Wednesday, November 24, 2010

INTESTATE SUCCESSION

I.                    A. General Provisions
1.       When does it take place

Art. 960. Legal or intestate succession takes place:
1.       When a person dies without a will
·         or with a void will,
·         or one which has subsequently lost its validity;

2.       When the will does not institute an heir to,
·         Or dispose all of the property belonging to the testator.
·         In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;

3.       If the suspensive condition attached to the institution of the heir does not happen or is not fulfilled,
·         Or if the heir dies before the testator,
·         Or repudiates the inheritance, there being no substitution, and no right of accretion takes place;

2.       Who are the intestate heirs

Art. 961. In default  of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth,
·         in the legitimate and illegitimate relatives of the deceased,
·         in the surviving spouse,
·         and in the state.

ROSALES vs ROSALES

Facts:

Irenea Rosales, wife of Carterio Rosales insisted on getting a share from the estate in her capacity as surviving spouse from the estate of her mother-in-law.

Issue:

Whether or not a daughter-in-law is entitled to the estate of a her parent-in-law in her capacity as the surviving spouse of a son who predeceased his mother;

Ruling:

Classification of intestate succession: intestate successors re classified into two:
1.       Those who inherit by their own right;
2.       Those who inherit by right of representation (Art. 981)

There is no provision in the Civil Code which states that a a widow is an intestate heir of her mother-in-law;
Art. 887 (961) refers to the estate of the deceased spouse in which case the surviving spouse is a compulsory heir;

Surviving spouse is a third party in the estate of a parent-i-law;

The basis for right of representation is blood relationship;

Inchoate right is extinguished by death of an heir;

3.       Order of the share in the intestate succession

Art. 962. In every inheritance, the relatives nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place;

Relatives in the same degree shall inherit equal shares, subject to the provisions of Article 1006
·         With respect to relatives of the full blood and half blood,
·         And or Article 987, paragraph 2, concerning division between the paternal and maternal lines;

De los Santos vs De la Cruz

Facts:

Plaintiff, a grandniece of the decedent filed a complaint for specific performance against Maximo De la Cruz, alleging that she and other co-heirs executed an extrajudicial partition agreement over a parcel of land and adjudicate it to the defendant on condition that the latter would undertake the development and subdivision of the estate; defendant admitted the extrajudicial agreement but claims that plaintiff has no cause of action against him because plaintiff was not an heir of the decedent;

Issue:

Whether or not plaintiff is an heir of the decedent;

Ruling:

She is not an heir. Plaintiff being merely a grandniece of the decedent could not inherit from the latter by the right of representation;

Art. 972. The right of representation takes place in a direct descending line, but never in the ascending;

In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of full or half blood;

Art.  962. In every inheritance, the relative nearest in degree…

In an intestate succession, a grandniece of the deceased cannot participate with a niece in the inheritance, because the latter being a nearer relative, the more distant grandniece is excluded. In the collateral line, the right of representation does not obtain beyond the sons and daughters of the brothers and sisters.

B. RELATIONSHIP

Art. 963.               Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915)

Art. 964.               A series of degrees forms a line, which may be either direct or collateral.

A direct line is that constituted by the series of degrees among ascendants and descendants.

A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a)

Art. 965.               The direct line is either descending or ascending.

The former unites the head of the family with those who descend from him.

The latter binds a person with those from whom he descends. (917)

Art. 966.               In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.

In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent.

In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a)

Art. 967.               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. (920a)

Art. 968.               If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. (922)

Art. 969.               If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. (923)

C. REPRESENTATION

Art. 970.               Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (942a)

Art. 971.               The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (n)

Art. 972.               The right of representation takes place in the direct descending line, but never in the ascending.

In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (925)

Art. 973.               In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. (n)

Art. 974.               Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (926a)

Art. 975.               When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927)

Art. 976.               A person may represent him whose inheritance he has renounced. (928a) Futa! In other words, a renouncer may represent man lang gle!!!

Art. 977.               Heirs who repudiate their share may not be represented. (929a) but he may not be represented!!!

Art. 982.               The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.

Art. 902.               The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a)

Art. 992.               An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)

Art. 1005.             Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948)

Art. 1006.             Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949)

Art. 1007.             In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950)

Art. 1008.             Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915)

TEOTICO VS DEL VAL 13 SCRA 406

Deceased executed a will naming as heirs her niece and the latter’s husband and her grandchildren.
Appellant opposed the probate, claiming to be an adopted child of the deceased sister and an illegitimate child of the deceased’s bother.

Issue:
Is she entitled to claim as an illegitimate daughter of the brother of the testatrix or as an adopted daughter of the testatrix sister?

Held:

·           No, Article 992 of our Civil Code provides: "An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; ... ."
·           Likewise, the oppositor cannot also derive comfort from the fact that she is an adopted child of Francisca Mortera because 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.

DIAZ VS IAC

·         Felisa is the niece of the decedent.
·         Petitioners are illegitimate grandchildren of the decedent;

Issue:

Who are the legal heirs of Simona Pamuti Vda. de Santero — her niece Felisa Pamuti Jardin or her grandchildren (the natural children of Pablo Santero)?

