Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-23638            October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners, 

vs.
ISMAELA DIMAGIBA, respondent.

----------------------------------------

G.R. No. L-23662            October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners, 

vs.
ISMAELA DIMAGIBA, respondent.

Jose D. Villena for petitioners.

Antonio Barredo and Exequiel M. Zaballero for respondent.

REYES, J.B.L., Actg. C.J.:

The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the Court of Appeals (in CA-
G. R. No. 31221-R) affirming that of the Court of First Instance of Bulacan, in Special Proceeding No. 831 of said Court,
admitting to probate the alleged last will and testament of the deceased, and overruling the opposition to the probate.

It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the Court of First Instance
a petition for the probate of the purported will of the late Benedicta de los Reyes, executed on October 22, 1930, and annexed to
the petition. The will instituted the petitioner as the sole heir of the estate of the deceased. The petition was set for hearing, and
in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar, Leonor and Paciencia,
all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate asked. Grounds advanced
for the opposition were forgery, vices of consent of the testatrix, estoppel by laches of the proponent and revocation of the will by
two deeds of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but
which conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R.
Nos. L-5618 and L-5620 (unpublished).

After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found that the will was genuine and
properly executed; but deferred resolution on the questions of estoppel and revocation "until such time when we shall pass upon
the intrinsic validity of the provisions of the will or when the question of adjudication of the properties is opportunely presented."

Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that the issues of estoppel and
revocation be considered and resolved; whereupon, on July 27, 1959, the Court overruled the claim that proponent was in
estoppel to ask for the probate of the will, but "reserving unto the parties the right to raise the issue of implied revocation at the
opportune time."

On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the sole purpose of submitting an
inventory of the estate, and this was done on February 9, 1960.
On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix of deeds of sale of the
larger portion of her estate in favor of the testamentary heir, made in 1943 and 1944, subsequent to the execution of her 1930
testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court
resolved against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of
sale." Whereupon, the oppositors elevated the case to the Court of Appeals.

The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become final for lack of opportune
appeal; that the same was appealable independently of the issue of implied revocation; that contrary to the claim of oppositors-
appellants, there had been no legal revocation by the execution of the 1943 and 1944 deeds of sale, because the latter had been
made in favor of the legatee herself, and affirmed the decision of the Court of First Instance.

Oppositors then appealed to this Court.

In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree of the Court of First
Instance allowing the will to probate had become final for lack of appeal; (b) whether or not the order of the Court of origin dated
July 27, 1959, overruling the estoppel invoked by oppositors-appellants had likewise become final; and (c) whether or not the
1930 will of Benedicta de los Reyes had been impliedly revoked by her execution of deeds of conveyance in favor of the
proponent on March 26, 1943 and April 3, 1944.

As to the first point, oppositors-appellants contend that the order allowing the will to probate should be considered interlocutory,
because it fails to resolve the issues of estoppel and revocation propounded in their opposition. We agree with the Court of
Appeals that the appellant's stand is untenable. It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether
its provisions are valid and enforceable or otherwise. (Montañano vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215;
Trillana vs. Crisostomo, 89 Phil. 710). As such, the probate order is final and appealable; and it is so recognized by express
provisions of Section 1 of Rule 109, that specifically prescribes that "any interested person may appeal in special proceedings
from an order or judgment . . . where such order or judgment: (a) allows or disallows a will."

Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of their opposition before taking
an appeal, as otherwise there would be a multiplicity of recourses to the higher Courts. This contention is without weight, since
Rule 109, section 1, expressly enumerates six different instances when appeal may be taken in special proceedings.

There being no controversy that the probate decree of the Court below was not appealed on time, the same had become final
and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the evidence upon which it is made to
rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed.

The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly
irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to
probate, or its probate is denied, all questions of revocation become superfluous in law, there is no such will and hence there
would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely
implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise
the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy. Only
the total and absolute revocation can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra.).

As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and probate of a
will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes, which are entitled to
respect as a consequence of the decedent's ownership and right of disposition within legal limits. Evidence of it is
the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its
violation (Revised Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or
not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of
Appeals correctly so ruled.

The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950 (Art. 869 of the Code of
1889), which recites:

Art. 957. The legacy or devise shall be without effect:

(1) . . . .

