Grandpa can only sell ‘metaphysical’ share of inherited property

Persida Acosta

Persida Acosta

Dear PAO,
My grandmother died intestate (not having made a will before death), leaving behind a parcel of land that she obtained by virtue of donation from her mother when she (my grandmother) was married to my grandfather. When she passed away, she was survived by her husband (my grandfather) and their two children (my uncle and my father). The property was never extra-judicially partitioned. A few years later, my grandfather allowed his friend to occupy a portion of that property. When my grandfather passed away, my uncle and my father opted to partition the property. So, they asked my grandfather’s friend to vacate the portion of the land he is occupying but he refused, saying he and my grandfather executed a deed of absolute sale pertaining to that portion of land. The fact is, they were not aware that my grandfather even entered into such transaction.

I just want to know if the heirs of my grandmother (my grandfather, uncle and father) are entitled to equal shares. Is it legally possible for my grandfather to execute such deed of absolute sale without the knowledge of his co-heirs? Lastly, what will happen if my grandfather sold more than what he is entitled to?

Dear Dodong,
As a rule, when a husband and a wife enter into a contract of marriage without a marriage settlement, or when the regime agreed upon by them is void, their property relations shall be governed by the system of absolute community of property (Article 75, Family Code of the Philippines). This shall consist of all the pieces of property owned by the spouses at the time of the celebration of the marriage or acquired thereafter, except those expressly excluded under the law. (Article 91, Id.) One of the categories of excluded pieces of property are those that are acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that such pieces of property be included in or form part of the community property. (Article 92, Id.)

Accordingly, the parcel of land that you mentioned formed part of your grandmother’s paraphernal property. Upon her demise, your grandfather, uncle and father inherited the same, being her compulsory heirs (Article 887, New Civil Code of the Philippines). Since your grandmother died intestate, her heirs are entitled to equal shares of the property. This is in consonance with Article 996 of the law, which states, “If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.”

Given that your grandfather, uncle and father did not resort to partition the property after the demise of your grandmother, they are deemed co-owners thereof. Correspondingly, they may use the property for the purpose for which it was intended, but in such a way as not to injure the interest of the co-ownership or prevent any co-owner from using it according to his/her rights. (Article 486, Id.) They may also alienate it, assign or mortgage it, or substitute another person in its enjoyment, except when personal rights are involved. The alienation or the mortgage, however, with respect to the co-owners, shall be limited to the portion that may be allotted to him in the division upon the termination of the co-ownership. (Article 493, Id.)

Thus, it is legally possible for your grandfather to have executed a deed of absolute sale with his friend without the knowledge of your uncle and father. But emphasis should be made on the fact that he can only sell or dispose his aliquot part or his metaphysical share of the property, never an exact portion thereof as the property was never partitioned prior to his death. If your grandfather sold more than his share to the property, the sale of such excess portion will have no binding effect on your uncle and father.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


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