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G.R. No. 72706 October 27, 1987 CONSTANTINO C. ACAIN, petitioner, vs. HON.

INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.: This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration. The dispositive portion of the questioned decision reads as follows: WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs. The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows: On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided: THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain. Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEB After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge. After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159). Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146). On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177). Petitioner raises the following issues (Memorandum for petitioner, p. 4): (A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises; (B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate; (C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs; (D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law; (E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable. (F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and (G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual. The pivotal issue in this case is whether or not private respondents have been pretirited. Article 854 of the Civil Code provides: Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not; inofficious. If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation. Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be

denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child. Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion " Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned. The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirswithout any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected. We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed. As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]). Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After all there exists a justiciable controversy crying for solution. In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissal. In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v. Nuguid, supra). In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109). For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private respondents. Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra). PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant, vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees. Custodio O. Partade for petitioner and appellant. Beltran, Beltran and Beltran for oppositors and appellees. SANCHEZ, J.: Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid. On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her. On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors who are compulsory heirs of the deceased in the direct ascending line were illegally preterited and that in consequence the institution is void. On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of absolute preterition. On September 6, 1963, petitioner registered her opposition to the motion to dismiss. 1wph1.t The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on appeal. 1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be presented, and to be acted upon, by the court. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein. 1 A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes only after the court has declared that the will has been duly authenticated. 2 But petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity? We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet headon the issue of the validity of the provisions of the will in question. 3 After all, there exists a justiciable controversy crying for solution. 2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This exacts from us a study of the disputed will and the applicable statute. Reproduced hereunder is the will: Nov. 17, 1951 I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise, and bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-one. (Sgd.) Illegible T/ ROSARIO NUGUID The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides: ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. ... Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall void the institution of heir; but the legacies and betterments4 shall be valid, in so far as they are not inofficious. ... A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments: La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente ni

se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima. Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa. Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento. It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of the word annul: To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6 The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7 ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774. 8 And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa " anulara siempre la institucion de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa: En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le motiva rige con preferencia al 817. 10 The same view is expressed by Sanchez Roman: La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11 Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal heir without any other testamentary disposition in the will amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz: ... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo

tanto procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer. 12 3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14 As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession ensues. 4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar". This argument fails to appreciate the distinction between pretention and disinheritance. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20 The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition. On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. 24 This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore cited,viz: But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would. be absolutely meaningless and will never have any application at all. And the remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage because they would be absorbed by Article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code. The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or betterments. And they are separate and distinct not only because they are distinctly and separately treated in said article but because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. ... But again an institution of heirs cannot be taken as a legacy. 25 The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null. Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.

G.R. No. L-47799

June 13, 1941

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO NERI, ET AL., petitioners, vs. IGNACIA AKUTIN AND HER CHILDREN, respondents. Ozamiz & Capistrano for petitioners. Gullas, Leuterio, Tanner & Laput for respondents. MORAN, J.: Agripino Neri y Chavez, who died on December 12, 1931, had by his first marriage six children named Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage with Ignacia Akutin, five children named Gracia, Godofredo, Violeta, Estela Maria, and Emma. Getulia, daughter in the first marriage, died on October 2, 1923, that is, a little less than eight years before the death of said Agripino Neri y Chavez, and was survived by seven children named Remedios, Encarnacion, Carmen, Trinidad, Luz, Alberto and Minda. In Agripino Neri's testament, which was admitted to probate on March 21, 1932, he willed that his children by the first marriage shall have no longer any participation in his estate, as they had already received their corresponding shares during his lifetime. At the hearing for the declaration of heirs, the trial court found, contrary to what the testator had declared in his will, that all his children by the first and second marriages intestate heirs of the deceased without prejudice to one-half of the improvements introduced in the properties during the existence of the last conjugal partnership, which should belong to Ignacia Akutin. The Court of Appeals affirmed the trial court's decision with the modification that the will was "valid with respect to the two-thirds part which the testator could freely dispose of. "This judgment of the Court of Appeals is now sought to be reviewed in this petition for certiorari. The decisive question here raised is whether, upon the foregoing facts, the omission of the children of the first marriage annuls the institution of the children of the first marriage as sole heirs of the testator, or whether the will may be held valid, at least with respect to one-third of the estate which the testator may dispose of as legacy and to the other one-third which he may bequeath as betterment, to said children of the second marriage. The Court of Appeals invoked the provisions of article 851 of the Civil Code, which read in part as follows: Disinheritance made without a statement of the cause, or for a cause the truth of which, if contradicted, is not proven, ... shall annul the institution of the heir in so far as it prejudices the person disinherited; but the legacies, betterments, and other testamentary dispositions, in so far as they do no encroach upon the legitime, shall be valid. The appellate court thus seemed to have rested its judgment upon the impression that the testator had intended to disinherit, though ineffectively, the children of the first marriage. There is nothing in the will that supports this conclusion. True, the testator expressly denied them any share in his estate; but the denial was predicated, not upon the desire to disinherit, but upon the belief, mistaken though it was, that the children by the first marriage had already received more than their corresponding shares in his lifetime in the form of advancement. Such belief conclusively negatives all inference as to any intention to disinherit, unless his statement to that effect is prove to be deliberately fictitious, a fact not found by the Court of Appeals. The situation contemplated in the above provision is one in which the purpose to disinherit is clear, but upon a cause not stated or not proved, a situation which does not obtain in the instant case. The Court of Appeals quotes Manresa thus: En el terreno de los principios, la solucion mas justa del problema que hemos hecho notar al comentar el articulo, seria distinguir el caso en que el heredero omitido viviese al otorgarse el testamento, siendo conocida su existencia por el testador, de aquel en que, o naciese despues, o se

