OT-FINALS PDF

TEST I. In each of the following items there are two statements. Choose the letter that fits both statements. (30%) a. First statement is correct but the second statement is wrong. b. First statement is wrong but the second statement is correct. c. Both statements are correct. d....

TEST I. In each of the following items there are two statements. Choose the letter that fits both statements. (30%) a. First statement is correct but the second statement is wrong. b. First statement is wrong but the second statement is correct. c. Both statements are correct. d. Both statements are wrong. ANSWER STATEMENTS 1. A An action to collect a sum of money is a transmissible right. – TRUE Under ordinary circumstances death as the final cause for the transmission of successional right is applicable when one has been absent for at least five years. – FALSE 2. C A will is entirely inoperative and wholly ineffective until the death of the testator indicates the ambulatory character of a will. – TRUE Delegation to a third person of the mechanical act of drafting a will is beyond the purview of the prohibition. – TRUE 3. D A testator must be a natural person who is able to read and write. – FALSE A witness to the execution of a notarial will must know and understand its contents before signing each and every page thereof. – FALSE 4. A Acknowledgement before the notary public requires the presence of the testator and instrumental witnesses and of one another. – TRUE It is essential that the notary public reads and knows the contents of the will before making the acknowledgement. – FALSE 5. C A married woman may dispose by will her share of the conjugal partnership without the consent of her husband. – TRUE A married woman whose property relation with her husband is under the conjugal partnership of gains may accept a property donated by a cousin-in-law without the consent of her husband. – TRUE 6. A When the heir, devisee or legatee commits any of the acts of unworthiness which incapacitates the person to succeed, any testamentary disposition in favor of such heir, devisee or legatee is revoked by implication of law. – TRUE The doctrine of dependent relative revocation is a rule of presumed intention thus, it does not prevail as against actual evidence of the testator’s real intention. – FALSE 7. C An express prohibition to partition the hereditary estate for a period of 20 years is a valid burden on the legitime. – TRUE The testator may deprive his compulsory heirs of their legitime for a cause expressly provided for by law. – TRUE 8. C The legatee or devisee shall respect the right of the usufruct until it is extinguished if the thing bequeathed is burdened by the presence of an existing and lawful usufruct. – TRUE If the testator bequeathed or devised a property offered to secure the performance of the obligation of a building contractor, the estate must free the property given from the burden. – TRUE 9. B Heirs are solidarily payable for taxes payable on properties received by inheritance. – FALSE The payment of a legacy provided for in a will cannot be ordered by the court unless the estate of testator has been liquidated. – TRUE 10. B A compulsory heir is bound to give a sub- legacy to the extent of his legitime. – FALSE When the testator charges no one with a legacy or devise, all heirs shall be liable in the same proportion in which they may inherit. – TRUE 11. A If the legacy or devise is a burden on the estate itself, there is no warranty against hidden encumbrances, whether or not the legacy or devise is specific or generic. – TRUE If the legacy or devise to be given by the heir is a specific thing, the heir shall be liable in case of conviction. – FALSE 12. D If the thing bequeathed at the time of the execution of the will belonged to the legatee or devisee, the legacy or devise is valid and the legatee or devisee is entitled to a reimbursement of the value of the thing bequeathed. – FALSE A devise of indeterminate real property is valid whether or not there be immovable property of its kind in the estate. – FALSE 13. A The obligation of a compulsory heir to collate is applicable both in testamentary and legal succession. – TRUE Reserva troncal requires an express provision in a will obligating the reservor to reserve the property transferred for the benefit of relatives of the propositus. – FALSE 14. D The remedy of declaration of incapacity and recovery of inheritance from a disqualified heir prescribes in 10 years. – FALSE The right of redemption in favor of co- heirs