Held:

Petitioners’ father is the legitimate child of the decedent; petitioners are illegitimate children; thus:

ART. 992.             An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)

Delos Santos vs Dela Cruz see above;

ABELLANA-BACAYO VS FERRARIS-BORROMEO

·         The sole issue to be resolved in this case is: Who should inherit the intestate estate of a deceased person when he or she is survived only by collateral relatives, to wit an aunt and the children of a brother who predeceased him or her? Otherwise, will the aunt concur with the children of the decedent's brother in the inheritance or will the former be excluded by the latter?

HELD:

·         Under our laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed.

ART. 1009.           Should there be neither brothers nor sister nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

CORPUS VS CORPUS

·         Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles;
·         Teodoro is an acknowledged natural child but not legitimate;
·         Yangco had no forced heirs. At the time of his death, his nearest relatives were:

1.       a half-brother and half-sister (Luis and Paz)
2.       children of a half-brother Pablo
3.       Juanita, daughter of half-brother Jose

·         Tomas Corpus, legitimate son, is the sole heir of Juanita Corpus.

Issue:

Whether Tomas can inherit from Teodoro?

Held:

·         The children of Ramona Arguelles and Tomas Corpus are presumed to be legitimate.
·         A marriage is presumed to have taken place between Ramona and Tomas.
·         Semper praesumitur pro matrimonio. It is disputably presumption "That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage";
·         "that a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate", and "that things have happened according to the ordinary course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and cc Rule 131, Rules of Court).
·         Therefore, Teodoro is an illegitimate son while Jose is a legitimate son; Juanita is a legitimate daughter and Tomas is a legitimate son of Juanita;
·         Article 992 of the Civil Code provides that "an illegitimate child (Teodoro) has no right to inherit ab intestato from the legitimate children (Jose) and relatives (Juanita) of his father or mother; nor shall such children (Jose) or relatives (Juanita) inherit in the same manner from the illegitimate child (Teodoro)".
·         If Jose cannot inherit from Teodoro, Tomas who is a grandson of Jose cannot also inherit from Teodoro;

SAYSON VS CA

·         Eleno and Rafaela Sayson begot five children, namely, Mauricio, Rosario, Basilisa, Remedios and Teodoro.
·         Teodoro, married Isabel Bautista and begot:

1.       Delia                              legally adopted
2.       Edmundo, and          legally adopted
3.       Doribel.                        Legitimate daughter

Petitioners now claim the estate of Teodoro, contending that Delia, Edmundo and Doribel were not children of Teodoro. Court held that Delia and Edmundo are legally adopted children while Doribel is a legitimate daughter. On ther other hand, the 3 children files an action for partition of the estate of Eleno, Teodoro’s father;

Issue:
Who is entitled to inherit from Eleno’s Estate?

Held:

As the legitimate daughter of Teodoro, Doribel has a right to represent her deceased father in the distribution of the intestate estate of her grandparents.

However, the relationship created by the adoption is between only the adopting parents and the adopted child and does not extend to the blood relatives of either party. Therefore Delia and Edmundo cannot inherit;

ORDER OF INTESTATE SUCCESSION

A. DESCENDING DIRECT LINE

1. Estate of a Legitimate Decedent
a. Illegitimate children
Art. 983.               If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895. (n)

Art. 988.               In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. (939a)

Art. 989.               If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a)

Art. 990.               The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)

Art. 991.               If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. (942-841a)

Art. 992.               An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)

Art. 993.               If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike. (944)

Art. 994.               In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate.

If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half. (945a)

CORPUS VS CORPUS supra

LEONARDO VS CA

·         Cresenciano claims he is a legitimate son of his father thus can succeed from his grandmother;
·         But nowhere in his birth certificate can he prove that he and the person named in the purported birth certificate are the one and the same person;
·         Court held he is not entitled;
·         And even if he be proven to be the grandson of the decedent, he would still be considered as an illegitimate son since his birth took place while his father was not married to his mother and while his father is still bound by a previous marriage;

Held:

·         Petitioner is an illegitimate child who has no right to inherit ab intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes. (Article 992, Civil Code of the Philippines;

PASCUAL VS PASCUAL-BAUTISTA

·         Petitioners are natural children of their father who is a full blood brother of the decedent.
·         Petitioners contend that they are not illegitimate children for according to them illegitimate children under the law only covers spurious children but not acknowledged natural children;
·         The Court held: Clearly the term "illegitimate" refers to both natural and spurious.
·         An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father (Article 992, Civil Code of the Philippines);

2. ESTATE OF AN ILLEGITIMATE DECEDENT

a. legitimate children and descendants

Art. 903.               The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n)

Art. 987.               In default of the father and mother, the ascendants nearest in degree shall inherit.

Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. (937)

Art. 992.               An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)

b. illegitimate children and descendants

Art. 990.               The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)

Art. 992

B. SURVIVING SPOUSE

Art. 995.               In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001. (946a)

Art. 996.               If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children. (834a)

Art. 997.               When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. (836a)

Art. 998.               If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. (n)

Art. 999.               When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. (n)

Art. 1000.             If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth. (841a)

Art. 1001.             Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a)

Art. 1002.             In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles. (n)

SANTILLON VS MIRANDA

·         Claro Santillon filed for petition for letters of administration for the estate of his father.
·         This was opposed by Perfecta Miranda, the widow, on the grounds that Claro claims ¾ of the decedent’s shares by virtue of Art. 892 of the New Civil Code whereas Perfecta, claiming under Art. 996, states that she should be entitled to ½.

Issue:

Does the plural word “children” include the singular word “child”?

Which law would apply in the case at bar?

