideicommissary substitution. A simple substitution, without a statement of the cases to which it refers, shall comprise the three possible causes for substitution: (1) predecease; (2) repudiation; and (3) incapacity.20 In fideicommissary substitution, the 2 nd heir must be one degree away from the 1 st heir. They must both be living and qualified at the time of death of the testator. The 1 st heir has the obligation to preserve the property inherited and transmit the same to the heir either at a given time or upon his death. In the event that the 2 nd heir dies before the transmission, his successors may succeed by representation. This is because from the moment of death of the testator, the rights of the 1 st and 2 nd heirs are vested. 21 Capacity to succeed of the substitute would be in relation to the testator and not the heir to be substituted. X has two children A and B. His net estate is P1M. In his will, he instituted A and B as his sole heirs. However, there was a provision in the will obliging B to give to Y P25K per month for 1 year. How much will Y get? P25K x 12 months = P300K but this will impair B’s legitime. Therefore, Y may only receive a maximum of P250K so that B’s legitime of P250K will not be impaired. What are the rules with respect to legacies and devisees when they are bequeathed by the testator even though he did not own the same? o If testator did not know that he did not know it, legacy or devise is void. (Art. 930, vitiated by mistake) o If testator knew , Art. 931 applies whether or not there was an order to buy the devise or legacy in the will. It is to be presumed that the estate is

RIP Don’t confuse this with reserva troncal where the death of the reservatorios will result in the property going to the estate of the reservista

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ordered to do so to fulfill the obligation imposed by the testamentary disposition. What if the legacy or devise is already owned by the legatee or devisee at the time of execution of the will? This is an ineffective legacy or devise. What if the legacy or devise was acquired by the legatee or devisee after the execution of the will? Depends if the acquisition was gratuitous or onerous. If onerous, the legatee or devisee will be reimbursed. Who will reimburse the legatee or devisee in the problem above? If it is a sub-legacy or a mode (e.g. I will give to you ¼ of my estate if you give B a car), it is the heir who must make the reimbursement. Otherwise, it is the estate. Is there any situation where the reimbursement need not be made eventhough the legatee or devisee acquired after the execution the legacy or devise by gratuitous title? Yes, if the legatee or devisee acquired the same from the testator. What if the legacy or devise has been pledged or mortgaged? It is immaterial whether the pledge or mortgage of the thing was done before or after the execution of the will. The debt must be paid to release the thing from the debt or mortgage. What is a legacy of credit? It is a legacy wherein the testator bequeths to another a credit against a third person. E.g. “I give to B all the debts A owes me.” What is a legacy of remission? It is a testamentary disposition of a debt in favor of the debtor. E.g. “I give to A everything as legacy his debt to me.” Note however that the legacy of credit or remission will only cover those debts incurred prior to the execution of the will. Thus, even if the will states that testator will pay his credit of P1M to the legatee, if at the time of death only P50K remains of the P1M loan, only the P50K will be paid out as legacy.

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Moreover, a judicial suit against the debtor in a legacy of credit or remission essentially revokes the legacy of credit or remission. What are the rules with respect to generic devises and indeterminate devises? A generic legacy is valid eventhough there is nothing of the same kind which exists in the estate. The estate will have to buy it. The rule is different with respect to indeterminate devises. There must exist immovables of the same kind for the devise to be valid. A legacy for education lasts until the legatee is of age in order that the legatee may finish his professional, vocational or general course. A legacy for support lasts for the lifetime of the legatee. The amount, if not indicated by the testator, will be presumed to be the same as the amount given by the testator to the legatee when the testator was still living. Circumstances such as the social standing and the needs of the legatee as well as the value of the estate will also be taken into consideration in the determination of the amount of the legacy of support. The 2:1 Proportion Rule with respect to half-bloods and full-bloods does not apply (1) in testamentary succession; (2) in reserva troncal; and (3) when collateral relatives inherit by intestate succession.

Day 12: Succession and Property Relations22 Lecture on Succession What is the proximity rule? The relative nearest in degree excludes the more distant ones. Each generation forms a degree. What are the exceptions to the proximity rule? 1. Right of representation 2. Direct line preferred over collateral line 3. Nephews and nieces exclude uncles and aunts even though they may be of the same degree 4. Full blood preferred over half-blood 5. Legitimate children is preferred over illegitimate children 6. Iron curtain bar Whether in testamentary or intestate succession, there is never a right of representation in the ascending line; only in the descending line. There is no right of representation in the collateral line except in intestate succession with respect to the children of brothers and sisters. In the right of representation, the person representing inherits directly from the deceased and not from the person being represented. This is most relevant in cases of incapacity (e.g. grandson committed an act of unworthiness against his father, grandson can still inherit from his grandfather through right of representation.) Exceptions to the equal distribution principle 1. Right of representation 2. In the ascending line – only equal between maternal and paternal lines Accretion takes place only if there is no substitution (testate) or no representation (testate and intestate). 