may be exercised within one year from the time notice in writing of the sale by the co-heir/vendor. – FALSE 15. B An extrajudicial partition which disregards the provision of the will makes the partition annullable even if it was with the consent of all heirs. – FALSE Equality among compulsory heirs is the primary concern of collation and partition. – TRUE 16. A An illiterate may execute a will. – TRUE An illiterate may witness the execution of a will. - FALSE 17. D In the execution of a will, it will always requires three or more competent witnesses. – FALSE An undated will is ipso facto void. - FALSE 18. D A testator must be a natural person who is able to read and write. – FALSE A witness to the execution of a notarial will must know and understand its contents before signing each and every page thereof. - FALSE 19. D Probate proceedings is a proceeding in rem which prescribes in ten (10) years. – TRUE The disinheritance of a daughter affects the intrinsic validity of a will hence, should not be included in the probate order. - FALSE 20. D In simple substitution, heirs alternatively inherit from the testator. – FALSE Reserva Troncal requires an express provision in a will obligating the reservor to reserve the property transferred for the benefit of relatives of the propositus within the third degree. - FALSE 21. C When the heir, devisee or legatee commits any of the acts of unworthiness which incapacitates the person to succeed, any testamentary disposition in favor of such heir, devisee or legatee is revoked by implication of law. – TRUE Refusal to give support without justifiable cause is a ground for disinheritance common to all compulsory heirs. - TRUE 22. C A revoked will where an illegitimate child is acknowledged by the testator remains to be an authentic instrument for the purpose of recognition of the child. – TRUE The doctrine of dependent relative revocation is a rule of presumed intention thus, it does not prevail as against actual evidence of the testator’s real intention. - TRUE 23. D Donation to the surviving spouse during the lifetime of the decease spouse requires collation. – FALSE Donation to the spouse of a child during the lifetime of the parent-in-law is an  advance of the child’s legitime requiring collation. - FALSE 24. C Conviction of adultery or concubinage with the spouse of the testator automatically incapacitates a person to inherit from the testator and divest him of the inheritance already received. – TRUE A common law wife is without capacity to receive donation from her common law husband who is guilty of concubinage by reason of public interest. - TRUE 25. A The filing of the appropriate court action is one of the modes to repudiate an inheritance. – TRUE The execution of an affidavit by the wife during the lifetime of the husband renouncing all hereditary rights from her husband constitutes a valid renunciation. - FALSE 26. B A compulsory heir is bound to give a sub- legacy to the extend of his legitime. – FALSE When the testator charges no one with a legacy or devise, all heirs shall be liable in the same proportion in which they may inherit. - TRUE 27. D The remedy of declaration of incapacity and recovery of inheritance from a disqualified heir prescribes in 10 years. – FALSE The right of redemption in favor of co- heirs may be exercised within one year from the time notice in writing of the sale by the co-heir/vendor. - FALSE 28. A Legal redemption is a remedy if a co-heir sells to another co-heir of an undivided portion of the hereditary rights. – TRUE Recission is generally the proper remedy of an illegitimate child who has been preterited in the partition. - FALSE TEST II. Choose the LETTER that corresponds to the correct answer. (30%) 1. Atty. BILMOKO, a Filipino, executed a will while she was in Madrid, Spain. The attestation clause of the said will does not contain BILMOKO’s signature. It is valid under Spanish Law. At its probate in Manila, it is being opposed on the ground that the attestation clause does not contain BILMOKO’s signature. Is the opposition correct? a. Yes, because it is a fatal defect. b. Yes, the will is not valid under Philippine law. c. No, attestation clause is not an act of the testator. d. No, the governing law is Spanish law. 2. Ramon, a Filipino, executed a will in Manila, where he left his house and lot located at BF HOMES Paranaque in favor of his Filipino son, Ramgen. Ramon’s other children JR and Mona, both Thai nationals, dispute the bequest and plotted to kill Ramgen. Ramon learned of the plot, so he tore his will in two pieces out of anger. Which statement is most accurate? a. The act of tearing the will into two is immaterial because it is still readable. b. The act of tearing the will into two constitutes revocation. c. The act of tearing the will into two may amount to revocation if with intent to revoke. d. The act of tearing the will into two is immaterial. 