Subsection 1: Partition
Who owns the estate prior to partition?
The estate is owned in common by such heirs, subject to the payment of debts of the deceased. What is partition?
It is, in general, 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.
What are the kinds of partition? 1. Actual;
2. Constructive.
What is actual partition?
It is the physical division of the thing among the co-heirs. What is constructive partition?
It is any act, other than physical division, which terminates the co-ownership (e.g. sale to a third person).
What are the two methods of partition? 1. Extrajudicial agreement among the heirs; or, 2. Judicial proceedings.
With respect to partitioning the estate, who is the causante? The decedent himself.
May the causante partition the estate? Yes.
What are the characteristics of such partition? 1. It takes effect only upon death;
2. It is revocable as long as the causante is alive; hence the causante can change or modify it, or even rescind it during his lifetime.
How is such a partition done? 1. By will;
2. By act inter vivos.
What should be the form of the partition done by act inter vivos?
A partition inter vivos should be in writing and in a public instrument. (Fajardo vs. Fajardo, 54 Phil. 843 [1930]) However, the obiter in Chavez vs. IAC (supra) states that even an oral partition is valid.
This is a disputed point.
Under the former law, yes. A mere partition inter vivos which does not observe the formalities of a will cannot, by itself, make testamentary dispositions. This was ruled upon squarely in the case of Legasto vs. Versoza (54 Phil. 766 [1930]) – a partition inter vivos is valid only if there is a supporting will on which the partition is based. And, in the case of Alsua-Betts vs. Court of Appeals (92 SCRA 332 [1979]), the rule was amplified by the ruling that the partition inter vivos is void even if a subsequent will is executed in conformity with the provisions of the prior partition. However, with the change of the word “testator” in the old law to the word “person” in the new law, the rulings in Legasto and Alsua-Betts were put into question. There is strength in the argument that such change allowed for partition inter vivos to be validly made even without a prior supporting will, provided that it is not used to make mortis causa dispositions – for nothing can take the place of a will to dispose of property mortis causa. Hence, the only way a partition without a will can be valid is by following strictly the intestate portions provided by law (i.e. the partition should conform exactly to the portions provided by law in intestate succession, for then the causante would not be making testamentary dispositions in the partition – the dispositions would be by virtue of intestate succession. Explained this way, therefore, the rule that partition inter vivos requires a prior will is still good law.
Note: The ruling of Chavez vs. IAC (supra), according to Atty. Balane, should be considered a defective by virtue of its rulings (1) giving an irrevocable character to the partition inter vivos, and (2) allowing a conveyance by the compulsory heirs of their legitimes even during their lifetimes. What is the limitation on the partition by the causante?
The legitimes of the causante’s compulsory heirs cannot be impaired by partition made by him, whether in a will or by an act inter vivos.
What is a mandatary?
This is a person who is not a co-heir entrusted with the mere power to make the partition after the death of the decedent. Such person is appointed by an act inter vivos or mortis causa.
What is the basis for the existence of constructive partition?
Article 1082 which states that “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, an exchange, a compromise, or any other transaction.
Is partition a matter of right?
Yes. Hence, as a general rule, any co-heir may demand partition at any time. What are the exceptions to this right?
1. When forbidden by the testator; 2. When co-heirs agree on indivision.
What is the limitation to a prohibition to partition imposed by the testator? It should be for a period not exceeding 20 years.
May the testator impose a prohibition on the partitioning of legitimes? Yes.
Is there an exception to this exception of the testator’s imposition? Yes.
1. When any of the causes for the dissolution of a partnership occurs; and, 2. When the court finds compelling reasons for partition.
What is the limitation to a prohibition to partition agreed upon by the heirs? It should be for a period not exceeding 10 years (which is renewable for like periods). What is the rule on the partition of institutions with a suspensive condition?
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.
What is the rationale for this rule on institutions with a suspensive condition?
First of all, the heir instituted under a suspensive condition acquires no rights unless and until the condition happens.
Also, the other heirs not so instituted, however, should not be deprived of their right to demand partition, subject to the obligation to protect the inchoate right of the conditional heir, by furnishing adequate security.
Must there be equality among co-heirs? It shall be observed as far as possible.
How is equality among co-heirs as contemplated by the law on succession characterized? Quantitatively, the shares of the co-heirs are not necessarily equal in value, but are determined by law and by will.
Qualitatively, whatever the aliquot portions be, however, the law mandates equality in nature, kinds, and quality, so that if A, for instance, gets a parcel of rice land, B should also be given one. What are the exceptions or qualifications to the requirement of qualitative equality? 1. If the causante has made the partition himself;
2. If the co-heirs agree otherwise;
3. If qualitative equality is impossible or impracticable.
If a thing be indivisible, or would be much impaired if divided, may if be adjudicated to one of the heirs instead?
Yes – provided however that he shall pay the others the excess in cash. Further, 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.
What is the common duty among heirs upon partition?
Mutual accounting. Thus, any heir who, between the decedent’s death and partition time, received fruits from the estate shall reimburse his co-heirs for their respective shares, in proportion to the hereditary interest of each. Similarly, any heir who incurred necessary or useful
expenses on the hereditary estate may demand reimbursement from his co-heirs in the same proportion.
What is the right to redemption in case of sale?
In the event any co-heir sells his aliquot portion to a stranger before partition time, any co-heir is entitled to redeem the portion sold.
What is the meaning of “stranger”?
A stranger within the meaning of this article (Article 1088) is anyone who is not a co-heir. (Basa vs. Aguilar, 117 SCRA 128 [1982])
When can the right of redemption be exercised?
The right may be exercised only before partition, not after. (Caro vs Court of Appeals, 113 SCRA 10 [1982])
What are the requirements for the exercise of such right?
1. Written notice to the co-heirs by the vendor (Garcia vs. Calaliman, 172 SCRA 201 [1989]); 2. Exercise of right within one month from receipt thereof.
Is the requirement of written notice absolutely necessary?
The rule stated in Garcia is still controlling. However, in at least three cases, there was a certain relaxation of the requirement by ruling that actual notice to, or knowledge by, the co-heir achieves the purpose of the law and meets the legal requirement.
In one of the cases however (Alonzo vs. IAC, 150 SCRA 259 [1987]), it was clarified that it was not abandoning the previous rulings (following Garcia) but was simply laying down an exception to the general rule, in view of particular circumstances. Whether these cases are merely exceptions or reversals of the controlling doctrine remains to be seen.
Although, in the case of Primary Structures vs. Valencia (409 SCRA 371 [2003]), the Court seemed to return to Garcia ruling by characterizing the written notice as mandatory.
What if more than one co-owner wishes to redeem?
In such case, all the co-owners wishing to redeem may do so, but in proportion to each one’s hereditary interest over the mass.