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Notes for 2 half of Day 12 only Azy’s Notes

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Accretion is the presumed will but a substitution is an express will. Between a presumed will and an express will, the one expressed prevails. In testamentary succession, accretion takes place if there are two or more persons called to the same inheritance, the share of the heir who dies, renounces or becomes incapacitated accrue to the other heirs. (e.g. Car is bequethed to A and B. A dies. The car goes to B alone.) In testamentary succession, follow this order: o If the institution of heirs fails (predecease, incapacitated or renounce), substitution occurs. o If there is no substitution, the right of representation applies in the direct descending line to the legitime if the vacancy is caused by predecease, incapacity or disinheritance. o The right of accretion applies to the free portion if two or more persons are called to the same inheritance and one or some (but not all) of the said heirs predecease, renounce or be incapacitated. In intestacy, accretion always takes place when inheritance is renounced because there is no representation in repudiation. There is no representation in repudiation. This is regardless of whether the inheritance repudiated was by will or by law. There is also no right of representation in favor of an illegitimate child with respect to his legitimate parents. On the other hand, an illegitimate child of an illegitimate parent may represent such illegetimate parent in their grandparent’s estate. A disinherited heir may be representated when he is a compulsory heir but only up to the value of his legitime. A disinherited heir may not be represented under any other circumstance.

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A disinherited heir may also inherit through intestate succession but only to the value of his legitime. Should the part repudiated be the legitime, the other co-heirs shall succeed to in their own right, and not by the right of accretion. Although the effect is tially the same. Bars to accretion: (1) express provision; (2) substitution; (3) representation; (4) when the shares have been designated and such sharing are not equal 23 Partition may be done (1) thru a will; (2) by asking a third person to take charge of the partition; or (3) by agreement among all the heirs through an extrajudicial settlement when there is no will and no creditors. Before the partition of the land, one of the heirs sold his share. May the other heirs redeem the property? Yes, within 30 days from written notice or from actual notice.

Quiz An action filed by a co-owner against another will not prosper. False A co-owner may f ile an action against another co-owner. E.g. Action for partition; Action for ejectment when the co-owner takes exclusive possession and asserts exclusive ownership over the co-owned property (De Guia) Possession constitutes the foundation of a prescriptive right. False. The possession should be adverse po ssession. In BogoMedellin Milling, the Court held that “ for possession to constitute the foundation of a prescriptive right, it must be under claim of title or adverse. It must be coupled with the element of hostility towards the true owner.” An easement is non-apparent if it is used at intervals and depends on the act of man, like the easement of right of 

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the sharing, by will, is not equal, the portion of the person who predecease or who is incapacitated will not go to the other testate heir, but will be distributed to the legal heirs instead. Azy’s Notes 14


way. False. An easement is discontinuous if it is used at intervals and deoends on the act of man (e.g. road v. drainage). It is the presence of physical signs indicating their existence that makes an easement apparent (asphalt road v. unpaved road). The determination of whether an easement is continuous or discontinuous or whether it is apparent or non-apparent is relevant in determining whether the easement may be acquired by prescription. Only continuous and apparent easements may be acquired by prescription of 10 years. All other easements are acquired by virtue of a title. An easement or servitude is a personal right, constituted on the corporeal movable property of another, by virtue of which the owner has to refrain from doing, or must allow someoene to do something on his property, for the benefit of another thing or person. False. An easement must be constituted on an immovable property. Donations of an immovable property must be in writing to be valid. False. The law further requires that donation be on a public instrument specifying therein the property donated and the value of the charges, if any. 24 The non-registration of a deed of donation does not affect its validity. True. The registration of a donation does not affect its validity. However, it must be registered in order to affect third persons. The lease of a property for more than one year is considered not merely an act of administration but an act of strict dominion or ownerhsip. False. This should be lease of real property.