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus
alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of
the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected
by virtue of the exercise of the right of repurchase;

xxx           xxx           xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a presumed change of intention
on the part of the testator. As pointed out by Manresa in his Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p.
743) —

Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se desprende de la cosa por
titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a la presuncion de que ha
cambiado de voluntad, y no quiere que el legado se cumpla. Mas para que pueda presumirse esa voluntad, es
necesario que medien actos del testador que la indiquen. Si la perdida del derecho sobre la cosa ha sido
independiente de la voluntad del testador, el legado podraquedar sin efecto, mas no en virtud del numero 2 del
articulo 869, que exige siempre actos voluntarios de enajenacion por parte del mismo testador.

As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the testatrix,
expressed in her 1930 testament, is rendered doubtful by the circumstance that the subsequent alienations in 1943 and 1944
were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision
annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618
and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the
transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended
to comply in advance with what she had ordained in her testament, rather than an alteration or departure therefrom. 1 Revocation
being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil
Code of the Philippines, does not apply to the case at bar.

Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of
the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944
deeds of sale were also that

it was the moral influence, originating from their confidential relationship, which was the only cause for the
execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-5618 and L-5620).

If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free
will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances established a decision
on her part to abandon the original legacy.

True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by reason of the
nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the
"nullity of the contract" can not be taken in an absolute sense.2 Certainly, it could not be maintained, for example, that if a
testator's subsequent alienation were avoided because the testator was mentally deranged at the time, the revocatory effect
ordained by the article should still ensue. And the same thing could be said if the alienation (posterior to the will) were avoided on
account of physical or mental duress. Yet, an alienation through undue influence in no way differs from one made through
violence or intimidation. In either case, the transferor is not expressing his real intent, 3 and it can not be held that there was in
fact an alienation that could produce a revocation of the anterior bequest.

In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed. Costs against
appellants Reyes and Fernandez. So ordered.

Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.

Footnotes

1
Scaevola (Codigo Civil, Vol. XV, 4th Ed., p. 378) aptly remarks:

"Cuando el testador, a sabiendas de la disposicion contenida en su ultima voluntad, enajena al legatario la cosa
legada, si bien esta sale del poder de aquel, va a parar al del legatario, acto que no puede interpretarse como
mudanza del a voluntad, puesto que transmits la cosa a la persona a la que deseaba favoreer con ella. Por esta
circunstancia y por la de no revocar el legado, mas bien parece que persiste en su intencion de beneficiar al
legatario, ya que no con la propia cosa, con el derecho que le concede el art. 878. Si al donar el testador al futuro
legatario la cosa que le dejaba en el testamento, indica solo una realizacion anticipada de la ultima voluntad, el
venderia sin derogar la disposicion dellegado parece indicae tambien que no ha habido idea modificadora de la
intencion, sino que porsigue en la de favorecer al instituido, y ya que no es posible conseguirlo con la cosa
misma,se impone el verificarlo en la manera determinada por el articulo, o sea mediante la entrega del precio."

2
 "Deciamos anteriormente que necesitaba alguna explicacion la frase del num. 20.o del art. 869, "aunque sea
por la nulidad del contrato," para no apartarla de sus verdaderos y prudentes limites. Literalmente entendida,
autorizaria el que fuese revocado un legado por enajenacion que hubiese realizado el testador con vicio en el
consentimiento. Dice con razon eljurisconsulto frances Demante, "quese llegaria a consecuencias contrariasa los
principios mas elementales del Derecho y de la razon si, exagerandodicha doctrina, se diese efecto revocatorio a
una enajenacion nulapor vicio de consentimiento." Como una voluntad impotente para transferirla propiedad
podria tener la fuerza de revocar un legado? Si la enajenacionlleva el vicio de violencia o de error, sera posible
artibuir algun efectoa acto semejante? Es logico deducir entonces que el testador se arrepintio, como dicen las
partidas del otorgamento de la manda?" (Scaevola, op. cit.)

3
Cf. Torres vs. Lopez, 48 Phil. 772; Coso vs. Deza, 42 Phil.

The Lawphil Project - Arellano Law Foundation

G.R. No. L-14474            October 31, 1960

ONESIMA D. BELEN, petitioner-appellant, 
vs.
BANK OF THE PHILIPPINE ISLANDS and MILAGROS BELEN DE OLAGUERA, oppositors-
appellees.

E. A. Beltran for appellant.

E. P. Villar for appellees.
R. F. Aviado for Trustee Bank.

REYES, J.B.L., J.:

Appeal from an order, dated May 23, 1958 of the Court of First Instance of Manila in Special
Proceedings No. 9226, denying appellant's petition therein as hereafter discussed.

