Validity and Effect of Legacy and Devise

Validity and Effect of Legacy/Devise

Thing owned in part by testator (Article 929)

General Rule: Conveys only interest or part owned by testator Exception: if testator otherwise provides – a.    He may convey more than what he owns - the state shld try to acquire the part or interest owned by other parties. If other parties are unwilling to alienate, the estate should give the legatee/devisee the monetary equivalent (analogy with Article 931) b.    He may convey less than what he owns (Article 794)

Thing owned by another (Articles 930-931)

General Rule: a.    If testator ordered acquisition of the thing - the order should be complied with. If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent b.    If testator erroneously believed that the thing belonged to him - legacy/device is void Exception: if testator acquire the thing onerously or gratuitously after making of the disposition, disposition is validated c.    If testator knew that the thing did not belong to him but did not order its acquisition - code is silent but disposition shld be considered valid (Balane & Tolentino) - there is an implied order to acquire & doubts must be resolved in favor of intestacy

Thing already owned to the legatee/devisee (Articles 932-933)	a.  If thing already belonged to legatee/devisee at time of execution of will – legacy/devise is void b.  If thing was owned by another person at time of making the will and thereafter it is acquired by legatee/devisee – 1.    If testator erroneously believed that he owned the thing – legacy /devise is void 2.    If testator was not in error - i.      If thing was acquired onerously by  legatee/devisee, the legatee/devisee  is  entitled to be reimbursed ii.     If thing was acquired gratuitously by  legatee/devisee  – nothing is due iii.    If thing was owned by testator at time will was made and  legatee/devisee  acquired the thing from him thereafter – law is silent (Balane: deemed revoked)
Legacy/Devise to remove an encumbrance over a thing belonging to testator (Article 932 par 2)	Valid, if the encumbrance can be removed for a consideration
Legacy/Devise of a thing pledged or mortgaged (Article 934)	The encumbrance must be removed by paying the debt unless the testator intended otherwise