3. If a will is executed by one who was born a Filipino citizen, but became a naturalized Japanese citizen at the time of his death, what law will govern its testamentary provisions if the will is executed in China and the property being disposed of is located in Indonesia? a. Chinese Law b. Indonesia Law c. Philippine Law d. Japanese Law 4. X, a Spanish national, residing in Tokyo, Japan executed a will in San Francisco, California, U.S.A, which he kept in a bank at Zurich, Switzerland until his death. To be validly probated in the Philippines and for X’s estate in this country be distributed in conformity with the provisions of his will, the will must be executed in accordance with the formalities required in the following country, except: a. Madrid, Spain b. Manila, Philippines c. Tokyo, Japan d. Zurich, Switzerland 5. A French national revokes his will in Japan where he is domiciled. He the changed his domicile to the Philippines where he died. The revocation of his will in Japan is valid under Japanese Law but  invalid under Philippine Law. The affected heir is a Malaysian national residing in the Philippines. What law will apply? a. Japanese Law b. French Law c. Philippine Law d. Malaysian Law 6. H and W in articulo mortis on April 15, 2020. On June 30, 2020, H in a car accident died intestate leaving W alone with an estate of Php 2.4M. How much is the intestate share of W? a. Php.6M b. Php.8M c. Php 1.2M d. Php 2.4M 7. If by reason of her illness, W dies intestate on June 30, 2020 leaving H alone with an estate of Php 2.4M, how much would H get? a. Php.6M b. Php.8M c. Php 1.2M d. Php 2.4M 8. Which ground for disinheritance is common to all compulsory heirs? a. Conviction of a crime which carries with it the penalty of civil interdiction b. Loss of parental guidance c. Maltreatment of the testator by word or deed d. Refusal to give support without justifiable cause 9. The following are the ways of repudiating an inheritance, except: a. By a public instrument b. By an overt act c. By an authentic document d. By filing the appropriate court action 10. After S had attempted to kill F, his father, and had been duly convicted therefor, F in his will instituted A, B and C, his friends, without providing anything for S who predeceased F. Which statement is correct? a. F impliedly pardoned S since there is no express disinheritance in the will b. The institution of A, B and C is effective without prejudice to the right of representation c. If F and S reconcile a written condonation is necessary to extinguish the unworthiness of S d. The preterition of S annuls the institution of A, B and C 11. The following compulsory heirs are required to collate any property received gratuitously during the lifetime of the decedent, except:  a. Adopted child b. Illegitimate child c. Legitimate child d. Surviving spouse 12. In intestate succession, the following may inherit from a decedent, except: a. Daughter of a grandaunt b. Grandniece c. Great grandfather d. Second cousin 13. Reymart was adopted as an infant by Mel and Jay. Reymart died intestate without issue and unmarried. His biological mother, Lutgarda, came forward to claim a part of Reymart’s estate. What portion of Reymart’s estate should go to Lutgarda? a. ½ b. 1/3 c. ¼ d. Nothing 14. Menardo caught his wife Rita having sexual intercourse with his brother Ricky at the latter’s condominium. Rita and Ricky were subsequently convicted of adultery. A few months after the court decision, Menardo died without a will and survived by Rita, Ricky and two first cousins Carla and Darla. Who shall inherit? a. Ricky alone b. Rita alone c. Carla and Darla d. Ricky, Carla and Darla 15. Mr. Enriquez, a rich childless bachelor, died intestate survived by six nieces and nephews: Andrew and Andre, sons of his only sister Astrid; Bianca, daughter of his brother Benjamin; Carina, Charina and Carlo, children of his brother Calvin. If the estate is Php 9M, what shall be the distribution? a. Andrew and Andre, 1.5M each; Bianca, 3M; Carina, Charina and Carlo, 1M each b. Andrew and Andre, 750,000; Bianca, 1.5M; Carina, Charina and Carlo, 500,000 each; Free portion 4.5M c. 1.5 each niece/nephew d. All