1.

Provisions Common to Testate and Intestate

Succession

2. What do testate and intestate successions have in

common?

RIGHT OF ACCRETION

3. ALYSSA What is ACCRETION?

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.

4. TAKE NOTE
Accretion is a RIGHT, not and obligation, and may
therefore be accepted or repudiated by those entitled.
This is true in both testate and legal succession.

5. TAKE NOTE ALSO

Even if by law, accretion cannot take place, still the

testator is allowed to expressly provide in his will for
accretion, but this would really be a reciprocal
substitution.

6. Reason for Accretion

Accretion is a right based on the presumed will of the

deceased that he prefers to give certain properties to
certain individuals, rather than to his legal heirs.

7. JED QUESTION

In her will, a testatrix constituted a usufruct (over her

properties) in favor of the children of her three cousins.
The will also provided that the said children are the only
ones to enjoy the same as long as they live. Now then, if
any
of them subsequently dies, who will get his share?

The surviving children – the co-heirs

8. ANSWER

From the above-cited proviso in the will, it can be inferred

that the share of the heir who subsequently dies shall
ACCRUE to the surviving ones. Said proviso is clear
enough, and does not admit of any other interpretation.
9. How Accretion May be Avoided?

Accretion, which follows the decedent’s implied desires

may be avoided by the deceased himself —

(a) By expressly designating a substitute (naturally, the

express desire is superior to the implied desire).

(b) By expressly providing that although accretion may

take place, still he does not want accretion to occur,
that is, he desires no accretion in favor of those who
ordinarily would be entitled to it. (Castan).

10. Requisites for Accretion

(a) unity of object (one inheritance)

(b) plurality of subjects (two or more to inherit ordinarily)

(c) vacant portion example — repudiation of his share by

one of those called to inherit
(d) acceptance (of the portion accruing — by the person
entitled)

11. EDNA Example of Accretion

T makes a will giving a particular car to A and B. If A
repudiates his share, to whom will the whole car go?

1. Is there a unity of object? YES, one car

2. Is there a plurality of subjects? YES, A and B

3. Is there a vacant portion? YES, A’s share

4. Is there an acceptance? YES, B takes it

The whole car goes to B

12. In both testate and intestate succession, there is

accretion

a. in case of predecease

b. in case of incapacity

c. in case of repudiation

13. TAKE NOTE

For Testamentary Succession:

In incapacity and predecease, representation to the

legitime takes precedence over accretion.
For Legal Succession:
There is really no vacant portion, and hence, no accretion
for the survivors inherit in their own right; but whether
or not there is accretion is really immaterial for the effect
is the same, namely, the part affected is given to the
intestate heirs.

14. EMMAN EXAMPLE

A has three brothers. A dies intestate leaving P300,000
but only two brothers survive him. How much will each
surviving get?

Each gets P150,000 in his own right.

It cannot be said that each gets P100,000 in his own

right, and P50,000 by accretion (though the total be the
same), for the predeceased brother never had a chance
to inherit. This is so because the very theory of intestate
succession presupposes the survival of the intestate
heirs.

15. GLENN REVIEW

What are the three causes of accretion mentioned by

law?

a. predecease
b. incapacity

c. repudiation

16. Additional Instances When Accretion May Take Place

(a) If a suspensive condition is not fulfifilled (this is a form

of “incapacity”).

(b) if there is failure to identify one particular heir,

devisee,
or legatee (ineffectiveness of institution) but the others
can be identified.

17. Accretion in Testamentary Succession

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.
18. JOAN EXAMPLE

T instituted A and B as his own heirs. If A predeceases T,

what happens to the share of A?
It accrues to B. Thus, B inherits half by institution, and
half by accretion.

19. IAN REVIEW:

What is meant by accretion?

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.

20. REVIEW:
What are the indispensable requisites for the right of
accretion to exist?

21. For Testamentary Succession:

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.

22. For Legal Succession:

a. predecease

b. incapacity

c. repudiation

23. NO EARMARKING

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.

