Succession - SJBPrior | 1

SECOND DIVISION
G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,
Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:
The main issue in this appeal is the manner of partitioning the testate estate of Jose
Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron
de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion
Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in Paris,
while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator
provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only
his widow as compulsory heir. His will was admitted to probate by the Court of First
Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate. In due time she submitted an inventory of the estate as
follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila.............................................................
P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00
por accion
................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por accion
..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co..............................................................................................
2,350.73
TOTAL..............................................................
P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO...........................................
P507,976.97
The testamentary dispositions are as follows:
A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas
menores de edad, residentes en Manila, I.F., calle 'Alright, No. 1818,
Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion
vulgar a favor de sus respectivos descendientes, y, en su defecto, con
sustitucion vulgar reciprocal entre ambos.
El precedente legado en nuda propiedad de la participacion indivisa
de la finca Santa Cruz Building, lo ordena el testador a favor de los
legatarios nombrados, en atencion a que dicha propiedad fue
creacion del querido padre del otorgante y por ser aquellos
continuadores del apellido Ramirez,
B.Y en usufructo a saber:
Succession - SJBPrior | 2

a. En cuanto a una tercera parte, a favor de la esposa del testador,
Da. Marcelle Ramirez, domiciliada en IE PECO, calle del General
Gallieni No. 33, Seine Francia, con sustitucion vulgar u fideicomisaria
a favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son
Rapina Avenida de los Reyes 13,
b.Y en cuanto a las dos terceras partes restantes, a favor de la
nombrada Da. Wanda de Nrobleski con sustitucion vulgar v
fideicomisaria a saber:
En cuanto a la mitad de dichas dos terceras partes, a favor de D.
Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y encuanto
a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San
Luis Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente
ordinadas, las usufiructuarias nombradas conjuntamente con los nudo
propietarios, podran en cualquier memento vender a tercero los
bienes objeto delegado, sin intervencion alguna de los titulares
fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the widow
'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go
to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the
free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with
a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions
for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's
usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to
Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the
testator; (b) that the provisions for fideicommissary substitutions are also invalid because
the first heirs are not related to the second heirs or substitutes within the first degree, as
provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property
in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article
III of the Philippine Constitution; and that (d) the proposed partition of the testator's
interest in the Santa Cruz (Escolta) Building between the widow Marcelle and the
appellants, violates the testator's express win to give this property to them Nonetheless,
the lower court approved the project of partition in its order dated May 3, 1967. It is this
order which Jorge and Roberto have appealed to this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of the estate in full
ownership. They admit that the testator's dispositions impaired his widow's legitime.
Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she
or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone
survived the deceased, she is entitled to one-half of his estate over which he could impose
no burden, encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par.
2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants question and
justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle
because the testament provides for a usufruct in her favor of one-third of the estate. The
court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio"
as her legitime and which is more than what she is given under the will is not entitled to
have any additional share in the estate. To give Marcelle more than her legitime will run
counter to the testator's intention for as stated above his dispositions even impaired her
legitime and tended to favor Wanda.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment of another heir so
that he may enter into the inheritance in default of the heir originally instituted." (Art.
857, Civil Code. And that there are several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.)
According to Tolentino, "Although the Code enumerates four classes, there are really only
two principal classes of substitutions: the simple and the fideicommissary. The others are
merely variations of these two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to
substitute the heir or heirs instituted in case such heir or heirs should
die before him, or should not wish, or should be incapacitated to
accept the inheritance.
A simple substitution, without a statement of the cases to which it
refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which the
fiduciary or first heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally
instituted, and provided further that the fiduciary or first heir and the
second heir are living at time of the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect of the
legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor
Succession - SJBPrior | 3

de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal
entre ambos.
The appellants do not question the legality of the substitution so provided. The appellants
question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in
connection with the one-third usufruct over the estate given to the widow Marcelle
However, this question has become moot because as We have ruled above, the widow is
not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with
Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and
Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda survived the
testator or stated differently because she did not predecease the testator. But dying
before the testator is not the only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra.
Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in
their claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to
Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary
substitution "provided such substitution does not go beyond one degree from the heir
originally instituted."
What is meant by "one degree" from the first heir is explained by Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation,
substitution, or transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this point of view, there
can be only one tranmission or substitution, and the substitute need
not be related to the first heir. Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as generation, and the present
Code has obviously followed this interpretation. by providing that the
substitution shall not go beyond one degree "from the heir originally
instituted." The Code thus clearly indicates that the second heir must
be related to and be one generation from the first heir.
From this, it follows that the fideicommissary can only be either a
child or a parent of the first heir. These are the only relatives who are
one generation or degree from the fiduciary (Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits
"that the testator contradicts the establishment of a fideicommissary substitution when he
permits the properties subject of the usufruct to be sold upon mutual agreement of the
usufructuaries and the naked owners." (Brief, p. 26.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in favor of Wanda
is void because it violates the constitutional prohibition against the acquisition of lands by
aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private agricultural
land shall be transferred or assigned except to individuals,
corporations, or associations qualified to acquire or hold lands of the
public domain in the Philippines. (Art. XIII.)
The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional provision which enables aliens to
acquire private lands does not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien would be able to circumvent the
prohibition by paying money to a Philippine landowner in exchange for a devise of a piece
of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a
usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the
vesting of title to land in favor of aliens which is proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered
distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked
ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of
Juan Pablo Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.
SO ORDERED.