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If movable property is donated Oral donation with simultaneous delivery of the thing to be donated or the document representing the right donated Both donation and acceptance must be in writing if the value of the movable exceeds P5K 

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In case of double sale of real property which is registered under the Torrens system, mere registration is not enough to give such registrar a better right over the property. True. The registration should have been done in good faith. A builder in good faith cannot be compelled to pay rentals during the period of retention nor be disturbed in his possession by ordering him to vacate. True. In Nuguid, the Court held that the right of retention is considered as one of the measures devised by the law for the protection of builders in good faith. Its object is to guarantee full and prompt reimbursement of necessary and useful expenses The owner of the land has the right to offset or compensate the necessary and useful expenses incurred by the builderpossesor in good faith with the fruits received by the latter. False. See Nuguid case cited above. Builder possessor in good faith has to be reimbursed. Legal easements are those established by the will of the owners. False. Legal easements are established by law. Voluntary easements are those established by the will of the owners. A person, as a buyer or mortgagee, is not required to go beyond what appears on the face of the covering title itself. False. When the OCT/TCT is in the name of the seller when the land is sold, the buyer has a right to rely on what appears on the face of the document. If there is nothing that indicates any irregularity , he is not expected to make further investigations or inquiries. However, the rule above does not apply to banks since a higher degree of diligence is expected of them. Where the party has knowledge of a prior existing interest which is unregistered at the time he acquired a right to the same land, his knowledge of that prior unregistered interest has the efect of registration as to him. True. Ordinary acquisitive prescription requires possession of things in good faith and with just title for a period of thirty years. FALSE. Only ten years is required for acquisitive Azy’s Notes

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prescription if the possession is in good faith and with just title. It is in extraordinary acquisitive prescription that thirty years of open, continuous, exclusive and notorious possession is required. The statutory period of prescription starts when a person who has neither title nor good faith, secures tax declaration in his name and may, therefore, be said to have adversely claimed the ownership of the lot. False. The statement is only accurate if the person who acquired the tax declaration is in actual possession of the land. Ownership is one of the attributes of possession. False. It’s the other way around. Those who occupy the land of another at the latter’s tolerance without any contract between them, are necessarily bound by an implied promise that the occupants will vacate the property upon demand. True. A co-owner of an undivided parcel of land is an owner of the whole, and over the whole he exercises the right of dominion. True. There is still co-ownership even if the different portions owned by different people have already been concretely determined and separately identified if they have not yet been technically described. False. There is no co-ownership if the property has been partitioned. An action to demand partition is imprescriptible and not subject to laches. True. A co-owner may demand partition anytime except (1) if there is an agreeement to keep the thing undivided 25 ; (1) if the donor or testator prohibited partition26; or (3) if it is prohibited by law.

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(1) Is the platform movable or immovable property? Immovable under par. 9 of Art. 415 if it can be shown that it was intended to remain fixed on the sea. (2) Are the equipment and living quarters movable or immovable property? Immovable under par. 5 of Art. 415 if it can be shown that they are being used for the industry, and that they were permanently attached to the immovable property by the owner of said immovable property. (3) Are the trees, plants and flowers immovable or immovable property? Yes. Under par. 2 of Art. 415, trees, plants and growing fruits are immovable while they are attached to another immovable property. Flowers, although not expressly included in the enumeration, can fall under growing fruits.

Sample Bar Exam Questions 

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said agreement cannot indicate more than 10 years but this period may be extended by a new agreement 26 the prohibition cannot be for more than 30 years

Manila Petroleum Co. owned and operated a petroleum operation facility off the coast of Manila. The facility was located on a floating platform made of wood and metal, upon which was permanently attached the heavy equipment of the petroleum operations and living quarters of the crew. The floating platform likewise contained a garden area, where trees, plants and flowers were planted. The platform was tethered to a ship, the MV 101, which was anchored to seabed.

Salvador, a timber concessionare, built on his lot a warehouse where he processes and stores his timber for shipment. Adjoing the warehouse is a furniture factory owned by NARRAMIX of which Salvador is a majority Azy’s Notes

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stockholder. NARRAMIX leased space in the warehouse where it placed its furniture-making machinery. (1) How would you classify the furniture-making machinery as property under the Civil Code? Movable. It was not attached to the land by the owner of the land but only by the lessee. Except in cases where the Court applies the doctrine of piercing the veil of corporate fiction, Salvador, although a majority stockholder of Narramix, is a separate entity from the corporation. (2) Suppose the lease contract between Salvador and NARRAMIX stipulates that at the end of the lease the machinery shall become the property of the lessor, will your answer be the same? My answer would be different. In Davao Saw Mill, the Court ruled that the lessee was acting as an agent of the lessor of the premises. Therefore, the machinery attached by lessee Narramix was, by fiction of law, attached by owner Salvador. 

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The following things are property of public dominion, except: (1) Ports and bridges constructed by the State – Art. 420 (2) Vehicles and weapons of the AFP – for public service (3) Rivers – Art. 420 (4) Lands reclaimed by the state from the sea – ANSWER; This is patrimonial property of the State that may be alienated. Which of the following statements is worng?