Held:

·         Children — It is a maxim of statutory construction that words in plural include the singular.
·         Art. 996 could or should be read (and so applied): "If the widow or widower and a legitimate child are left, the surviving spouse has the same share as that of the child."
·         Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession.
·         Such being the case, it is obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession.

C. ASCENDING DIRECT LINE

1. Legitimate parents and ascendants

Art. 985.               In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. (935a)

Art. 986.               The father and mother, if living, shall inherit in equal shares.

Should one only of them survive, he or she shall succeed to the entire estate of the child. (936)

Art. 987.               In default of the father and mother, the ascendants nearest in degree shall inherit.

Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. (937)

2. Illegitimate parents

Art. 993.               If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike. (944)

D. COLLATERAL LINE

Art. 1003.             If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a)

Art. 1004.             Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947)

Art. 1005.             Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948)

Art. 1006.             Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949)

Art. 1007.             In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950)

Art. 1008.             Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915)

Art. 1009.             Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. (954a)

Art. 1010.             The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line. (955a)

BICOMONG VS ALMANZA

·         The heirs of the half blood brothers and sisters claim the estate left by a half-sister Maura who died with no issue.
·         The heirs of Felipa, a full blood sister of Maura, claims that Maura predeceased Felipa thus Maura’s estate passes on to Felipa.
·         Court held that Felipa died ahead of Maura.

Held:

The Court held that the provisions of Art. 975, 1006 and 1008 of the New Civil Code are applicable to the admitted facts of the case at bar. These Articles provide:

Art. 975.               When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927)

Art. 1006.             Should brothers and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.

Art. 1008.             Children of brothers and sisters of the half-blood shall succeed per capita or per stirpes, in accordance with the rules laid down for brothers and sisters of the full blood.

BACAYO VS BORROMEO

·         The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or spouse, but was survived only by collateral relatives, namely: an aunt who is a half-sister of her father and by her nieces and nephew, who were the children of her only brother of full blood.
·         These two classes of heirs claim to be the nearest intestate heirs and seek to participate in the estate of said Melodia Ferraris.

Issue:

Who should inherit the intestate estate of a deceased person when he or she is survived only by collateral relatives, to wit an aunt and the children of a brother who predeceased him or her?

Held:

·         The Court held and so rule, that under the laws of succession, a decedent's uncles and aunts may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing and qualified to succeed.
·         The trial court was correct when it held that, in case of intestacy, nephews and nieces of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession. This is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the Philippines.
·         Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession.

E. THE STATE

Art. 1011.             In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. (956a)

Art. 1012.             In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. (958a)

Art. 1013.             After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated.

If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located.

Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant.

The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a)

Art. 1014.             If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. (n)

XXII. RIGHT OF ACCRETION
A.      CONCEPT
Art. 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)
Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary:
(1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and
(2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. (928a)
Art. 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion.
In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (983a)
Art. 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (n)
Art. 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (984)
B.      IN LEGAL SUCCESSION
Art. 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. (981)
C.      COMPULSORY SUCCESSION
Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger.
Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (985)
D.      TESTAMENTARY
Art. 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (986)
Art. 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. (987a)

XXIII. CAPACITY TO SUCCEED
A.      DETERMINATION
Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. (758a)
Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)
CAYETANO V. LEONIDAS, 129 SCRA 522
FACTS:
·         Adoracion Campos died, leaving her father and sisters as surviving heirs.
·         Hermogenes, the father, was the only heir executed an affidavit of adjudication whereby he adjudicated himself the ownership of the entire estate of Adoracion.
·         Nenita Paguia, one of her sisters, filed a petition of reprobate of the will of Adoracion, which was allegedly executed in the US and for her appointment as administratrix of Adoracion’s estate.
·         Nenita alleged that the testratrix was an American citizen at the time of her death and was a permanent resident of Pennsylvania, USA and that her last will and testament was made under the Pennsylvania law and was probated and allowed in the said state.
RULING:
·         As a general rule, the probate court’s authority is limited only to the extrinsic validity of the will, the due execution thereof, the testratrix’s testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally come only after the court has declared that the will has been duly authenticated. However, where the practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue.
·         Under Art 16 par. 2 and Art 1039 of the Civil Code the law which governs Adoracion’s will is the Pennsylvania law which is the national law of the decedent.

B.      WHO MAY SUCCEED
Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato.
The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914)
Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41.(n)
Art. 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. (746a)
Art. 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. (747a)
Art. 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality. (749a)
PARISH PRIEST OF VICTORIA V. RIGOR, 89 SCRA 493
FACTS:
·         Father Pascual Rigor devised forty-four hectares of ricelands to his nearest male relatives who would study priesthood and provided that the administration of the ricelands would be under the responsibility of the parish priest of Victoria during the time that there is no qualified devisee as contemplated in the will.
·         The parish priest of Victoria petitioned for the delivery of the Riceland to the church since no nearest male relative is available.
·         The lower court, after declaring the bequest inoperative, later reconsidered its findings on the ground that the testator had a grandnephew(born after the testators death), who was a seminarian, and directed the administrator of the estate to deliver the ricelands to the parish priest of Victoria as trustee.
RULING:
                THE Supreme Court ruled that the will referred to the nearest male relative of the testator who was living at the time of his death and not to any indefinite time thereafter, because in order to be capacitated to inherit, the devisee must be living at the moment the succession opens, except in case of representation, when it is proper.