Succession - SJBPrior | 4

EN BANC

DECISION

January 31, 1982

Palacios vs Ramirez 111 SCRA 704

The main issue in this appeal is the manner of partitioning the testate estate of Jose
Eugenio Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron
de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his companion
Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris,
while the companion Wanda is an Austrian who lives in Spain. Moreover, the testator
provided for substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only
his widow as compulsory heir. His will was admitted to probate by the Court of First
Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate. In due time she submitted an inventory of the estate as
follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.?En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad,
residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D. Jose Ma.
Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y, en su
defecto, con sustitucion vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca Santa Cruz
Building, lo ordena el testador a favor de los legatarios nombrados, en atencion a que
dicha propiedad fue creacion del querido padre del otorgante y por ser aquellos
continuadores del apellido Ramirez,

B.?Y en usufructo a saber: ?

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle Ramirez,
domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia, con sustitucion
vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma de Mallorca, Son
Rapina Avenida de los Reyes 13,

b.?Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da. Wanda de
Nrobleski con sustitucion vulgar v fideicomisaria a saber:?

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski,
de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a favor de su sobrino,
D. Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las
usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en cualquier
memento vender a tercero los bienes objeto delegado, sin intervencion alguna de los
titulares fideicomisaarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the widow
Succession - SJBPrior | 5

'en pleno dominio" in satisfaction of her legitime; the other part or "free portion" shall go
to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the
free portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with
a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions
for vulgar substitution in favor of Wanda de Wrobleski with respect to the widow's
usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to
Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the
testator; (b) that the provisions for fideicommissary substitutions are also invalid because
the first heirs are not related to the second heirs or substitutes within the first degree, as
provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property
in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article
III of the Philippine Constitution; and that (d) the proposed partition of the testator's
interest in the Santa Cruz (Escolta) Building between the widow Marcelle and the
appellants, violates the testator's express win to give this property to them Nonetheless,
the lower court approved the project of partition in its order dated May 3, 1967. It is this
order which Jorge and Roberto have appealed to this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full
ownership. They admit that the testator's dispositions impaired his widow's legitime.
Indeed, under Art. 900 of the Civil Code "If the only survivor is the widow or widower, she
or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone
survived the deceased, she is entitled to one-half of his estate over which he could impose
no burden, encumbrance, condition or substitution of any kind whatsoever. (Art. 904, par.
2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and
justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle
because the testament provides for a usufruct in her favor of one-third of the estate. The
court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio"
as her legitime and which is more than what she is given under the will is not entitled to
have any additional share in the estate. To give Marcelle more than her legitime will run
counter to the testator's intention for as stated above his dispositions even impaired her
legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so
that he may enter into the inheritance in default of the heir originally instituted." (Art.
857, Civil Code. And that there are several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.)
According to Tolentino, "Although the Code enumerates four classes, there are really only
two principal classes of substitutions: the simple and the fideicommissary. The others are
merely variations of these two." (111 Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish, or should
be incapacitated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise
the three mentioned in the preceding paragraph, unless the testator has otherwise
provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir the
whole or part of inheritance, shall be valid and shall take effect, provided such substitution
does not go beyond one degree from the heir originally instituted, and provided further
that the fiduciary or first heir and the second heir are living at time of the death of the
testator.

It will be noted that the testator provided for a vulgar substitution in respect of the
legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor
de sus respectivos descendientes, y, en su defecto, con substitution vulgar reciprocal
entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants
question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in
connection with the one-third usufruct over the estate given to the widow Marcelle
However, this question has become moot because as We have ruled above, the widow is
not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with
Wanda's usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and
Horace v. Ramirez.

