Order of distribution.
SEC. 753. Order of distribution. — After payment of the debts, funeral charges, and expenses of administration, and the allowances, if any, made for the expense of maintenance of the family of the deceased, the court shall assign the residue of the estate to the persons entitled to the same, and in its order the court shall name the persons and proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession: Provided, however, That nothing in this Act contained shall be construed to alter the existing Spanish law as to the restriction of the right of a testator to disinherit his children or other relatives.
Parties interested may have order.
SEC. 754. Parties interested may have order. — Such order may be made on the application of the executor or administrator, or of a person interested in the estate; but the heirs, devisees, or legatees, shall not be entitled to an order for their share, until the payment of the debts and allowances mentioned in the preceding section, and the several expenses there mentioned have been made or provided for, unless they give a bond with such surety or sureties as the court directs, to secure the payment of such debts, expenses, or allowances, or any part thereof as remain unpaid or unprovided for, and to indemnify the executor or administrator against the same.
Share of child born after making will.
SEC. 755. Share of child born after making will. — When a child of a testator is born after the making of a will, and no provision is therein made for him, such child shall have the same share in the estate of the testator as if he had died intestate; and the share of such child shall be assigned to him as in cases of intestate estates, unless it is apparent from the will that it was the intention of the testator that no provision should be made for such child.
Share of child or issue of child omitted from will.
SEC. 756. Share of child or issue of child omitted from will. — When a testator omits to provide in his will for any of his children, or for issue of a deceased child, and it appears that such omission was made by mistake, or accident, such child, or the issue of such child, shall have the same share in the estate of the testator as if he had died intestate, to be assigned to him as in the case of intestate estates.
From what part of estate such shares taken.
SEC. 757. From what part of estate such shares taken. — When a share of a testator's estate is assigned to a child born after the making of the will, or to the child or issue of a child omitted in the will, the same shall first be taken from the estate not disposed of by the will, if there is any, and if that is not sufficient so much as is necessary shall be taken from the devisees or legatees in proportion to the value of the estate they respectively receive under the will; but if the obvious intention of the testator as to some specific devise or bequest, or other provision of the will, would thereby be defeated, such specific devise, legacy, or provision may be exempted from such apportionment and a different apportionment adopted, in the discretion of the court.
Devisee dying before testator.
SEC. 758. Devisee dying before testator. — When a devise or a legacy is made to a child or other relation to the testator, and the devisee or legatee dies before the testator, leaving issue surviving the testator, such issue shall take the estate so given as the devisee or legatee would have done, if he had survived the testator, unless a different disposition is required by law.
Share of person absent and unheard of.
SEC. 759. Share of person absent and unheard of. — If a person entitled to a distributive share of the estate of a deceased person is absent and unheard of for fifteen years, five years of which are after the death of such deceased person, or is absent and unheard of for a period of twenty-five years, two years of which are after such death, the court may order the share of such absent person distributed among his lineal heirs, if he has any, otherwise among the heirs of such deceased person; but if such absent person proves to be alive he shall be entitled to his estate notwithstanding such distribution, and may recover any portion thereof which anyone has received under such order; and before an order is made for the payment or distribution of any money or estate herein authorized, the court shall cause the same notice to be given as upon the settlement of an administrator's account, and such other notice, by publication or otherwise, as the court deems proper.
Advancement to lineal heirs.
SEC. 760. Advancement to lineal heirs. — Estate, real or personal, given by the intestate in his lifetime to a child or lineal descendant, shall be reckoned toward the share of such heir, and for that purpose shall be considered a part of the estate of the intestate, under the following circumstances only:
1. When in the gift or grant it is expressed to be an advancement;
2. When such estate is charged to the child or lineal descendant, in writing, by the deceased upon his books or papers;
3. When such estate is acknowledged as such by the child or lineal descendant in writing;
4. When personal estate is delivered expressly as advancement before two witnesses requested to take notice of it. If the amount so advanced exceeds the share of the heir, he shall be excluded from any further share in the estate; but he shall not be liable to refund any part of the amount so advanced; and if the advancement is less than the share of such heir, he shall receive such further sum as, with such advancement, will be equal to his legal share in the estate. If the amount so advanced is in real estate, the same shall be set off, first, toward the heir's share of real estate, and if more than his share of real estate, the balance shall be set off toward his share of personal estate, and if the advancement is in personal estate, the same shall be set off, first, toward the heir's share in the personal estate, then toward his share in the real estate. But if the heirs consent, a different application of the advancement may be made.
If the child, or other lineal descendant, to whom such advancement is made, dies before the intestate, the advancement shall be reckoned toward the share of the representative of such child, or other lineal descendant, as it would be reckoned toward the share of the heir, if living.
Where the value of the advancement is expressed in the conveyance, or in the charge of the same, or in the acknowledgment of the person receiving it, or by the intestate at the time of delivering it before two witnesses, such advancement shall be taken to be of the value so expressed; otherwise it shall be estimated according to the value at the time of making it.
Questions as to advancement to be determined by court.
SEC. 761. Questions as to advancement to be determined by court. — Questions as to advancement made, or alleged to have been made, by the deceased, to any heirs or lineal descendants, may be heard and determined by the court having jurisdiction of the estate, and shall be specified in the decree assigning the estate and in the warrant to the committee; and the final decree of the court, either originally or on appeal, shall be binding on the person interested in the estate.
Partition of estate already assigned.
SEC. 762. Partition of estate already assigned. — Where the real estate assigned to two or more heirs, devisees, or legatees is in common and undivided, and their respective shares are not separated and distinguished, partition and distribution of the same, wherever situated, may be made, upon application to the court or judge having jurisdiction of the estate by any party in interest, by petition for that purpose. Upon the filing of the petition the court or judge shall appoint a committee to make the partition, and the proceedings of such committee, and of the court in its action upon the report of the committee, shall be in all respects the same as those in this Code provided for partition of real estate by action. Such partition may be made although some of the original heirs or devisees have conveyed their shares to other persons; and such shares shall be set to the persons holding the same as they would have been to the heirs or devisees. The whole estate may be assigned to one or more of the heirs or may be sold under the directions of the court as provided in this Code in relation to partition of real estate by action. The fees of the committee shall be the same as those provided in this Code for committees for partition of real estate by action.
Expenses of partition may be paid from the estate.
SEC. 763. Expenses of partition may be paid from the estate. — If, at the time of partition or distribution of the estate, the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for that purpose, the expenses of such partition or distribution may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interests in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying, for the sum assessed.
Recording the decrees of partition of estate.
SEC. 764. Recording the decrees of partition of estate. — Certified copies of final orders of the court, relating to the estate or the partition thereof, shall be recorded in the registry of land titles of the province where the land is situated.
Source: Supreme Court E-Library, Republic of the Philippines. Philippine laws are public documents (works of the government).