C.      WHO ARE INCAPABLE OF SUCCEEDING
Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong;
(3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a)
Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. (n)

Art. 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. (755)
Art. 1032. The following are incapable of succeeding by reason of unworthiness:
(1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue;
(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 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 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. (756, 673, 674a)
Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a)

D.      EFFECT OF ALIENATIONS BY THE WXCLUDED HEIR
Art. 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. (n)
E.       RIGHT OF THE EXCLUDED HEIR
Art. 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. (761a)
Art. 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. (n)
F.       LIABILITIES OF THE EXCLUDED HEIR
Art. 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together it its accessions.
He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. (760a)
G.     PRESCRIPTION OF ACTION
Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. (762a) 

XXIV. ACCEPTANCE AND REPUDIATION OF THE INHERITANCE
Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. (988)
Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. (989)
Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. (991)
Art. 1044. Any person having the free disposal of his property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization.
The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030. (992a)
Art. 1045. The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary. (993a)
Art. 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government. (994)
Art. 1047. A married woman of age may repudiate an inheritance without the consent of her husband. (995a)
Art. 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval. (996a)
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private document.
A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. (999a)
Art. 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. (1000)
Art. 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. (1008)
Art. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. (1001)
Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. (1006)
Art. 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it. (1007a)
Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity. (1009)
Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the causes that vitiate consent, or when an unknown will appears. (997)
Art. 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance.
If they do not do so within that time, they are deemed to have accepted the inheritance. (n)
 
BORROMEO- HERRERA V. BORROMEO, 152 SCRA 171

FACTS:
·         Testator, a widower, died without forced heirs but leaving extensive properties divising all his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided shares, and designating Junquera as executor thereof.
·         Opposition to the probate were filed, that the document presentented as the will of the deceased was a forgery.
·         The testate proceeding was converted into intestate proceeding. Several parties came before the court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito Borromeo.
·         Fortunato filed a motion before the trial court praying that he be declared as one of the heirs of the deceased Vito Borromeo, alleging that he is an illegitimate son and he was omitted by the trial court in the declaration of heirs.
·         Fortunato contends that under Art. 1043 of the Civil Code, there is no need for a person to be first declared as heir before he can accept or repudiate an inheritance. What is required is that he must first be certain of the death of the person whom he is to inherit and that he must be certain of his right of inheritance.
RULING:
The prevailing jurisprudence on waiver of hereditary rights is that the properties included in an existing inheritance cannot be considered as belonging to third person with respect to the heirs, who by fiction of law continue the personality of the former;
XXV. COLLATION

Art. 1061.             Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. (1035a)

Art. 1062.             Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (1036)

Art. 1063.             Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. (1037)

Art. 1064.             When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property.

They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. (1038)

Art. 1065.             Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. (1039)

Art. 1066.             Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (1040)

Art. 1067.             Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. (1041)

Art. 1068.             Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. (1042a)

Art. 1069.             Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation. (1043a)

Art. 1070.             Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. (1044)

Art. 1071.             The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed.

Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. (1045a)

Art. 1072.             In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance. (1046a)

Art. 1073.             The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. (1047)

Art. 1074.             Should the provisions of the preceding article be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction.

If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. (1048)

Art. 1075.             The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened.

For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. (1049)

Art. 1076.             The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value.

The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition if effected.

As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. (n)

Art. 1077.             Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. (1050)


DIZON – RIVERA VS DIZON

·         Testatrix was survived by 7 compulsory heirs and 7 other legitimate grandchildren;
·         The supposed legitime of each of the seven compulsory heirs amounted to P129,362.11.
·         Marina and Tomas received more than their legitime thus Marina and Tomas adjudicated to the other heirs their legitime completed by the giving of cash.
·         Oppositors contend that the estate first be divided into half. The supposed devises bequeathed be proportionately reduced while the other half be divided as 1/7 each to represent as legitimes.

Issue:

Whether or not devises bequeathed by the testatrix already constitute as legitimes.

Held:

·         ART. 906.     Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied.

·         ART. 907.     Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive.

·         This was properly complied with in the executrix-appellee's project of partition, wherein the five oppositors-appellants were adjudicated the properties respectively distributed and assigned to them by the testatrix in her will, and the differential to complete their respective legitimes of P129,362.11 each were taken from the cash and/or properties of the executrix-appellee, Marina, and their co-oppositor-appellant, Tomas, who admittedly were favored by the testatrix and received in the partition by will more than their respective legitimes.

·         Oppositors' proposal would amount substantially to a distribution by intestacy and pro tanto nullify the testatrix' will, contrary to Article 791 of the Civil Code. It would further run counter to the provisions of Article 1091 of the Civil Code that "(A) partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him."

·         A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him' (Article 1091, New Civil Code), from the death of her ancestors, subject to rights and obligations of the latter, and, she cannot be deprived of her rights thereto except by the methods provided for by law (Arts. 657, 659, and 661, Civil Code).

·         The repeated use of the words "I bequeath" in her testamentary dispositions acquire no legal significance, such as to convert the same into devises to be taken solely from the free one-half disposable portion of the estate.