nieces/nephews gets nothing because their parents predeceased Mr. Enriquez TEST III. Answer the following briefly but responsively. (40%) 1. A. Richard and Dawn, legally married were blessed with an only child, Aga. Aga had an illicit relationship with Arlene and out of which, they begot Nino. Aga predeceased Richard, Dawn and Nino. Before the death of Richard, he executed a will which when submitted to probabte was opposed by Nino on the ground that he should be given the share of his father, Aga. Is the opposition of Nino valid? Decide with reason. No, the opposition of Nino is not valid. According to the Civil Code, an illegitimate child has not 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 manned from the illegitimate child. In the case at bar, Nino, as an illegitimate child, cannot claim inheritance from the parents of his father since the above-mentioned provision strictly prohibits illegitimate children to inherit from the relatives of his father or mother. Therefore, Nino’s opposition to the probate does not have any merit and should be considered invalid. B. Would your answer be the same if Aga and Arlene were legally married? Why? No, my answer will not be the same should Aga and Arlene be legally married. According to the Civil Code, 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. Wherein, if Aga and Arlene were married, their son, Nino will be considered as legitimate child vesting him with the right of succession ab intestato as provided in the above-mentioned provision. Hence, Nino’s contention may now be considered as valid.  2. Don Lucas died testate survived by: 1) V, W, Y and Z, his legitimate children; 2) A and B, legitimate children of X, a legitimate son of Doc Lucas who predeceased him; 3) C and D, legitime children of Y; E and F, legitimate children of Z. In Don Lucas’ will, he instituted his five children as heirs to the entire disposable portion of his hereditary estate in the proportion of 1/5 (V), 1/10 (W), 1/10 (X), 1/10 (Y) and ½ (Z). Y by an act of unworthiness is incapacitated to inherit from Don Lucas, while Z repudiated his inheritance. If the net value of the hereditary estate is P12M, how shall it be divided? Legitime Repudiated FREE Predecease Incapacity Repudiated Ultimate Legitime of Z PORTION of X; Right of Y; Right free Distribution (equally: Own Right of of portion of 1,200,000) Accretion Accretion Z; Right of 600,000 600,000 3,000,000 Representation (2:1) (V,W) (2:1) (2:1) V 1,2000,000 300,000 1,200,000 400,000 400,000 2,000,000 5,500,000 W 1,2000,000 300,000 600,000 200,000 200,000 1,000,000 3,500,000 (X) 600,000 150,000 x x x x 750,000 A B 600,000 150,000 x x x x 750,000 (Y) 600,000 150,000 x x x x 750,000 C D 600,000 150,000 x x x x 750,000 (Z) x E F x TOTAL: P12,000,000 NOTE: FREE PORTION RATION SHARE IN THE FREE PORTION V 1/5 2/10 1,200,000 W 1/10 1/10 600,000 X (Predecease) 1/10 1/10 600,000 Y (Incapacity) 1/10 1/10 600,000 Z (Repudiate) 1/2 5/10 3,000,000 TOTAL FREE PORTION: 6,000,000  3. If Don Lucas died intestate, how shall the hereditary estate of P12M be divided? ESTATE 12/5 REPUDIATED ULTIMATE = 2.4M each BY Z = 2.4M DISTRIBUTION (equally) V 2,4000,000 1,200,000 3,600,000 W 2,400,000 1,200,000 3,600,000 X A 1,200,000 1,200,000 B 1,200,000 1,200,000 Y C 1,200,000 1,200,000 D 1,200,000 Z E x F x V - 2.4M in his own right 1.2M by right of accretion W - 2.4M in his own right 1.2M by right of accretion A - 1.2M by right of representation B - 1.2M by right of representation C - 1.2M by right of representation D - 1.2M by right of representation TOTAL = 12M  4. Distinguish preterition in the institution of compulsory heirs from preterition of compulsory heirs in the partition as to: a) effect; and b) remedy. Preterition in the institution of Preterition of Compulsory Heirs Compulsory Heirs in the Partition EFFECT A partition made with preterition The effect is to annul entirely the of any of the compulsory heirs institution of heirs; but legacies shall not be rescinded, unless it and devises shall be valid insofar be proved that there was a bad as they are not inofficious. 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. REMEDY Annulment of institution; and Recission if there is bad faith or Collation if the donation impairs fraud on the part of the other the legitime. persons interested.  