(1) Patrimonial property of the state, when no longer intended for public use or for public service, shall become property of public dominion (2) All property of the State, which is not of public dominion, is patrimonial property (3) The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (4) Property is either of public dominion or of private ownerhship Answer: (1) because it is the other way around – ANSWER; It is the other way around. Property of public dominion, when no longer intended for public use or for public service, shall become patrimonial property of the state. (2) is true. Property owned by the State which is not intended for public use or public service is patrimonial. (3) is true. Property of provinces, cities and municipalities is divided into property for public use and patrimonial property. Property for public use in these LGUs consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for publc service paid for by the concerned LGUs. All others are patrimonial property. (4) Property is either of public dominion or of private ownership. The relevance of distinguishing public properties from private ones is that the former are exempt from execution because of their necessity for governmental functions. Azy’s Notes

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For the same reason, properties of the public domain are not within the commerce of men. 

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1 year because Anthony is a possessor in good faith. Thus, the 8 years of possession by Carlo can be continued by Anthony to acquire the real property through ordinary acquisitive prescription.

Distinguish occupation from possession (1) Both are modes of acquiring ownership (2) Occupation is a way of acquiring things that are appropriable by nature which are without an owner such as animals, hidden treasure and abandoned movables. It is, however, not a mode for acquiring a piece of land. (3) On the other hand, possession is a mode for acquiring both movables and immovables. In the case of immovables, such possession must be adverse in character.

(3) If Carlo is able to legally recover his property, can he require Anthony to account for all the fruits he has harvested from the property while in possession? No. The general rule is that the fruits pertain to the owner. There are exceptions to this rule such as: (1) when possessor of the land receives the fruits in good faith; (2) in antichresis where the creditor gets the fruits; (3) in usufructuary where the possesor has the right to enjoy the fruits; and (4) in a lease agreement where the lessee gets the natural and industrial fruits. 27

Anthony bought a piece of untitled agricultural land from Bert. Bert, in turn, acquired the property by forging Carlo’s signature in a deed of sale over the property. Carlo had been in possession of the property for 8 years, declared it for tax purposes, and religiously paid all taxes due on the property. Anthony is not aware of the defect in Bert’s title, but has been in actual physical possession of the property from the time he bought it from Bert, who had never been in possession. Anthony has since then been in possession of the property for one year. (1) Can Anthony acquire the property through acquisitive prescription?

(4) If there are standing crops on the property when Carlo recovers possession, can Carlo appropriate them? Yes. Art. 448 applies since both parties acted in good faith. Carlo, as owner of the land, has the following options: a. Appropriate the fruits b. Compel Bert, who is a sower in good faith, to rent the land Marcelino, a treasure hunter as just a hobby, has found a map which appears to indicate the location of hidden treasure. He has an idea of the land where the treasure might possibly be found. Upon inquiry, Marcelino learns that the owner of the land, Leopoldo, is a permanent resident of Canada. Nobody, however, could give him Leopoldo's exact address. Ultimately, anyway, he enters the

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Yes. He can acquire the property through acquisitive prescription because the subject land is unregistered property. (2) How many years does Anthony need? 27

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land and conducts a search. He succeeds. Leopoldo, learning of Marcelino “find", seeks to recover the treasure from Marcelino but the latter is not willing to part with it. Falling to reach an agreement, Leopoldo sues Marcelino for the recovery of the property, Marcelino contests the action. How would you decide the case? (1) Is this still by chance since he found a map and used it to find the hidden treasure? No. It is by chance if it is by good luck. In this case, Marcelino used a map to find it.

content. The following filed legal claims over the notes and coins: (1) Adam, as finder; (2) Blas, as owner of the property where they were found; (3) Bank of the Philippine Islands, as successor-in-interest of the owner of the vault; and (4) The Philippine Government because of their historical value. Who owns the notes and coins? From RJ: It depends on how you argue:

(2) Is Leopoldo entitled to a share? Yes. The owner of the land is the owner of its surface and everything under it. Assuming arguendo that Marcelino found the subject property by chance and that the find is therefore hidden treasure, Leopoldo is still entitled to ownership of the subject property. Under Art. 438, hidden treasure belongs to the owner of the land, building or other property on which it is found. Marcelino would have been entitled to a 50% share except that he was a trespasser. 