DE ROMA VS CA

FACTS:

·         Testatrix has 2 legally adopted daughters, Buhay and Rosalinda.
·         Testatrix died intestate and Buhay was appointed administratrix.
·         Rosalinda opposed on the ground that certain properties donated by Testatrix to Buhay were not collated.
·         Buhay claimed that under Art. 1062, such properties were not subject to collation if the donor should have so expressly provided.
·         Lower court ruled in favor of Buhay since donation expressly prohibited collation, and such can be accommodated without impairing the legitimes  and to be imputed on the free portion;
·         CA reversed decision;

Held:

·         Nothing in the above provisions expressly prohibit collation;
·         The phrase “sa pamamagitan ng pagbibigay na di na mababawing muli…” merely described the donation as irrevocable;
·         The fact that such donation was irrevocable does not exempt it from being subject to collation;

LOCSIN VS CA 206 SCRA 383

·         Mariano Locsin executed a Last Will and Testament instituting his wife, Catalina, as the sole and universal heir of all his properties. The spouses being childless, had agreed that their properties, after both of them shall have died should revert to their respective sides of the family, i.e., Mariano's properties would go to his "Locsin relatives" (i.e., brothers and sisters or nephews and nieces), and those of Catalina to her "Jaucian relatives."
·         Don Mariano relied on Doña Catalina to carry out the terms of their compact, hence, nine (9) years after his death, Doña Catalina began transferring, by sale, donation or assignment, Don Mariano's as well as her own, properties to their respective nephews and nieces. She made the sales and donation of properties which she had received from her husband's estate, to his Locsin nephews and nieces.
·         In 1989, or six (6) years after Doña Catalina's demise, some of her Jaucian nephews and nieces who had already received their legacies and hereditary shares from her estate, filed action in the Regional Trial Court of Legaspi City to recover the properties which she had conveyed to the Locsins during her lifetime, alleging that the conveyances were inofficious, without consideration, and intended solely to circumvent the laws on succession. Those who were closest to Doña Catalina did not join the action.

ISSUE:

Whether or not the nephews and nieces of Doña Catalina J. Vda. de Locsin, are entitled to inherit the properties which she had already disposed of more than ten (10) years before her death.

HELD:

·         They are not entitled since those properties did not form part of her hereditary estate, i.e., "the property and transmissible rights and obligations existing at the time of (the decedent's) death and those which have accrued thereto since the opening of the succession."
·         The rights to a person's succession are transmitted from the moment of his death, and do not vest in his heirs until such time.
·         Property which Doña Catalina had transferred or conveyed to other persons during her lifetime no longer formed part of her estate at the time of her death to which her heirs may lay claim. Had she died intestate, only the property that remained in her estate at the time of her death devolved to her legal heirs;
·         Even if those transfers were, one and all, treated as donations, the right arising under certain circumstances to impugn and compel the reduction or revocation of a decedent's gifts inter vivos does not inure to the respondents since neither they nor the donees are compulsory (or forced) heirs.
·         Said respondents are not her compulsory heirs, and it is not pretended that she had any such, hence there were no legitimes that could conceivably be impaired by any transfer of her property during her lifetime. All that the respondents had was an expectancy that in nowise restricted her freedom to dispose of even her entire estate subject only to the limitation set forth in Art. 750, Civil Code which, even if it were breached, the respondents may not invoke:

Art. 750. The donation may comprehend all the present property of the donor or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced on petition of any person affected. (634a)


XXVII. PARTITION AND DISTRIBUTION OF THE ESTATE

A. PARTITION

Art. 1078.             Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n)

Art. 1079.             Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. (n)

Art. 1080.             Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a)

Art. 1081.             A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs.

The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. (1057a)

Art. 1082.             Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. (n)

Art. 1083.             Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime.

Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs. (1051a)

Art. 1084.             Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. (1054a)

Art. 1085.             In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (1061)

Art. 1086.             Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash.

Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. (1062)

Art. 1087.             In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. (1063)

Art. 1088.             Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (1067a)

Art. 1089.             The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. (1065a)

Art. 1090.             When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title. (1066a)

B. EFFECTS OF PARTITION

Art. 1091.             A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. (1068)

Art. 1092.             After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. (1069a)

Art. 1093.             The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified.

Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (1071)

Art. 1094.             An action to enforce the warranty among heirs must be brought within ten years from the date the right of action accrues. (n)

Art. 1095.             If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made.

The warranty of the solvency of the debtor can only be enforced during the five years following the partition.

Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (1072a)

Art. 1096.             The obligation of warranty among co-heirs shall cease in the following cases:
                               

1. When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired;

2. When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;

3. When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (1070a)



IBARLE VS PO

·         Husband and wife owned a parcel of land as conjugal property.
·         Husband died and wife sold the property to the Canoys but was not registered.
·         Thereafter, the wife sold the said property again to the Defendant Po pertaining to the ½ of the property;

Issue:

From whose sale is valid?

Held:

·         The sale with the Canoy’s is invalid insofar as it included the share of the children;

·         Art. 777.       The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

·         No formal or judicial declaration being needed to confirm the children's title, it follows that the first sale was null and void in so far as it included the children's share.

·         On the other hand, the sale to the defendant having been made by authority of the competent court was undeniably legal and effective.

ALSUA BETTS VS CA

·         Husband and wife entered into an extra judicial partition with their children; husband and wife also made a holographic will bequeathing their properties to their children;
·         Thereafter, the wife died; husband cancelled his holographic will and made a formal notarial will bequeathing his properties to his children but specifically favoring his daughter Francisca;
·         Other children opposed;

Issue:

Is the Don bound by the extrajudicial partition and can no longer execute a subsequent will?