24. IAN EXAMPLE:

If T gives one half each of a particular house, can there

be accretion? YES, there is no earmarking

If T gives the first floor to A and the second to be, will

there be accretion? NO, there is earmarking

25. TO COMPLICATE MATTERS…

If T gives a third of a car to A and two thirds of it to B, will
there be accretion?

Old Civil Code: NO

New Civil Code: Yes. The mere fixing of aliquot parts does
not necessarily make the property determinate or specific

26. NOEL EXAMPLE:

If T gives A the money he leaves in the left drawer of his
desk and B, the money on the right, will there be
accretion?
No. There was earmarking in this case.

27. NOVA EXAMPLE

If T gives a legacy of P200,000 to A and B in which A gets
a three-fourths of it and B a fourth, will there be an
accretion?
Yes. There is no earmarking in this case because no one
can definitely pinpoint which particular money bills are
meant for either A or B.

28. SHIEREMELL EXAMPLE;

T gave A a legacy of P30,000 and B, a legacy of P40,000.
Can there be accretion if for example A repudiates?

Yes, because there has been no earmarking. For out of

the total cash of P70,000 for example, no one Can
definitely pinpoint which particular money bills were
being given to A, and which, to B.

29. VIVY QUESTION

Mariano Reyes, in his last will and testament among other

things, provided as follows: “I bequeath to my nephews
A, B and C whatever credit balance there may be in my
current account in the Citibank at the time of my death,
in the proportion of one-third for each of them.” A died
before the testator leaving X, his only son as heir. When
Mariano Reyes died, there was a credit balance of
P30,000 in his account. Who will get the P10,000 that
would have corresponded to A under the will had he
survived?
B and C

30. ANSWER:
B and C
Applying the formula of ISRAI and assuming that the
legitime of the testator’s children have not been
impaired, the answer is this:

(a) Institution cannot apply, for A is dead.

(b) Neither can substitution apply for no substitute has

been expressly appointed.

(c) Is representation by X as A’s heir proper? NO, because

a voluntary heir or legatee who predeceases the testator
cannot be represented; i.e., he transmits
no rights to his own heirs.

(d) Inasmuch as the requirements of accretion are

present
here (gift of a portion of the inheritance pro indiviso;
predecease of one), B and C can claim in equal shares the
share of A.

(e) It follows therefore that the intestate heirs cannot

claim by intestacy said share, for accretion is preferred
over intestacy. As has been stated by the Supreme Court,
in testate succession to a vacant portion can only occur
when accretion is impossible.
31. ALYSSA QUESTION:

Testator instituted as his only heirs his cousin, and the

latter’s daughter. But the cousin was incapacitated.
Should his share go to the testator’s legal heirs, or should
it go to the co-heir, namely, the cousin’s daughter?

32. ANSWER:

The co-heir gets the share by accretion, for intestacy will

take place here only when accretion is not possible.

33. JED QUESTION:

A executed a will which was duly probated, wherein he
bequeathed one-half of his property to his full brother B;
and the other to C, his half-brother and to the children of
a deceased half-sister, named D, E and F at the rate of
one-fourth to the former and one-fourth to the latter, in
equal shares. F died before the testator A, leaving only
one child G.
(a) Can G inherit the share by his father F under the
circumstances of this case? Why? No. A voluntary heir
who predeceases the testator cannot be represented. He
transmits no rights to his own heirs.

(b) If your answer is in the negative, who shall inherit

the portion left by F, and in what proportions? Rea
son. D and E. 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.

34. Accretion in Intestate Succession When There is

Repudiation

Art. 1018. In legal succession the share of the person who

repudiates the inheritance shall always accrue to his co-
heirs.

35. TAKE NOTE:

The Article speaks of repudiation only. It is believed
however that the Article applies also in case of
incapacity, without prejudice to the right of
representation. But whether it applied to incapacity or
not, is really immaterial, for whether there will be
accretion or inheritance in their own right by intestacy,
the net answer or result would be the SAME.
Remember too that Art. 1018 does not speak of
“predecease,’’ for in such a case, there is no vacant
portion.