ignorase su existencia, aplicando en el primer caso la doctrina del articulo 851, y en el segundo la del 814. (6 Manresa, 354-355.) But it must be observed that this opinion is founded on mere principles (en el terreno de los principios) and not on the express provisions of the law. Manresa himself admits that according to law, "no existe hoy cuestion alguna en esta materia: la pretericion produce siempre los mismos efectos, ya se refiera a personas vivas al hacer el testamento o nacidas despues. Este ultimo grupo solo puede hacer relacion a los descendientes legitimos, siempre que ademas tengan derecho a legitima." (6 Manresa, 381.) Appellants, on the other hand, maintain that the case is one of voluntary preterition of four of the children by the first marriage, and of involuntary preterition of the children by the deceased Getulia, also of the first marriage, and is thus governed by the provisions of article 814 of the Civil Code, which read in part as follows: The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall void the institution of heir; but the legacies and betterments shall be valid, in so far as they are not inofficious. Preterition consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited.(Cf. 6 Manresa, 346.) In the instant case, while the children of the first marriage were mentioned in the will, they were not accorded any share in the heriditary property, without expressly being disinherited. It is, therefore, a clear case of preterition as contended by appellants. The omission of the forced heirs or anyone of them, whether voluntary or involuntary, is a preterition if the purpose to disinherit is not expressly made or is not at least manifest. Except as to "legacies and betterments" which "shall be valid in so far as they are not inofficious" (art. 814 of the Civil Code), preterition avoids the institution of heirs and gives rise to intestate succession. (Art. 814, Civil Code; Decisions of the Supreme Court of Spain of June 17, 1908 and February 27, 1909.) In the instant case, no such legacies or betterments have been made by the testator. "Mejoras" or betterments must be expressly provided, according to articles 825 and 828 of the Civil Code, and where no express provision therefor is made in the will, the law would presume that the testator had no intention to that effect. (Cf. 6 Manresa, 479.) In the will here in question, no express betterment is made in favor of the children by the second marriage; neither is there any legacy expressly made in their behalf consisting of the third available for free disposal. The whole inheritance is accorded the heirs by the second marriage upon the mistaken belief that the heirs by the first marriage have already received their shares. Were it not for this mistake, the testator's intention, as may be clearly inferred from his will, would have been to divide his property equally among all his children. Judgment of the Court of Appeals is reversed and that of the trial court affirmed, without prejudice to the widow's legal usufruct, with costs against respondents.

G.R. No. L-13876

February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees, vs. DR. MANUEL SINGSON, defendant-appellant. Felix V. Vergara for defendant-appellant. B. Martinez for plaintiffs-appellees. DIZON, J.: Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in connection with a residential lot located a Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the improvements existing thereon, covered by Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly probated last will of Da. Leona Singson, the original owner, and the project of partition submitted to, and approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that plaintiffs had made demands for the partition of said property, but defendant refused to accede thereto, thus compelling them to bring action. Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of onehalf pro-indiviso of the property in question, and that, therefore, she was not entitled to demand partition thereof. After trial upon the issue thus posed, the lower court rendered judgment as follows: 1. Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and lot described in the complaint to the extent of each of an undivided 1/2 portion thereof; . 2. Ordering the aforesaid co-owners to execute an agreement of partition of the said property within 30 days from receipt of this judgment unless it be shown that the division thereof may render it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may be applied; .1wph1.t 3. That in the event the said parties shall fail to do so, this Court will appoint the corresponding commissioners to make the partition in accordance with law; and . 4. Without special pronouncement as to costs." . From the above judgment, defendant Singson appealed. It is admitted that Da. Leona Singson, who died single on January 13, 1948, was the owner of the property in question at the time of her death. On July 31, 1951 she executed her last will which was admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed by the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and Trinidad, and her grandniece Consolation, all surnamed Florentino.