Briefly, the facts and circumstances that brought about this present appeal may be narrated as
follows:

Benigno Diaz executed a codicil on September 29, 1944, the pertinent provisions of which read:

9.0 — En caso de muerte de alguno o de todos los legatarios nom brados por mi, seran
beneficiarios o sea parasan los legados a favor solamente de los descendientes y
ascendientes legitimos, pero no a los viudos conyuges.

10.0 — Transcurridos diez o quince años despues de mi muerte todas mispropiedades,

muebles o inmuebles, derechos y ventajosos, pueden proceder a la venta de todos dando
preferencia a los legatarios y de su importe total se deduciran mil pesos (P1,000) para los
cuartrohijos de mi difunto hermano Fabian, todos los gastos y reservando una cantidad
suficiente y bein calcumada para sufrugar se distriburia a las siguientes personas que aun
vuiven, o a sus descendientes legitimos:

A Isabel M. de Santiago — cincuente por ciento (50%)

Los hijos de Domingo Legarda — treinta por ciente (30%)
Filomena Diaz — diez por ciento (10%)
Nestor M. Santiago — diez por ciento (10%)

On November 7, 1944, Benigno Diaz died; and the aforesaid codicil, together with the will, was
admitted to probate in Special Proceedings No. 894 of the same Court of First Instance of Manila.
The proceedings for the administration of the estate of Benigno Diaz were closed in 1950 and the
estate was thereafter put under the administration of the appellee Bank of the Philippine Islands, as
trustee for the benefit of the legatees.

Filomena Diaz died on February 8, 1954, leaving two legitimate children, Milagros Belen de
Olsguera, married, with seven (7) legitimate children, and Onesima D. Belen, single.

On March 19, 1958, Onesima D. Belen filed a petition in Special Proceedings No. 9226, contending
that the amount that would have appertained to Filomena Diaz under the codicil should now be
divided(equally) only between herself and Milagros Belen de Olaguera, as the surviving children of
the said deceased, to the exclusion, in other words, of the seven (7) legitimate children of Milagros
Belen de Olaguera. The court, in its order on May 23, 1958 denied, as initially pointed out Onesima's
petition. More specifically, the court said:
 After due consideration of the petition filed by Onesima D. Belen on March 19, 1958, wherein
it is prayed that the trustee Bank of the Philippine Island be directed to deliver to her "one-
half of whatever share is due to the deceased Filomena Diaz as legatee in the will and
codicil of the deceased testator Benigno Diaz y Heredia, subject of trusteeship in these
proceedings," this Court of the resolution of September 28, 1959, in which resolution the
following was declared:

"That the share of Filomena Diaz in the residue of the proceeds of the sale of the
properties covered in paragraph 10 of the codicil aforesaid does not and should not
from part of her estate; it pertains to her legitimate descendants; and

"That the aforesaid share of Filomena Diaz should be distributed not only between
her children, Milagros Belen de Olaguera and Onesima D. Belen, but also among her
other legitimate descendants, if any, for descendientes include not only children but
also grandchildren, etc., and in this connection. it is not amiss to observe that one
may be a descendant and not yet not be an heir, and vice versa, one may be an heir
and yet not be a descendant.

From this order Onesima D. Belen has appealed to this Court, insisting that (1) the Court below was
in error in holding that its former resolution of September 16, 1955 had been affirmed by our decision
of February 28, 1958 in the case of Arguelles vs. Belen de Olaguera, G.R. No. L-10164 Feb. 28,
1958; and (2) that the term "sus descendeintes legitimos," as used in the codicil, should be
interpreted to mean descendants nearest in the degree to the original legatee Filomena Diaz. In the
present case, they are her two daughters (Milagros and Onesima Belen), thereby excluding the
seven grandchildren of said legatee.

As to her first point, the appellant is the correct ion her view that the trial court's interpretation of
clause 10 of the codicil to the will of Benigno Diaz has not been affirmed in our previous decision
(G.R. No. L-10164). Perusal of that judgment will show that this Court left the issue open at the time,
contenting itself with pointing out that the then appellant Administrator of the estate of Folimena Diaz
was not the proper party to the raise the particular issue.

As the actual meaning of the provision —

El restro se distribuira a las siguientes personas que aun viven, o a sus descendientes
legitimos,

it is undeniable that but this cluase the testator ordained a simple substitution (sustitucion vulgar)
with a plurality of substitutes for each legatee. This form of substitution authorized by the first poart
of Article 860 of the Civil Code (Art. 778 of the Code of 1889):

Two or more persons may be substituted for one and one person for two or more heirs.