Adam, a building contractor, was engaged by Blas to construct a house on a lot which he (Blas) owns. While digging on the lot in order to lay down the foudation of the house, Adam hit a very hard object. It turned out to be the vault of the old Banco de las Islas Filipinas. Using a detonation device, Adam was able to open the vault containing old notes and coins which were in circulation during the Spanish era. While the notes and coins are no longer legal tender, they were valued at P100 million because of their historical value and the coins silver nickel

a. It can belong to BPI if you argue that the vault containing the notes and coins are not hidden treasure (because the ownership of which is apparent), but simply a lost movable; hence the finder has the duty to return (but the finder will get 1/10 as finder's share) (see 439, 720) b. It can belong to Adam, as finder, and Blas, as owner if you argue that it is a res nullius (owned by no one) because of the length of time and therefore, a hidden treasure. Assuming that either or both Adam and Blas are adjudged as owners, will the notes and coins be deemed part of their absolute community or conjugal partnership of gains with their respective spouses? From RJ: As for the question whether or not it will form part of the community property or conjugal property, the answer is yes. It forms part of community property because it is property that is acquired during the marriage. It forms part of conjugal property by express provision of law 117 (4).

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Demetrio knew that a piece of land bordering the beach belonged to Ernesto. However, since the latter was studying in Europe and no one was taking care of the land Demetrio occupied the same and constructed thereon nipa sheds with tables and benches which he rented out to people who want to have a picnic by the beach. When Ernesto returned, he demanded the return of the land. Demetrio agreed to do so after he has removed the nipa sheds. Ernesto refused to let Demetrio remove the nipa sheds on the ground that these already belonged to him by right of accession. Who is correct? Ernesto is correct. Demetrio built the nipa huts with the knowledge that Ernesto owned the lot and without the consent of Ernesto. He was therefor a builder in bad faith. In cases where the landowner acted in good faith while the builder acted in bad faith, Art. 449 applies. Thus, the builder, planter or sower loses what is built, planted or sown, and the landowner becomes the owner of the same. As an alternative, Ernesto may demand the demolition of the nipa hut at the expense of Demetrio in order to restore the land to its former condition. Another option available to Ernesto is to compel Demetrio to buy the land regardless if the value of the land is considerably more than the nipa hut. In all three cases, the landowner is entitled to damages and the builder, planter or sower has a right to be reimbursed for necessary expenses for the preservation of the land.

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In good faith, Pedro constructed a five-door commercial building on the land of Pablo who was also in good faith. When Pablo discovered the construction, he opted to appropriate the building by paying Pedro the cost thereof.

However, Pedro insists that he should be paid the current market value of the building, which was much higher because of inflation. (1)

Who is correct, Pedro or Pablo?

Pablo is correct. Under Article 448 of the New Civil Code in relation to Article 546, the builder in good faith is entitled to a refund of the necessary and useful expenses incurred by him, or the increase in value which the land may have acquired by reason of the improvement, at the option of the landowner. The option between the two is determined by the landowner Pablo. The case of Pecson v. CA is not applicable to the problem. In the Pecson case, the builder was the owner of the land who later lost the property at a public sale due to non-payment of taxes. The Court ruled that Article 448 does not apply to the case where the owner of the land is the builder but who later lost the land; not being applicable, the indemnity that should be paid to the buyer must be fair market value of the building and not just the cost of construction thereof. The Court opined in that case that to do otherwise would unjustly enrich the new owner of the land. (2)

In the meantime that Pedro is not yet paid, who is entitled to the rentals of the building, Pedro or Pablo?

Pablo is entitled to the rentals of the building. As the owner of the land, Pablo is also the owner of the building being an accession thereto. However, Pedro who is entitled to retain the building is also entitled to retain the rentals. He, however, shall apply the rentals to the indemnity payable to him after deducting reasonable cost of repair and maintenance. Azy’s Notes

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For many years, the Rio Grande river deposited soil along its bank, beside the titled land of Jose. In time, such deposit reached an area of one thousand square meters. With the permission of Jose, Vicente cultivated the said area. Ten years later, a big flood occurred in the river and transferred the 1,000 square meters to the opposite bank, beside the land of Agustin. The land transferred is now contested by Jose and Agustin as riparian owners and by Vicente who claims ownership by prescription. Who should prevail,? Why? Jose should prevail. The disputed area, which is an alluvion, belongs by right of accretion to Jose, the riparian owner (Art. 457). When, as given in the problem, the very same area was "transferred" by flood waters to the opposite bank, it became an avulsion and ownership thereof is retained by Jose who has two years to remove it (Art. 459, CC). Vicente's claim based on prescription is baseless since his possession was by mere tolerance of Jose and, therefore, did not adversely affect Jose's possession and ownership (Art. 537, CC). Inasmuch as his possession is merely that of a holder, he cannot acquire the disputed area by prescription.