36. EDNA EXAMPLES:

A and B are the decedent’s (no will) brothers and only
surviving relatives. If A repudiates his share, who will get
it?

B will get it.

37. EMMAN A and B are the decedent’s (no will) brothers

and only surviving relatives. A has a child. If A repudiates
his share, will C get it?

No, for one who renounces cannot be represented.

38. GLENN A and B are the decedent’s (no will) brothers.

A has a
child C. If A is incapacitated, will his share accrue to B?

No, there will be no accretion, because C will get said

share by representation. In the collateral line (intestate),
children of brothers or sisters are entitled to represent.

39. JOAN Would your answer be the same if it were a case

of testamentary succession?

No. In testamentary succession, the nephew cannot

represent because a voluntary heir cannot be
represented.

40. Proportional Sharing of Property Received by

Accretion

Art. 1019. The heirs to whom the portion goes by the

right of accretion take it in the same proportion that they
inherit.

41. This rule is similar to the rule of sharing in a

substitution (Art. 861). Note that aside from this
similarity, accretion and substitution are similar in that
both refer only to the FREE PORTION; both refer to a
vacancy caused by predecease, incapacity, or
repudiation; and in both cases, the portion is generally
received with the same charges and conditions.
42. IAN EXAMPLE
A testator gave X, 1/2 of an undivided house, Y, 1/3, and
Z, 1/6. If X repudiates his share, what will be Y’s and Z’s
shares?

Y and Z will share in X’s portion in the proportion of 1/3 to

1/6 (2 to 1) because this was the proportion in which they
had been instituted.

43. Effect of Accretion and Exceptions Thereto

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.

44. An exception to the effects of this Article occurs when

there is a contrary express provision in the will, or when
the rights and obligations referred to are personally
applicable only to the original heir, legatee, or devisee.
45. Accretion Among Compulsory Heirs

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.

46. It is CLEAR under this Article that there can be NO

accretion insofar as the legitime is concerned; accretion,
if it takes place, concerns only the free portion.

47. NOEL EXAMPLE:

Estate is P600,000. T institutes as his heirs his two

legitimate children (X and Y), and a friend (Z). How much
will each heir get?

48. Since institution concerns only the free portion, X and

Y are first given their respective legitimes (P150,000 each
or a total of P300,000). The free portion is then divided
equally among the three instituted heirs (X, Y, Z). Thus,
X gets P250,000
Y gets P250,000
Z gets P100,000

49. NOVA If X predeceases T how will X’s (supposed)

P250,000 be divided?
P150,000 of X’s shares goes to Y in the latter’s own right
(since this is the legitime). The remaining P100,000 will
go equally to Y and Z by accretion since this is the
proportion in which they were instituted to the free
portion.

50. SHIEREMELL T has two legitimate children, A and B.

His estate was worth P1 million. In his will, T gave A and B
one-fourth each, and X was given one-half. X has a child
Y.

(a) If X predeceases T, who gets his share?

Not Y, for a voluntary heir (X) cannot be represented. On

the other hand, A and B cannot get it by accretion for
they were not given any part of the free portion. Intestacy
then results, and A and B will get X’s share as intestate
heirs.

51. VIVY (b) If B on the other hand predeceases T, who

gets B’s
share?
A alone; not by accretion, but in his own right
for the same is his legitime.

52. Rules When Accretion Does Not Take Place

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.

ISRAI

53. ALYSSA EXAMPLE

T gave P10 million (deposited at the Citibank) to A and
P10 million (deposited at the Bank of the Philippine
Islands) to B. A and B are T’s friends. No substitute was
appointed. S, a sister of the testator, was given nothing.
If A repudiates his share, who will get it?

B will not get, there being no accretion since there was

an earmarking of share. Therefore, S, the sole intestate
heir, gets A’s share.

54. Accretion Among Devisees, Legatees, and

Usufructuaries

Art. 1023. Accretion shall also take place among

devisees, legatees and usufructuaries under the same
conditions established for heirs.

Note that the rules for accretion among heirs should be

followed.