They allege that the substitution in its vulgar aspect as void because Wanda survived the
testator or stated differently because she did not predecease the testator. But dying
before the testator is not the only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra.
Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in
their claim that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to
Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary
Succession - SJBPrior | 6

substitution "provided such substitution does not go beyond one degree from the heir
originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or
transmission. The Supreme Court of Spain has decidedly adopted this construction. From
this point of view, there can be only one tranmission or substitution, and the substitute
need not be related to the first heir. Manresa, Morell and Sanchez Roman, however,
construe the word "degree" as generation, and the present Code has obviously followed
this interpretation. by providing that the substitution shall not go beyond one degree
"from the heir originally instituted." The Code thus clearly indicates that the second heir
must be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the
first heir. These are the only relatives who are one generation or degree from the
fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits
"that the testator contradicts the establishment of a fideicommissary substitution when he
permits the properties subject of the usufruct to be sold upon mutual agreement of the
usufructuaries and the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda
is void because it violates the constitutional prohibition against the acquisition of lands by
aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional provision which enables aliens to
acquire private lands does not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien would be able to circumvent the
prohibition by paying money to a Philippine landowner in exchange for a devise of a piece
of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a
usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the
vesting of title to land in favor of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered
distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked
ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of
Juan Pablo Jankowski and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.

SO ORDERED.

EN BANC

February 13, 1930

G.R. No. 31703
CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee,
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of
Manila, defendants-appellants.

L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.

ROMUALDEZ, J.:

The amount of P21,428.58 is on deposit in the plaintiff's name with the association known
as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria
Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also
deceased, represented by his son, the defendant Mariano Garchitorena.

And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez
Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of
execution issued in said judgment, levied an attachment on said amount deposited with
La Urbana.

The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the
decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution
of said judgment on the sum so attached. The defendants contend that the plaintiff is the
decedent's universal heiress, and pray for the dissolution of the injunction.

The court below held that said La Urbana deposit belongs to the plaintiff's children as
fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.
Succession - SJBPrior | 7


The defendants insist in their contentions, and, in their appeal from the decision of the
trial court, assign the following errors:

1. The lower court erred in holding that a trust was created by the will of Doa Ana Maria
Alcantara.

2. The lower court erred in concluding and declaring that the amount of P21,428.58
deposited with La Urbana is the property of the children of the plaintiff as "herederos
fidei-comisarios."

3. The lower court erred in making the injunction permanent and condemning defendant
to pay the costs.

The question here raised is confined to the scope and meaning of the institution of heirs
made in the will of the late Ana Maria Alcantara already admitted to probate, and whose
legal force and effect is not in dispute.

The clauses of said will relevant to the points in dispute, between the parties are the
ninth, tenth, and eleventh, quoted below:

Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law,
Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living
in this same house with me, I institute her as my sole and universal heiress to the
remainder of my estate after the payment of my debts and legacies, so that upon my
death and after probate of this will, and after the report of the committee on claims and
appraisal has been rendered and approved, she will receive from my executrix and
properties composing my hereditary estate, that she may enjoy them with God's blessing
and my own.

Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall
pass unimpaired to her surviving children; and should any of these die, his share shall
serve to increase the portions of his surviving brothers (and sisters) by accretion, in such
wise that my estate shall never pass out of the hands of my heiress or her children in so
far as it is legally possible.

Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her
children are still in their minority, I order that my estate be administered by my executrix,
Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his default, by
his son Ramon Salinas; but the direction herein given must not be considered as an
indication of lack of confidence in my nephew Joaquin Perez Alcantara, whom I relieve
from the duties of administering my estate, because I recognize that his character is not
adapted to management and administration.

The appellants contend that in these clauses the testatrix has ordered a simple
substitution, while the appellee contends that it is a fideicommissary substitution.

This will certainly provides for a substitution of heirs, and of the three cases that might
give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted
heiress before the testatrix would in the instant case give place to such substitution,
inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a
matter of fact, however, clause XI provides for the administration of the estate in case the
heiress instituted should die after the testatrix and while the substitute heirs are still under
age. And it is evident that, considering the nature of simple substitution by the heir's
death before the testator, and the fact that by clause XI in connection with clause X, the
substitution is ordered where the heiress instituted dies after the testatrix, this cannot be
a case of simple substitution.

The existence of a substitution in the will is not and cannot be denied, and since it cannot
be a simple substitution in the light of the considerations above stated, let us now see
whether the instants case is a fideicommissary substitution.