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The properties of Jessica and Jenny, who are neighbors, lie along the banks of the Marikina River. At certain times of the year, the river would swell and as the water recedes, soil, rocks and other materials are deposited on Jessica's and Jenny's properties. This pattern of the river swelling, receding and depositing soil and other materials being deposited on the neighbors' properties have gone on for many years. Knowing this pattern, Jessica constructed a concrete barrier about 2 meters from her property line and extending towards the river, so that when the water recedes, soil and other materials are trapped within this barrier. After several years, the area between Jessica's

property line to the concrete barrier was completely filled with soil, effectively increasing Jessica's property by 2 meters. Jenny's property, where no barrier was constructed, also increased by one meter along the side of the river. (1) Can Jessica and Jenny legally claim ownership over the additional 2 meters and one meter, respectively, of land deposited along their properties? Only Jenny may legally claim ownership over the additional one meter in her property. Under Art. 457, to the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. Deposit should be gradual and natural without intervention of man. By constructing a barrier to trap the soil and other materials brought by the water, the accretion can no longer be said to have been from the effects of the current of the Marikina River. (2) If Jessica's and Jenny's properties are registered, will the benefit of such registration extend to the increased area of their properties? No, there is a need to register the accretion. To the owners of land adjoining banks of rivers belong the accretions it receives from the gradual effects of the current of the waters. When the accretion was created, its ownership was passed automatically to Jenny. However, there is still a need to register the same in order for that portion of the land to be imprescriptible. (3) Assume the two properties are on a cliff adjoining the shore of Laguna Lake. Jessica and Jenny had a hotel built on the properties. They had the earth and rocks Azy’s Notes

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excavated from the properties dumped on the adjoining shore, giving rise to a new patch of dry land. Can they validly lay claim to the patch of land?

What rights, if any, does Ulpiano have against Marciano? Explain.

No. This is reclamation without the authority of the State. As held in Chavez v PEA, reclaimed land belongs to the State. Since the bed of the lake is public dominion then everything above it is also part of public dominion. 

Marciano is the owner of a parcel of land through which a river runs out into the sea. The land had been brought under the Torrens System, and is cultivated by Ulpiano and his family as farmworkers therein. Over the years, the river has brought silt and sediment from its sources up in the mountains and forests so that gradually the land owned by Marciano increased in area by three hectares. Ulpiano built three huts on this additional area, where he and his two married children live. On this same area, Ulpiano and his family planted peanuts, monggo beans and vegetables. Ulpiano also regularly paid taxes on the land, as shown by tax declarations, for over thirty years. When Marciano learned of the increase in the size of the land, he ordered Ulpiano to demolish the huts, and demanded that he be paid his share in the proceeds of the harvest. Marciano claims that under the Civil Code, the alluvium belongs to him as a registered riparian owner to whose land the accretion attaches, and that his right is enforceable against the whole world. Is Marciano correct? Explain. From RJ: Marciano is correct. As the registered riparian owner of the land, the alluvium (resulting from effects of the current of the waters) belongs to him and his right is enforceable against the world.

From RJ: Ulpiano, who is a builder and sower in bad faith, has the right to receive reimbursement for the necessary expenses of preservation of the land (452) and if Marciano appropriates the harvest, to the expenses in his production, gathering, and preservation (443). 

Alex died without a will, leaving only an undeveloped and untitled lot in Taguig City. He is survived by his wife and 4 children. His wife told the children that she is waiving her share in the property, and allowed Bobby, the eldest son who was about to get married, to construct his house on ¼ of the lot, without however obtaining the consent of his siblings. After settlement of Alex’s estate and partition among the heirs, it was discovered that Bobby’s house was constructed on the portion allocated to his sister, Cathy. Cathy asked Bobby to demolish his house and vacate the portion allotted to her. In lieu of demolition, Bobby offered to purchase from Cathy the lot portion on which his house was constructed. At that time, the house was valued at P300,000 while the portion of the lot on which the house was constructed was valued at P350,000. a) Can Cathy lawfully ask for demolition of Bobby’s house? Based on the facts, there appears to be no reason to believe that Bobby knew that the land where he constructed his house was on the lot portion alloted to Cathy. Thus, in the absence of contrary facts, it is to be presumed that Bobby acted in good faith. Since Cathy and Bobby both acted in good faith, the provisions of Art. 448 applies. There are only three alternatives available to the landowner in Art. 448 and Azy’s Notes

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demolition of the building, planting or sowing is not one of them. Demolition is only available in cases where the landowner acted in good faith while the builder, planter or sower acted in bad faith. b)

Donation Inter Vivos vis-à-vis Donation Mortis Causa Donation Inter Vivos The act is immediately operative, even if the actual execution may be deferred until the death of the donor

Can Bobby legally insist on purchasing the land?

