Short answer. The legacy is without effect. Total loss of the thing during the testator's lifetime defeats the gift, and so does total loss after his death where the heir was not at fault. The rule speaks of total loss — a partial loss is not covered by it.
What the law says
The legacy or devise shall be without effect:
Civil Code, Article 957 — When a Legacy Is Without Effect. Read the full provision →
What the law says
If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault
Civil Code, Article 957 — When a Legacy Is Without Effect. Read the full provision →
Two windows, one condition attached to the second
The clause covers loss in two periods and does not treat them the same. Loss during the lifetime of the testator defeats the legacy without more; there is nothing to give, and nobody to answer for it. Loss after his death defeats the legacy only without the heir's fault. That qualifier is doing important work: it means the person obliged to deliver cannot escape the obligation through their own fault in letting the thing be lost.
The loss must be total
The wording is totally lost. A thing that has been damaged, diminished or partly destroyed has not been totally lost, and this ground does not reach it. That matters, because the neighbouring ground in the same article about alienation expressly deals with partial cases — where only part of the thing was alienated, the legacy fails only as to that part. The absence of any similar partial rule for loss is a deliberate contrast rather than an oversight.
A generic legacy is treated differently
The article ends with a qualification that changes the outcome for a whole class of legacies: Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of article 928. Art. 928 provides that the heir bound to deliver is liable in case of eviction where the thing is indeterminate and indicated only by its kind. The reason is straightforward — a legacy of a kind of thing rather than a specific object does not become impossible because one particular object perished.
Identify which kind of legacy you have
Everything turns on that distinction. If the will left you a specific, identified thing and it was totally lost in the testator's lifetime, the legacy is without effect. If the will left you something described only by its kind, the total loss of any particular item does not by itself end the entitlement, and the rule on eviction becomes relevant. This is general information about how the Code treats these situations, not advice on any particular will.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Raquel Estipona (Lelandlord E. Sto. Domingo) and Sps. Alberto Co and Lulu Co, G.R. No. 207407, September 29, 2021 — read the decision on LawPhil →
Related provisions
- Civil Code, Article 957 — When a Legacy Is Without Effect
- Civil Code, Article 928 — The Deliverer's Warranty