Held:

·         The respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of making a new will with contrary provisions or dispositions. It is an error because the so-called extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be given effect as a donation inter vivos of specific properties to the heirs made by the parents.


DIMAYUGA VS CA

Facts:

·         Husband and Wife own a homestead; they have a son, Manuel;
·         Wife died while Husband thereafter married his mistress to which he has 5 children;
·         Husband adjudicated for himself the homestead own by him and first wife then donated it to his illegitimate children thereby impairing the legitime of his legitimate son;
·         Manuel filed an action to secure the property in question; court granted him ¾ share while Nelia, the other legitimate daughter to the second wife got ¼;
·         The illegitimate children opposed claiming that Manuel is in estoppel;

Held:

·         Article 1056 of the old Civil Code provides that "if the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand insofar, as it does not prejudice the legitime of the forced heirs."
·         Article 1056 was construed to mean that a person who makes an inter vivos partition must first execute a will. If the will is void, the partition is void (Legasto vs. Verzosa, 54 Phil. 766; Fajardo vs. Fajardo, 54 Phil. 842; Romero v. Villamor, 102 Phil. 641). With more reason would the partition be void if there was no win.
·         In "donating" the said one-half portion to his six illegitimate children, Genaro deprived Manuel of his legitime in his estate or, in effect, made him renounce his future inheritance. The 1951 affidavit cannot be construed as a repudiation of his inheritance in his father's estate because the document does not have that tenor. For this reason, Manuel is not estopped to ignore that partition.

MANG-OY VS CA

·         Old man Tumpao had 3 children from his first marriage and 2 children from the second;
·         He executed a will adjudicating to his children the properties acquired by him;
·         23 years later, his children from the 1st marriage adjudicated to themselves the property leaving out the 2 children from the 2nd marriage;
·         Their contention that although said property was registered during the 2nd marriage, such was acquired during the 1st and that they alone should be entitled to it;

Held:

·         Art. 1056. If the testator should make a partition of his properties by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs.

·         As the trial court put it:

·         The will alone, 'Exh. B', would be inoperative for the simple reason that it was not probated, However, when the persons who were named therein as heirs and beneficiaries voluntarily agreed in writing to abide by its terms probably to save the expenses of probate. And furthermore, carried out its terms after the death of the testator until now, then it must be held to be binding between them.

·         It remains to state that the property in dispute having been registered in 1917, the presumption is that it was acquired during the second marriage and so cannot be claimed by the respondents as the conjugal property of their mother and Old Man Tumpao.


DOROMAL VS CA

·         Justice Antonio Horilleno had a parcel of land to which he co-owned with his brothers and sisters;
·         One sister already died thus Filemena Javellana was called into succession;
·         Later on, the other brothers and sisters of the late Justice sold their share whilst leaving only 1/7 to Filomena while the 6/7 was sold to the Doromals;
·         Five months later, the Doromals received a letter from Filomena asking to repurchase the property by right of redemption with a purchase price of 30,000 pesos, contrary to the actual purchase price of  P115,250;

Held:

·         For purposes of the co-owner's right of redemption granted by Article 1620 of the Civil Code, the notice in writing which Article 1623 requires to be made to the other co-owners and from receipt of which the 30-day period to redeem should be counted is a notice not only of a perfected sale but of the actual execution and delivery of the deed of sale. This is implied from the latter portion of Article 1623 which requires that before a register of deeds can record a sale by a co-owner, there must be presented to him, an affidavit to the effect that the notice of the sale had been sent in writing to the other co-owners. A sale may not be presented to the register of deeds for registration unless it be in the form of a duly executed public instrument.
·         It being beyond dispute that respondent herein has never been notified in writing of the execution of the deed of sale by which petitioners acquired the subject property, it necessarily follows that her tender to redeem the same made on June 10, 1968 was well within the period prescribed by law. Indeed, it is immaterial when she might have actually come to know about said deed, it appearing she has never been shown a copy thereof through a written communication by either any of the petitioners-purchasers or any of her co-owners-vendees.
·         The trial court found that "the consideration of P30,000 only was placed in the deed of sale to minimize the payment of the registration fees, stamps and sales tax." With this undisputed fact in mind, it is impossible for the Supreme Court to sanction petitioners' pragmatic but immoral posture. Being patently violative of public policy and injurious to public interest, the seemingly wide practice of understating considerations of transactions for the purpose of evading taxes and fees due to the government must be condemned and all parties guilty thereof must be made to suffer the consequences of their ill-advised agreement to defraud the state.
·         Of course, the Court of Appeals was also eminently correct in its considerations supporting the conclusion that the redemption in controversy should be only for the price stipulated in the deed, regardless of what might have been actually paid by petitioners that style inimitable and all his own;

GABILA VS PEREZ

FACTS:

·         Brothers and sister executed a deed of sale of a land belonging to their deceased father to Gabila.
·         It is stipulated that upon full payment, they would execute an extrajudicial partition to transfer the title to Gabila;
·         Upon full payment, they did not comply;

Issue:

Is the sale valid? Should there be a partition and transfer?