Clause IX of her last will reads as follows: . NOVENO. Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo tiempo vive en mi casa, y, por tanto, bajo mi proteccion, y es la CONSOLACION FLORENTINO: (A). La mitad de mi casa de materials fuertes con techo de hierro galvanizado, incluyendo la mitad de su solar, ubicado en la Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido Kairuz. Pero si falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales entre mis tres hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas murieie antes ... (Exhibit F.) The issue to be decided is whether the testamentary disposition above-quoted provided for what is calledsustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled by the pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the New Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following: . Art. 774. 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 unable to accept the inheritance. A simple substitution, without a statement of the cases to which it is to apply, shall include the three mentioned in the next preceeding paragraph, unless the testator has otherwise provided: Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve and transmit to a third person the whole or part of the inheritance shall be valid and effective, provided they do not go beyond the second degree, or that they are made in favor of persons living at the time of the death of the testator." . Art. 785. The following shall be inoperative: . 1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon the fiduciary the absolute obligation of delivering the property to a second heir." .... In accordance with the first legal provision quoted above, the testator may not only designate the heirs who will succeed him upon his death, but also provide for substitutes in the event that said heirs do not accept or are in no position to accept the inheritance or legacies, or die ahead of him. The testator may also bequeath his properties to a particular person with the obligation, on the part of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a particular event (6 Manresa, p. 1112). It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named therein in this manner: that upon the death of Consolacion Florentino whether this occurs before or after that of the testatrix the property bequeathed to her shall be delivered (" se dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio, or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause created what is known as sustitucion vulgar, the necessary result would be that Consolacion Florentino, upon the death of the testatrix, became the owner of one undivided half of the property, but if it provided for a sustitution fideicomisaria, she would have acquired nothing more than usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to partition, but not in the latter. As Manresa says, if the fiduciary did not acquire full ownership of the property bequeathed by will, but mere usufructuary rights thereon until the time came for him to deliver said property to the fideicomisario, it is obvious that the nude ownership over the property, upon the death of the testatrix, passed to and was acquired by another person, and the person cannot be other than the fideicomisario (6 Manresa p. 145). It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old Civil Code

provides that a fideicommissary substitution shall have no effect unless it is made expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir the absolute obligation ("obligacion terminante") to deliver the inheritance to a substitute or second heir. In this connection Manresa says: . Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno o encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera persona o entidad el todo a parte de la herencia. O lo que es lo mismo, la sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de 1899 y 19 de Julio de 1909, exige tres requisitos: . 1.o Un primer heredero llamado al goce de los bienes preferentemente. 2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo o parte del caudal. 3.o Un segundo heredero. A estos requisitos anade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el fideicomisario tenga derecho a los bienes de la herencia desde el momento de la muerte del testador, puesto que ha de suceder a este y no al fiduciario. Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de ambos o de cualquiera de ellos, asigna la parte del fallecido o fallecidos, a los herederos legitimos o a otras personas, solo existe una sustitucion vulgar, porque falta el requisito de haberse impuesto a los primeros herederos la obligacion de conservar y transmitir los bienes, y el articulo 789, en su parrafo primero, evige que la sustitucion sea expresa, ya dandole el testador el nombre de sustitucion fideicomisaria, ya imponiendo al sustituido la obligacion terminante de conservar y transmitir los bienes a un segundo heredero. A careful perusal of the testamentary clause under consideration shows that the substitution of heirs provided for therein is not expressly made of the fideicommissary kind, nor does it contain a clear statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As already stated, it merely provides that upon appellee's death whether this happens before or after that of the testatrix her share shall belong to the brothers of the testatrix. In the light of the foregoing, we believe, and so hold, that the last will of the deceased Da. Leona Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the brothers of the testatrix to be effective or to take place upon the death of the former, whether it happens before or after that of the testatrix. IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.

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, garantizada 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 '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 onehalf 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 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. Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ., concur.