5. S, single, leaving an estate of P5M and with the following surviving heirs. A – aunt, sister of S’ father with whom S lived since she was a child and treated as if her mother; B – grandmother of the maternal side; C – brother; and D – nephew, son of T, as decease sister. Only B, the grandmother of the maternal side will receive the whole P5M, under rule on proximity which provides that in every inheritance, the relative 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 in equal shares, subject to the provisions of Article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines. In the case at bar, S is single and there is no descending direct line, so the preference will shift to direct ascending line, in which, B, the grandmother is the only available ascending relative applying the rule on proximity.  6. W, widower, leaving an estate of P10M and with the following surviving heirs: L, M and N – legitimate children; O – legitimate daughter of S, deceased son of W with A, a woman not his wife; P – illegitimate son of T, deceased daughter of W with B, a woman not his wife; Q – son of W with C, a woman not his wife; R – daughter of W with D, a woman not his wife. We first get the ½ legitime of the compulsory heirs which is P5M. Then we divide P5M by three which is 1,666,666.67. L, M and N will have 1,666,666.67 each. Now, we will get the share of O, P, Q and R which is ½ of 1,666,666.67 resulting to 833,333.33. So, O, P, Q and R will receive 833,333.33 each. 1,666,666.67 x 3 = 5,000,000 (legitimate children) 833,333.33 x 4 = 3,333,333 (illegitimate children and grandchildren) 5,000,000 + 3,333,333 = 8,333,333 (total distributed share) 10,000,000 – 8,333,333 = 1,666,667 (free portion) The distribution of the free portion is computed using concurrence theory which means that the said 2:1 will depend on the number of children/descendants. In this case, since there are 3 LC and 4 IL/GC, the distribution shall be 2:2:2:1:1:1:1. L, M and N (LC) = 333,333.40 each O, P, Q and R = 166,666.70 each Under Article 983, if the illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 896 which provides that the share of an illegitimate child shall be equivalent to ½ of the legitimate of each legitimate child. Moreover, under Article 972 in cases when the children of the decedent predeceased him, the right of representation takes place in the direct descending line. In the present case, L, M, and N as legitimate children of the decedent inherit by their own right; O as an illegitimate granddaughter of the decedent and P as an illegitimate grandson of the decedent shall inherit by right of representation; and Q as an illegitimate son of the decedent and R as an illegitimate daughter of the decedent shall also inherit by their own right.  7. Myra and her son Joel had an altercation regarding the latter's choice of a woman to marry. Out of frustration and anger, the Myra slapped Joel on the face with insulting words. Joel left the house and did not return. Joel executed a will disinheriting his mother on the ground of maltreatment by deed and by words. Out of a ₱5M estate Joel gave ₱2M to his friend Gary and the rest of his estate to his wife. Upon the death of Joel, his wife had Joel's will probated. a. If you are the judge of the probate court, will you admit Joel's will? No, I will annul the institution of heirs insofar as it may prejudice the person disinherited, but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. The disinheritance of Myra is ineffective because it was for a cause not provided for by law. Myra is restored to her position as if the testator had not disinherited him. She will now be able to receive her legitime as a compulsory heir. Article 919 of the civil code provides only for Maltreatment of the testator by word or deed, by the child or descendant. Nowhere does it say that the maltreatment should be committed by the ascendant. This is a case of Ineffective Disinheritance, take note that maltreatment by an ascendant of a descendant does not constitute a ground for the descendant to disinherit the ascendant, for while it may be an ABUSE, it is generally in the exercise of a power. The reverse is however repugnant to natural law, and is therefore a ground for disinheritance. The institution of heirs will be partially annulled insofar as it may impair Myra’s legitime. Art. 918 further provides that the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. So, Pursuant to Art. 918 of the civil code, the legacy to Joel’s friend Gary shall be reduced to 1,250,000. Myra as legitimate ascendant gets her legitime which should be 2,500,000 which is half of the hereditary estate, and for the surviving spouse of Joel will be one-fourth of the hereditary estate to be taken out from the free portion