Held:

·         This action is not one for specific performance of the sale of the property to the appellant, for the sale had been consummated by the payment of the price to the vendors-appellees as stipulated in the deed, and by the delivery of the peaceful possession of the land to the plaintiff-vendee. What the plaintiff seeks merely is the transfer of the title of the land in his name.
·         The defendants-appellees, as the only legal heirs of their father, the deceased Mariano Perez, became the owners of the property in question upon his demise. The rights to the succession were transmitted to them from the moment of his death (Art. 77, Civil Code).
·         Their sale to the appellant of the property, which they inherited from their father put an end to their co-ownership over it (Art. 1082 Civil Code). Consequently there is no further need for them to partition it, the purpose of partition being to separate, divide, and assign a thing held in common among those to whom it may belong (Art. 1079, Civil Code).
·         Their declaration therein that the registered owner of the land is Mariano Perez, who died on October 11, 1942, is the father of the vendors, that "the vendors inherited said land from their deceased father, being the legitimate children" and that "the Vendors are the owners" of said land is, in effect, an adjudication of the land to themselves. Such adjudication renders the stipulation in the deed of sale that "the Vendors will execute immediately an Extrajudicial Partition of all the properties of their deceased father" (Exhibit A-1), superfluous and unnecessary. It may be overlooked or deemed not written at all.
·         All that needs to be done now is to register on the TCT No. 899 of the late Mariano Perez the deed of sale which may also be treated as an affidavit of adjudication of the land to the vendors in order that their father's title may be cancelled and a new one can be issued to their vendee, Carlos Gabila.
·         Ubi jus ibi remedium. Where there is a right, there is a remedy;

ALONZO VS IAC

Facts:

·         5 Brothers and sisters co-owned a lot to which the Alonzos’ bought 2/5 of such;
·         13 years later after the 1st sale and 14 years later after the 2nd sale, the remaining brothers and sisters petitioned to redeem such lot sold to the Alonzos’ claiming there was no written notice under Art. 1088.;
·         It must be noted however that one of the sisters was a neighbor of the Alonzos’ and that none of them objected when an enclosing fence was constructed and when Eduardo Alonzo built a house in said lot purchased by the latter’s family;

Held:

·         In the face of the established facts, we cannot accept the private respondents' pretense that they were unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of such notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of ignorance, thus exalting the letter of the law over its purpose. The purpose is clear enough: to make sure that the redemptioners are duly notified. We are satisfied that in this case the other brothers and sisters were actually informed, although not in writing, of the sales made in 1963 and 1964, and that such notice was sufficient.
·         Now, when did the 30-day period of redemption begin? While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we do say that sometime between those years and 1976, when the first complaint for redemption was filed, the other co-heirs were actually informed of the sale and that thereafter the 30-day period started running and ultimately expired. This could have happened any time during the interval of thirteen years, when none of the co-heirs made a move to redeem the properties sold. By 1977, in other words, when Tecla Padua filed her complaint, the right of redemption had already been extinguished because the period for its exercise had already expired.
·         The following doctrine is also worth noting: While the general rule is, that to charge a party with laches in the assertion of an alleged right it is essential that he should have knowledge of the facts upon which he bases his claim, yet if the circumstances were such as should have induced inquiry, and the means of ascertaining the truth were readily available upon inquiry, but the party neglects to make it, he will be chargeable with laches, the same as if he had known the facts.
·         We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law, which the respondent court understandably applied pursuant to existing jurisprudence. The said court acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De Conejero and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in view of the peculiar circumstances of this case.
·         The co-heirs in this case were undeniably informed of the sales although no notice in writing was given them. And there is no doubt either that the 30-day period began and ended during the 14 years between the sales in question and the filing of the complaint for redemption in 1977, without the co-heirs exercising their right of redemption. These are the justifications for this exception.

CHAVEZ VS IAC

Facts:

Presentacion, Floserfina and Raquel sold their shares to a divided paraphernal lot of their mother to their sister, Concepcion (1/6 each) with the conformity of their mother, Manuela;
However, a few years later, Manuela sold the entire lot to Raquel;
Thereafter, Manuela sold the lot to Pepito Ferrer;

Issue:

Was the partition inter vivos valid? Was the sale to Raquel invalid?

Held:
·         Article 1080 of the New Civil Code allows a person to make a partition of his estate either by an act inter vivos or by will and such partition shall be respected insofar as it does not prejudice the legitime of the compulsory heirs. While the law prohibits contracts upon future inheritance, the partition by the parent, as provided in Art. 1080, is a case expressly authorized by law (Art. 1347, par. 2) Art. 1080 of the Civil Code clearly gives a person two options in making a partition of his estate; either by an act inter vivos or by WILL.
·         When a person makes a partition by will, it is imperative that such partition must be executed in accordance with the provisions of the law on wills; however, when a person makes the partition of his estate by an act inter vivos, such partition may even be oral or written, and need not be in the form of a will, provided that the partition does not prejudice the legitime of compulsory heirs.
·         In the instant case, the respondent appellate court declared the Deeds of Sale executed by Presentacion, Floserfina and Raquel  in favor of Concepcion Chavez as evidence of a valid partition of the land in question by and between Manuela Buenavista and her children as she not only gave her authority thereto but also signed the sales.
·         The Deeds of Sale are not contracts entered into with respect to feature inheritance but a contract perfected and consummated during the lifetime of Manuela Buenavista who signed the same and gave her consent thereto. Such partition inter vivos, executed by the property owner herself, is valid.

·         .... As the defendants freely participated in the partition, they are now estopped from denying and repudiating the consequences of their own voluntary acts. It is a general principle of law that no one may be permitted to disavow and go back upon his own acts, or to proceed contrary thereto. (Joaquin vs. Mitsumine 34 Phil. 858.)

