Memorandum on the proposed amendments to the provisions the new Civil Code on succession (Book III) embodied in House Bill No. 1019

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Title: Memorandum on the proposed amendments to the provisions the new Civil Code on succession (Book III) embodied in House Bill No. 1019
extracted text: lt is not necessary to refer e>:pressly lo Art. 107 because par. I without the necessity Qf resorling to Art. 10'1. 1 of Art. '165 says: ''CU If the donec should commit some offense a.gainst tlle person, the honor or the property of the donor, or of Respectfully submitted, his wife or children under his parental auihority." Art. 107 is JORGE BOCOBO a mere applicaticn of the principle in par. 1 of Art. 765, so t hat Chairman, Code Commission revocation under Art. 107 may be effected under Art. 765, par. :\Janila, Febru:l!'y 24, 1951 · l\lEMORANDUJ\1 ON THF. PHOPOSED AMENDMENTS TO THE PROVISIOKS THE NEW CIVIL CODE ON SUCCESSION (HOOK JU) EMBODIED IN HOUSE BILL NO. 1019. ARTICLE 719 This article defines testamentary succesFion but fails to define legal or intestate succession. It is proposed to have this article amended so ss to gi\'e the concept of legal or intestate succession. Jn the original draft of the Code Commisaion, legal or i11testate succession is defined in Article 799 thus: "Legal or intestate succession takes place by operation of law in the absence of a v:.>.lid will." The Code Commission agrees with the amendment. so that Al'ticle 799 will give the concept of both trstamentary an.d intestate successions, while Article 780 provides for mixe<l succession. ARTICLE 78i! An amendment to this article is pl'OJlosed to read thus: "Art. 782. An heir is a person called to th~ WHOLE Oll AN ALIQUOT PORTION OF THE INHERITANCE either bv the provisior. of a will or by operation of law. "Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will." The proposed amendment is not necessary because the word "succession" as used in t his article does not mean "property" but a right, and an heir · may not be entitled to the "whole or an aliquot portion of the inheritance" because of diBinheritance unworthiness. ARTIC~E 815 It is proposed to amend this Article so as to read, thus: "Art. 815." When a Filipino is in a foreign country, he is authorized to make will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines, AS IF EXECUTED IN ACCORDANCE WITH ITS LA ws.i• There is no serious objection to the proposed amendment, although it seems that there is no necessity for the same inasmuch a<:; if the will may be probated in the Philippines, it goc:i without snyiug that said will shall be considered as if executed in accordance with the laws of this country. ARTICLE 838 The last paragraph of this Article is sought to be amended by adding the following: "THE RIGHT OF fHE TESTATOR TO REVOKE HIS WILL, HOWEVER, SHALL NO'r HF. BARRED BY ITS ALLOWANCE DURING HIS LIFETIME." The proposed amendment is a superfluity because of the provisions of Article 828, which ordains that a "will may be revokeu by the testator at any time before his death", and which is in accordance with the principle that ~vel'y will is !'evocable. Moreover, Article 777 provides that "the right to the succession t ransmitted from the moment of the death of the decedent." ARTICLE 878 The following amendment to this Article is suggested: "Art. 878. A suspensive term OR CONDITION IN A TESTAMENTARY DISPOSITION does not prevent tho instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the tem1 OR THE HAPPENING OF THE CONDITION." The Code Commission begs to disagree with the proposed amendment for the following reasons: 1. This Article of the new Civil Code avoids the conflict be. tween Articles 759 and 799 of the Spanish Civil Code. 2. Article 878 of the new Civil Code speaks only of a "suaprnsive term" which does not prevent the instituted heir from acquiring and h-a11smitting his rights to his own heir! ever. before the e.rrival of the term. The law allows the acquisition and ti·ansmission of 1·ights before the arrival of the term because the ''term" or pe-riod is sur~ to C01n6 although the exact arrival may not be ascertained. Condition is an uncertain event, so uncertain tha.t it may not happen; hence, the instituted heir should not acquire nor transmit any right to his own heirs before the ful fillment of such sus1n·nsive condition - which fulfillment gives rise to his right to succeed. 3. Article 884 of the new Civil Code providca that "conditions imposed by the testator upon his heirs shall be governed by the 1·ules established for conditional obligations in ali matters not provided for by this Section." Jn uccordance with the pro\ isions of the new Ci\'il Code on conditiorn> ~l obligations, the fulfillment of sµspensive condition gives rise to. a.n obligation .ol' right as t he case may be. Hence, if the said suspensive condition is not fulfilled, no right or obligation at'ises. ARTICLE 10!7 No. ( 4) of this Article is pror-oscd to be amended to read ao; followA: •• (4) Any attesting witness to the execution of a will, th~ spouse, pa1ents, ni· children, or any one claiming under such witness, spouse, parents, or children, UNLESS THERE ARR THREE OTHER COMPETENT WJTNESS TO THE WILL." The Code Con1mission has no 'Jbjection to the pr'.>posed amendment. This Article is also proposed to be amended by adding No. <5> whieh reads: "<5> THE NOTAHY PUBLIC BEFORE WHOM THE WILL IS ACKNOWLEDGED." The Code Commission also accepts the proposed amendment. An amendment to Article 1035 is proposed to read as follows: "Art. 1035. The person excluded from the inheritance by reason of incapacity SHALL LOSE HIS RIGHT TO THE LEGITIME, BUT SHOULD HE be a child 01· descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. 4'The person so excluded l'hall not. enjoy the usufruct and and administration of the property thus inherited by his chil. dren." We cannot accept the above amendment for three reasons: 1. The use of the word "person" in the first line may imply tha.t there may be persons entitled to the· Iegitime although they are not compulsory heirs. 2. The causes of depl'ivation of succession by reason of incapacity may apply to persons other than compulsory heirs. <Set #<\rticle 1027 and 1032>. 3. The provisions of Article 1035 as they nl'e in the Civil Code do not need any clarification. ARTICLES ON SUCCESSION PROPOSED TO BE REPEALED I N HOUSE BILL NO. 1019 ARTICLE 799 This Article of the new Civil Code provides: "Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention." · 1'he Code Commission believes t.hat the above provisions should 1'€main in the Code for t.he following reasons: 1 . Jt is necessary to prevent the occ~rrence of mixed succission. 2. Theo law should favor testate succession as much a.s "'' THE LAWYERS JOURNAL March 31, 1954 The Code Commission would be gbd to see this Article elimi. m1.ted and repealed as recommended in the House Bill No. 1019. The presence of this a.rticle in the new Civil Code contra\'enes th£; fundamental philosophy of the law on successio?l - socializa tic,n of ownership of property, economic stability, and elimination of feudalistic heirnrchy, as explained in thC Report of the Com mission, p. 116-117. Respec,tfully submitted, PEDRO Y. YLAGAN Member, Code Commission possible, and the proYisions of this article have this policy in mind. 3. There may be cases whertl a person intends to have prop erty which he may acquire subsequent to the making of his will to be distribut{!d according to his own persc:nal wishes. Section 615 of the Code of Civil Procedure contains the same provisions although on real tslate only. (See a.lso Article 596, Low<'r Canada). ARTICLE 891 This Article provides for the ''Reserva Troncal" which was eliminated from the original draft of the Code Commission, but inserted by the House of Representatives. Manila, February 20, 1951. March 31, 1954 THE LA WYERS JOURNAL 155
Date: 1954
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