which is 1,250,000, while Myra’s legitime should. (art. 893) b. If the probate court admits Joel's will, what right of recourse if any, does Myra have against Joel's wife and Gary? If the probate court admits Joel’s will. Then Myra, the heir supposed to be disinherited shall be given her legitime. Myra as legitimate ascendant gets her legitime which should be 2,500,000 which is half of the hereditary estate, and for the surviving spouse of Joel will be one-fourth of the hereditary estate to be taken out from the free portion which is 1,250,000. (art. 893) 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. Gary’s legacy of 2M may be reduced by 750,000, and the testamentary disposition in favor of Joel’s surviving spouse by 1,750,000 in order to satisfy the legitime belonging to Myra, which is 2,500,000.  8. Oscar and Lily, legally married were blessed with an only child Mara. Mara had an illicit relationship with Cardo and out of which, they begot Niño. Mara predeceased Oscar, Lily and Niño. Before the death of Oscar, he executed a will which when submitted to probate was opposed by Niño on the ground that he should be given the share of his mother, Mara. a. Is the opposition of Niño valid? No, Nino’s opposition is not correct. Nino cannot inherit from Oscar in representation of his mother, Mara. The representative must not only be a legal heir of the person he is representing but he must also be a legal heir of the decedent he seeks to inherit from. 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. Nino cannot represent Mara in the succession from Oscar’s estate. Because the illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his mother, Mara or vice versa. While Nino is a legal heir of Mara, he is not a legal heir of Oscar because an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother. (Art. 992) Hence, Nino’s opposition is invalid. b. Would your answer be the same if Mara and Cardo were legally married? No, the answer would not be the same. If Mara and Cardo were legally married, that makes Nino a legitimate child. The representative must not only be a legal heir of the person he is representing but he must also be a legal heir of the decedent he seeks to inherit from. Here, Nino can represent Mara in the succession from Oscar’s estate. Because as a legitimate child, he has a right to inherit ab intestato from the legitimate children and relatives of his mother, Mara or vice versa. TEST IV. Differentiate the following. A. When surviving alone, the legitime of the surviving spouse from his/her intestate share in the estate of the deceased spouse. LEGITIME OF SS: Article 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. INTESTATE SHARE OF SS: Article 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. Hence, when the widow/widower/spouse survives alone, as to testamentary succession, his or her legitime constitutes half of the estate; as to intestate succession, his or her share shall be the entire estate. B. Inheritance per stirpes from inheritance per capita. Inheritance per stirpes is made when one sole descendant or a group of descendants represent a person in intestate. The sole representative or group of representatives are counted as one. In inheritance per capita, the estate is divided into as many equal parts as there are persons to succeed. C. Preterition from valid disinheritance. Preterition under Article 854 provides that the omission of an heir may be intentional or unintentional, and may be with or without cause. On the other hand, valid disinheritance under Article 916 requires that the disinheritance be always intentional, and that the cause must always be stated in the will, it must be true and legal. In preterition, the omitted heir inherits because the omission annuls the institution of heirs, while the disinherited heir in a valid disinheritance inherits nothing. Preterition may exist with or without a will, but for disinheritance to be valid, it must be in a will. The institution of heirs is always void in the case of preterition, except when the preterited heir predeceases the testator. On the other hand, the institution of heirs in a valid  disinheritance may be valid provided that all the requirements of the law are followed. D. The right of accretion to take place in testamentary succession from accretion to take place in intestate succession. 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 (Article 1016). In legal succession, the right of accretion takes place only when a co-heir repudiates the inheritance. (Art. 1018)