·         Where a piece of land has been included in a partition, and there is no allegation that the inclusion was effected through improper means or without the petitioner's knowledge, the partition barred any further litigation on said title and operated to bring the property under the control and jurisdiction of the court for proper disposition according to the tenor of the partition... They cannot attack the partition collaterally ... (Ralla vs. Judge Untalan, 172 SCRA 858, 865, citing the case of Torres vs. Encarnacion and De Borja, No. L-4681, July 31, 1951, 89 Phil. 678.)

·         As well argued by counsel for the respondents in their memorandum, it would be unjust and inequitable to allow Manuela Buenavista Vda. de Chavez to revoke the sales she herself authorized as well as the sale she herself executed in favor of her son only to execute a simulated sale in favor of her daughter Raquel who had already profited from the sale she made of the property she had received in the partition inter vivos; it would run counter to the doctrine that "no person should be allowed to unjustly enrich herself at the expense of another."

BAUTISTA VS GRINIO-AQUINO

·         Can the property of the surviving husband be the subject of an extrajudicial partition of the estate of the deceased wife?
·         Husband’s property, which he inherited from his father is being subjected to an extrajudicial partition by the heirs of his deceased wife from a first marriage.

Held:

·         The property subject matter of said extrajudicial partition does not belong to the estate of Juliana Nojadera. It is the exclusive property of Manuel Bautista who inherited the same from his father Mariano Bautista, which was registered in his name;
·         Under Section 1, Rule 74 of the Rules of Court an extrajudicial settlement of the Estate applies only to the estate left by the decedent who died without a will, and with no creditors, and the heirs are all of age or the minors are represented by their judicial or legal representatives. If the property does not belong to the estate of the decedent certainly it cannot be the subject matter of an extrajudicial partition.
·         As the subject property does not belong to the estate of Juliana Nojadera, the Deed of Extrajudicial Partition, is void ab initio being contrary to law. To include in an extrajudicial partition property which does not pertain to the estate of the deceased would be to deprive the lawful owner thereof of his property without due process of law. Only property of the estate of the decedent which is transmitted by succession can be the lawful subject matter of an extrajudicial partition. In this case, the said partition obviously prejudices the right of Manuel Bautista as exclusive owner of the property.
·         Moreover, such extrajudicial partition cannot constitute a partition of the property during the lifetime of its owner, Manuel Bautista. Partition of future inheritance is prohibited by law.

De los Santos vs De la Cruz supra

·         It is quite apparent that in executing the partition agreement, the parties thereto were laboring under the erroneous belief that plaintiff-appellee was one of the legal heirs of Pelagia de la Cruz. Plaintiff-appellee not being such an heir, the partition is void with respect to her, pursuant to Article 1105 of the Civil Code, which reads:
ü  ART. 1105. A partition which includes a person believed to be a heir, but who is not, shall be void only with respect to such person.
·         Partition of property affected between a person entitled to inherit from the deceased owner thereof and another person who thought he was an heir, when he was not really and lawfully such, to the prejudice of the rights of the true heir designated by law to succeed the deceased, is null and void (De Torres vs. De Torres, et al., 28 Phil. 49).

B. EFFECTS OF PARTITION

Art. 1091.             A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. (1068)

Art. 1092.             After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. (1069a)

Art. 1093.             The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified.

Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (1071)

Art. 1094.             An action to enforce the warranty among heirs must be brought within ten years from the date the right of action accrues. (n)

Art. 1095.             If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made.

The warranty of the solvency of the debtor can only be enforced during the five years following the partition.

Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (1072a)

Art. 1096.             The obligation of warranty among co-heirs shall cease in the following cases:

1.       When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired;

2.       When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;

3.       When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (1070a)

GUILAS VS JUDGE

FACTS:

·         Adopted daughter contends that the actual delivery and distribution of the hereditary shares to the heirs, and not the order of the court declaring as closed and terminated the proceedings, determines the termination of the probate proceedings;
·         Adoptive father contends that the testate proceedings had already been closed and terminated; and that he ceased as a consequence to be the executor of the estate of the deceased; and that the Adopted Daughter is guilty of laches and negligence in filing the petition of the delivery of her share 4 years after such closure of the estate, when she could have filed a petition for relief of judgment within sixty (60) days from December 15, 1960 under Rule 38 of the old Rules of Court;

Held:

·         The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding (Timbol vs. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong vs. Tecson, 89 Phil., pp. 28-30).
·         As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Siguiong vs. Tecson, supra.); because a judicial partition is not final and conclusive and does not prevent the heir from bringing an action to obtain his share, provided the prescriptive period therefor has not elapsed (Mari vs. Bonilla, 83 Phil., 137).
·         The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for re-opening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate on intestate court already final and executed and re-shuffle properties long ago distributed and disposed of (Ramos vs. Ortuzar, 89 Phil., 730, 741-742; Timbol vs. Cano, supra.; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461).

C. RESCISSION AND NULLITY OF PARTITION

Art. 1097.             A partition may be rescinded or annulled for the same causes as contracts. (1073a)

Art. 1098.             A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. (1074a)

Art. 1099.             The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (1075)

Art. 1100.             The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. (1076)

Art. 1101.             The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition.

Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff.

If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share. (1077a)

Art. 1102.             An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. (1078a)

Art. 1103.             The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (1079a)

Art. 1104.             A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. (1080)

Art. 1105.             A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. (1081a)