No, it is the landowner who has the option between (1) appropriating the work, planting or sowing for himself or (2) selling the land to the builder or planter or renting the land to the sower.

May be revocable or irrevocable28 The death of the donor irrelevant after conveyance since the thing already belongs to the donee upon donation.

Donation Mortis Causa Nothing is conveyed to the grantee and nothing is acquired by the latter, until the death of the grantortestator, the disposition being until then ambulatory and not final Revocable The death of the donee before the grantor-testator will render the testamentary disposition in donee’s favor inoperative since there is no right of representation in testamentary succession except with respect to legitimes.

**In case of doubt, the conveyance should be deemed donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed. 

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Ownership may be exercised over things and rights. An owner has the right to enjoy and dispose the thing, as well as the right to file an action against the holder or possessor to recover it.29 Possession is the holding of the thing and the enjoyment of a right. It is acquired by the material occupation of the thing or the exercise of a right, or by the fact that it is subject to the action of our will or by the proper acts and legal formalities established for acquiring rights. Actions to Recover Property: o If movable, replevin. o If immovable: To recover possession Forcible entry – must be filed within 1 year from dispossession or within 1 year 

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28

The specification in a deed of the causes whereby the act may be revoked by the donor indicates that the donation is inter vivos. 29 RED (recover, enjoy, dispose) Azy’s Notes 23


from discovery of dispossession if stealth was employed by defendant; dispossession must be due to force, intimidation, stealth, treaths, or 30 strategy Unlawful detainer – must be filed within 1 year from the time the possession became unlawful Accion publiciana – must be brought within 10 years To claim ownership Accion reinvindicatoria – must be brought within 10 or 30 years, dependng on whether the other party seeks to obtain ownership over the property through ordinary or extraordinary prescription Actual possession under claim of ownership raises disputable presumption of ownership. The true owner must resort to judicial process for th recovery of the property. In such actions, the property must be identified and the plaintiff must rely on the strength of his title and not the weakness of the defendant’s claim. If an entire parcel is possessed under claim of ownership, there is constructive possession of the entire parcel, unless a portion thereof is adversely possessed by another. What are the rules or criteria to be used in case of conflict or dispute regarding possession? 1. The present possessor should be preferred 2. If both are present possessors, the one longer in possession 3. If the dates or possession are the same, the one who presents a title

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4. If all conditions are equal, the thing shall be placed in juducial deposit pending determination by the court What are the rules in case of double sale or double donation of an immovable? 1. First to register in good faith 2. If there is no registration, first to possess in good faith 3. If there was no possession, the person who presents the oldest title, provided it was acquired in good faith What is the rule in case of double sale or double donation of a movable? First possessed in good faith. Lopez v Orosa: A building is by itself is an immovable property irrespective of whether or not said structure and the land on which it is adhered to belong to the same owner. Davao Saw Mill: Machinery which is movable by nature becomes immovable only when placed by the owner of the property or plant, but not when so placed by a usufructuary, a tenant or any person only having temporary rights, unless such person acted as an agent of the owner. Extraordinary applications of Art. 448: o Children were invited by the parents to occupy their lot (Macasaet v Macasaet) o The builder, planter or sower was the owner himself who subsequently lost the land thru public auction (Pecson v CA)

30

FISTS Azy’s Notes

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Uribe Civil Law Review (Succession and Property) -

Rules in BPS Presumption is that landowner built whatever is built, planted or sown. Landowner used other person’s materials If landowner and owner of materials both in GF (also applies if both are in BF) - landowner must pay for the materials used - owner of materials has right to remove materials but only if if he can do so without injury to the work constructed, or without destroying the plantings, constructions or works If landowner in BF but owner of materials in GF - landowner must pay for the materials used - plus damages - owner of materials has right to remove materials If landowner in GF but owner of materials in BF? Maybe same situation as landowner in GF but BPS in BF

BPS has a right of retention in case landowner chooses to appropriate the building, planting or sowing

If landowner in GF but BPS in BF - BPS loses what is built, planted or sown without right to indemnity but is entitled to reimbursement of necessary expenses of preservation of the land - Landowner has two options: o (1) Demolish the works or remove the planting or sowing at the expense of the BPS o (2) Compel the BP to buy the land regardless of the disproportionality in the price of the works, planting or sowing and of the land or compel the sower to rent the land - In both cases, the landowner is entitled to indemnity If landowner in BF but BPS in GF (Note: this is similar to a situation where the landowner was in BF and used the materials of someone else who acted in GF) - Landowner must pay for the value of the materials - Plus damages - Owner of materials has right to remove materials