In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and
provides that upon her death (the testatrix's) and after probate of the will and approval of
the report of the committee on claims and appraisal, said heiress shall receive and enjoy
the whole hereditary estate. Although this clause provides nothing explicit about
substitution, it does not contain anything in conflict with the idea of fideicommissary
substitution. The fact that the plaintiff was instituted the sole and universal heiress does
not prevent her children from receiving, upon her death and in conformity with the
express desire of the testatrix, the latter's hereditary estate, as provided in the following
(above quoted) clauses which cannot be disregarded if we are to give a correct
interpretation of the will. The word sole does not necessarily exclude the idea of
substitute heirs; and taking these three clauses together, such word means that the
plaintiff is the sole heiress instituted in the first instance.

The disposition contained in clause IX, that said heiress shall receive and enjoy the estate,
is not incompatible with a fideicommissary substitution (it certainly is incompatible with
the idea of simple substitution, where the heiress instituted does not receive the
inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of
fideicommissary substitution, by virtue of which the heir instituted receives the inheritance
and enjoys it, although at the same time he preserves it in order to pass it on the second
heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th
ed.), says:

Or, what amounts to the same thing, the fideicommissary substitution, as held in the
Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things:

1. A first heir called primarily to the enjoyment of the estate.

2. An obligation clearly imposed upon him to preserve and transmit to a third person the
whole or a part of the estate.

3. A second heir.

Succession - SJBPrior | 8

To these requisites, the decision of November 18, 1918 adds another, namely that the
fideicommissarius be entitled to the estate from the time the testator dies, since he is to
inherit from the latter and not from the fiduciary. (Emphasis ours.)

It appears from this quotation that the heir instituted or the fiduciary, as referred to in
articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might here be
observed, as a timely remark, that the fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused
with, the English "trust."

It should also be noted that said clause IX vests in the heiress only the right to enjoy but
not the right to dispose of the estate. It says, she may enjoy it, but does not say she may
dispose of it. This is an indication of the usufruct inherent in fideicommissary substitution.

Clause X expressly provides for the substitution. It is true that it does not say whether the
death of the heiress herein referred to is before or after that of the testatrix; but from the
whole context it appears that in making the provisions contained in this clause X, the
testatrix had in mind a fideicommissary substitution, since she limits the transmission of
her estate to the children of the heiress by this provision, "in such wise that my estate
shall never pass out of the hands of my heiress or her children in so far as it is legally
possible." Here it clearly appears that the testatrix tried to avoid the possibility that the
substitution might later be legally declared null for transcending the limits fixed by article
781 of the Civil Code which prescribed that fideicommissary substitutions shall be valid
"provided they do not go beyond the second degree."

Another clear and outstanding indication of fideicommissary substitution in clause X is the
provision that the whole estate shall pass unimpaired to the heiress's children, that is to
say the heiress is required to preserve the whole estate, without diminution, in order to
pass it on in due time to the fideicommissary heirs. This provision complies with another
of the requisites of fideicommissary substitution according to our quotation from Manresa
inserted above.

Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a
provision is therein made in the event the heiress should die after the testatrix. That is,
said clause anticipates the case where the instituted heiress should die after the testatrix
and after receiving and enjoying the inheritance.

The foregoing leads us to the conclusion that all the requisites of a fideicommissary
substitution, according to the quotation from Manresa above inserted, are present in the
case of substitution now under consideration, to wit:

1. At first heir primarily called to the enjoyment of the estate. In this case the plaintiff was
instituted an heiress, called to the enjoyment of the estate, according to clause IX of the
will.

2. An obligation clearly imposed upon the heir to preserve and transmit to a third person
the whole or a part of the estate. Such an obligation is imposed in clause X which provides
that the "whole estate shall pass unimpaired to her (heiress's) surviving children;" thus,
instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the
law to take its course in case she dies intestate, said clause not only disposes of the
estate in favor of the heiress instituted, but also provides for the disposition thereof in
case she should die after the testatrix.

3. A second heir. Such are the children of the heiress instituted, who are referred to as
such second heirs both in clause X and in clause XI.

Finally, the requisite added by the decision of November 18, 1918, to wit, that the
fideicommissarius or second heir should be entitled to the estate from the time of the
testator's death, which in the instant case, is, rather than a requisite, a necessary
consequence derived from the nature of the fideicommissary substitution, in which the
second heir does not inherit from the heir first instituted, but from the testator.

By virtue of this consequence, the inheritance in question does not belong to the heiress
instituted, the plaintiff herein, as her absolute property, but to her children, from the
moment of the death of the testatrix, Ana Maria Alcantara.

Therefore, said inheritance, of which the amount referred to at the beginning, which is on
deposit with the association known as La Urbana in the plaintiff's name, is a part, does
not belong to her nor can it be subject to the execution of the judgment against Joaquin
Perez, who is not one of the fideicommissary heirs.

The judgment appealed from is affirmed, with costs against the appellant, Mariano
Garchitorena. So ordered.