Non v.

Court of Appeals
G.R. No. 137287
[February 15, 2000]
382 PHIL 538-544

Facts:

Petitioners and respondents shared, since 1977 a common residence at the Isarog property.
Soon, tension appeared to have escalated between petitioner Rebecca Viado and respondent Alicia
Viado after the former had asked that the property be equally divided between the two families to make
room for the growing children. Respondents claimed absolute ownership over the entire property and
demanded that petitioners vacate the portion occupied by the latter. On February 1, 1988 petitioners,
asserting co-ownership over the property in question, filed a case of partition before the RTC of Quezon
City. Respondents predicated their claim of absolute ownership over the subject property on the deed
of donation executed by the late Julian Viado covering his 1/2 share in favor of respondent's husband,
Nilo Viado, and a deed of extrajudicial settlement in which Julian Viado, Leah Viado Jacobs and
petitioner Rebecca Viado waived their rights and interests in favor of Nilo Viado. The trial court found
for respondents and adjudged Alicia Viado and her children as being the true owners of the disputed
property. On appeal, the Court of Appeals affirmed the decision of the trial court, but ordered the
remand of the records of the case to the court a quo for further proceedings to determine the value of
the property and the amount respondents should pay to petitioner Delia Viado for having been
preterited in the deed of extrajudicial settlement. Dissatisfied therewith, petitioners filed the petition
seeking the reversal of the decision of the Court of Appeals.

Issue:

Should the partition be rescinded due to the preterition of Delia as an heir?

Ruling:

The Supreme Court found the appellate court to have ruled correctly. The evidence submitted
by petitioners were utterly wanting, consisting of, by and large, self-serving testimonies. While asserting
that Nilo Viado employed fraud, forgery and undue influence in procuring the signatures of the parties
to the deed of donation and of the extrajudicial settlement, petitioners are vague on how and in what
manner those supposed vices occurred. With regard to the issue of preterition, the Court ruled that the
exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of the extrajudicial
settlement verily has had the effect of preterition. Thus, the appellate court acted properly in ordering
the remand of the case for further proceedings to make the proper valuation of the property and
determination of the amount due to petitioner Delia Viado.
Doctrine:

PRETERITION; WHERE THE PRETERITION IS NOT ATTENDED BY BAD FAITH AND FRAUD, THE
PARTITION SHALL NOT BE RESCINDED BUT THE PRETERITED HEIR SHALL BE PAID THE VALUE OF THE
SHARE PERTAINING TO HER. — The exclusion of petitioner Delia Viado, alleged to be a retardate, from
the deed of extrajudicial settlement verily has had the effect of preterition. This kind of preterition,
however, in the absence of proof of fraud and bad faith, does not justify a collateral attack on Transfer
Certificate of Title No. 373646. The relief, as so correctly pointed out by the Court of Appeals, instead
rests on Article 1104 of the Civil Code to the effect that where the preterition is not attended by bad
faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the
share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand of the
case for further proceedings to make the proper valuation of the Isarog property and ascertainment of
the amount due petitioner Delia Viado.

De Perez v. Garchitorena
G.R. No. 31703
[February 13, 1930]
54 PHIL 431-437

Facts:

 Carmen Perez is in possession of P21K deposited by La Urbana as the final payment of Ana
Alcantara against Andres Garchitorena.
 Mariano, son of Andres, sought attachment on said amount after obtaining
judgement worth P7.8K against Joaquin Alcantara, husband of Carmen.
 Carmen contends that said amount belongs to the fideicommissary heirs of Ana.
 The lower court ruled that the money belongs to Carmen’s children as fideicommissary heirs of
Ana.

Issue:

Was the money the property of Carmen’s children as fideicommissary heirs?

Ruling:

1. WILLS; INSTITUTION OF HEIRS; FIDEICOMMISSARY HEIR. — The institution of heirs made in

the will in question is in the nature of a fideicommissum: there is an heiress primarily called to enjoy the
estate; an obligation clearly imposed upon her to preserve and transmit the whole of the estate to
certain third persons; and there are secondary heirs.

2. ID.; ID.; ID.; DISTINCTION BETWEEN FIDEICOMMISSUM AND TRUST. — The heir instituted, or
fideicommissioner, as article 783 of the Civil Code has it, is entitled to the enjoyment of the estate. The
fideicommissum thus arising from a fideicommissary substitution, which is of Roman origin, is not
exactly equivalent to, and should not be confused with, the English "trust."

Doctrine:

 Requisites of fideicommissary substitution

o A first heir called primarily to the enjoyment of the estate.
o An obligation clearly imposed upon him to preserve and transmit to a third person the
whole or a part of the estate.
o A second heir.

Rabadilla v. Court of Appeals

G.R. No. 113725
[June 29, 2000]
390 PHIL 11-36

Facts:

Dr. Jorge Rabadilla, in a codicil of Aleja Belleza, was instituted devisee of Lot No. 1392 with an
area of 511,855 square meters with the obligation to deliver 100 piculs of sugar to herein private
respondent every year during the latter's lifetime. The codicil provides that the obligation is imposed not
only on the instituted heir but also to his successors-in-interest and that in case of failure to deliver,
private respondent shall seize the property and turn it over to the testatrix's "near descendants." Dr.
Rabadilla died and was survived by his wife and children, one of whom is herein petitioner. Private
respondent, alleging failure of the heirs to comply with their obligation, filed a complaint with the RTC
praying for the reconveyance of the subject property to the surviving heirs of the testatrix. During the
pre-trial, a compromise agreement was concluded between the parties wherein the lessee of the
property assumed the delivery of 100 piculs of sugar to private respondent. However, only partial
delivery was made. Thereafter, the trial court dismissed the complaint for lack of cause of action. The
Court of Appeals, on appeal, reversed the decision and held that the institution of Dr. Rabadilla is in the
nature of a modal institution and a cause of action in favor of private respondent arose when petitioner
failed to comply with their obligation under the codicil, and in ordering the reversion of Lot 1392 to the
estate of testatrix. Aggrieved, petitioner availed of this recourse.

Ruling:

Successional rights are transmitted from the moment of death and compulsory heirs succeed
the decedent not only to all the property but also to his rights and obligations. Hence, the heirs of Dr.
Rabadilla is also obliged under the codicil to deliver 100 piculs of sugar to private respondent every year.
 There is no substitution of heir where no substitute was provided by the testatrix in case the
instituted heir predecease her or in case of the latter's incapacity or renunciation nor was the instituted
heir mandated to preserve the property and to transmit it to the second heir.

Doctrine:

SUBSTITUTION, DEFINED. — Substitution is the designation by the testator of a person or

persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator
may either (1) provide for the designation of another heir to whom the property shall pass in case the
original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a
simple substitution, or (2) leave his/her property to one person with the express charge that it be
transmitted subsequently to another or others, as in a fideicommissary substitution.

FIDEICOMMISSARY SUBSTITUTION DIFFERENT FROM CODICIL; CASE AT BAR. — Neither is there

a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to
the second heir. In the case under consideration, the instituted heir is in fact allowed under the Codicil
to alienate the property provided the negotiation is with the near descendants or the sister of the
testatrix.