Builder, Planter or Sower on somebody else’s land If landowner and BPS both in GF (also applies if they are both in BF) - landowner has two options: o (1) appropriate the works, plantings or sowing upon reimbursing the BPS of necessary and useful expenses; or o (2) compel the builder and planter to buy the land if the value of the land is not considerably more than the value of the works or planting or compel the sower to rent the land Azy’s Notes

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Incapacity and Disinheritance 1. Priest or minister who heart the confession or extended spiritual aid to testator during testator’s last illness including his a. Relatives to the 4 th civil degree b. Church or institution to which such priest or minister belongs 2. Guardian but only before the final accounts of the guardianship have been approved 3. An attesting witness to the will including his a. Spouse b. Parents c. Children 4. Physician, nurse or health officer who took care of the testator during his last illness 5. Those not permitted by law to inherit Art 1028 in relation to 739 (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. Art. 1032: Causes of unworthiness (1) Parents who: - Abandoned their children or - induced daughter to lead a corrupt or immoral life or - attempted against their virtues (2) Convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants; (3) 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 groundless

(4) Knew of testator’s violent death but failed to report the same within 1 month (5) Convicted of adultery or concubinage with the spouse of the testator; (6) By fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. What grounds are common in disinheritance and unworthiness? Art. 1032 except (4), (7) and (9). (4) Fails to report testator’s violent death within 1 month (Note: Sir said this is inoperative because there is no such obligation in law) (7) Prevents testator from making or revoking a will or who conceals or alters the same (8) Falsifies or forges a testator’s supposed will ** With respect to the cause “attempt on the life of the testator, his or her spouse or any of his descendants or ascendants”, if a descendant is the one being disinherited, a finding of guilit by final judgment is necessary. For all other persons, a conviction of an attempt on the life is enough

Azy’s Notes

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Grounds for the ff: 

1.

2. 3. 4. 5.

Declaration of marriage null and void Art 35: Essential and formal requisites (Below 18; Authorization of Solemnizing Officer; No marriage license; Bigamous; Mistake in Identity; Failure to register partition and distribution) Art. 36: Psychological Incapacity Art. 37: Incestuous (between brothers and sisters; between ascendants and descendants) Art. 38: Public Policy (Adopting parents, adopted children and their spouses; Killed own spouse or other person’s spouse; Step parents and step children) Art. 41 when both parties acted in BF

Annullment of marriage 18-21 no parental consent Insanity Force, intimidation or undue influence Concealment of: (1) Crime involving moral turpitude; (2) STD; (3) Habitual alcoholism; (4) Drug addiction; (5) Homosexuality; or (6) Pregnant by another man 5. Inability to consummate marriage 6. Serious and incurable STD 

1. 2. 3. 4.

6. Lesbianism or homosexuality 7. Contracting a bigamouse marriage 8. Sexual infidelity or perversion 9. Attempt against the life 10. Abandonment without justifiable cause for more than 1 year Judicial separation of property 1. Voluntary agreement between the spouses 2. Sentenced to a penalty which carries with it civil interdiction 3. Judicially declared absentee 4. Loss of parental authority 5. Abandoned spouse 6. Spouse granted administration powers in the marriage settlement abused such power 7. Separated in fact for at least 1 year and reconciliation is improbable 

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1. 2. 3. 4.

Administration of exclusive property of the other spouse Becomes the guardian of the other spouse Judicially declared absentee Sentenced to a penalty which carries with it civil interdiction Fugitive

Legal separation 1. Repeated physical violence to spouse or any of his or her children 2. Physical abuse or moral influence to compel to change religious or political affiliations 3. Attempt or connive to induce or corrupt to engage in prostitution 4. Final judgment of imprisonment of more than 6 years 5. Drug addiction or habitual alcoholism 

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Children conceived and born oustide of wedlock will be legitimated by a subsequent valid marriage between the parents. NOT ALWAYS TRUE. It may be that the child was conceived at a time when there was a legal impediment to the marriage of the child’s parents. The action to claim legitimacy ay be brought by the child during his or her lifetime and shall be transmitted to the heirs who shall have a period of five years within which to institute the action. THIS ONLY APPLIES TO MINORS. Children conceived and born outside a valid marriage are illegitimate. THERE ARE EXCEPTIONS (e.g. Art. 36). Children conceived and born during the marriage of the parents are legitimate. TRUE. The law only requires that the child be conceived or born. This more than complies with the law. Under Art. 147, wages and salaries are divided equally. It is with respect to properties that there is co-ownership.

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Uribe Notes

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