The issue is now squarely before us : do the words "sus descendientes legitimos" refer conjointly to
all living descendant (children and grandchildren) of the legatee, as a class; or they refer to the
descendants nearest in degree?

Appellant Onesima Belen contends that the phrase should be taken to mean the relatives nearest in
degree to Filomena Diaz; and that the legacy should be therefore divided equally between her and
her sister Milagros Belen de Olaguera, to the exclusion of the latter's sons and daughters, grand
children of the original legatee, Filomena Diaz. As authority in support of her thesis, appellant
invokes Article 959 of the Civil Code of the Philippines (reproducing ne varieter Article 751 of the
Code of 1889):

A distribution made in general terms in favor of the testator's relatives shall be understood as
made in favor of those nearest in degree.

The argument fails to note that this article is specifically limited in its application to the case where
the beneficiaries are relatives of the testator, not those of the legatee. In such an event, the law
assumes that the testator intended to refer to the rules of intestacy, in order to benefit the relatives
closest to him, because, as Manresa observes, —

la razon y la logica ha cen fundadamente suponer que, al procurar este favorecer a sus
parientes, habria de ajustarse mas a ligadas al mismo (testador) por los vinculos de la
sanger y de la familia (6 Manresa, Comm., 7th Ed., p. 72).

But the ratios legis (that among a testator's relative the closest are dearest) obviously does not
supply where the beneficiaries are relatives of another person (the legatee) and noot of the testator .
There is no logical reason in this case to presume that the testator intended to refer to the rules of
intestacy, for he precisely made a testament and provided substitutes for each legatee; nor can it be
said that his affections would prefer the nearest relatives of the legatee to those more distant, since
he envisages all of them in a group, and only as mere substitutes for a preferred beneficiary.

Should Article 959 (old Art. 751) be applied by anology? There are various reasons against this. The
most important one is that under this article, as recognized by the principal commentators on the
Code of 1889, the nearest of exclude all the farther relatives and right of representation does not
operate. Castan, in his monograph "El derecho de representacion y mecanimos jurididos afines en
la sucesion testamentaria" (Reus, 1942), says on this question (Pp. 13, 14, 15):

En el subgrupo ibericio de Europia y America predomina, aunque haya ex excepciones,

cuando menos en principio, no tiene cabida en la sucesion testamentaria. Asi, por ejemplo,
lo establece la doctrina cientifica en Portugal y en la Argentina y lo ha sancionado la
jurisprudencia en Cuba.

En igual sentido, en la doctrina española es opinion general que el derecho de

representacion, dentro del Codigo civil, no tiene lugar mas que en la sucesion intestada, y
en la testamentaria en la parte refernte a las legitimas. MUCIUS SCAEVOLA juzga que la
reopresentacion, atraida por la herencia legitima, es repelida por la testada, y apunta, como
razon de ello, la de que "la primera descansa en la ley de la sangre, en el parentesco con su
consiguiente atributo de linea y grado, elementos propios o indispensabnles para la
repretascion , en tanto que l asegunda se basa exclusivamente en la voluntad del testador,
elemento diverso, en la orderen legal, al de la naturaleza o de la sandre". Y el maestro DE
DIEGO, con orientacion anologa, piensa que como el titulo de la sucesion testada es de
origen voluntario y caracter personalismo, es evidente que no hay terminos habiles para el
derecho de representacion: los llamamientos son individuales y la premoriencia del
instituido, como su incapacidad, aniquilan la institucion.

In the second place, the history of Article 751 (of the 1889 Code) shown that the right of
representation was deliberately suppressed. Says Castan (op. cit., 24):

En nuestra Patria opino GARCIA GOYENA que debia tener a los parientos mas
representacion aun cuando el testator llame abiertamente la voluntad del testador, debe
"observarse el orden de la sucesion legitima, al que se presume que en todo lo demas quiso
 atemperase. Poe ello, el art. 562 Proyecto de 1851 quedo redactadso asi: "La disposicion
hecha simple y generalmente a favor de los parientes del testador, se entiende hecha en
favor de los mas proximos en grado ; pero habra lugar al derecho de representacion con
todos sus efectos, con arreglo al tittulo siguiento".

Con poco acierto, a nuestro juicio, los autores del vigente Codigo han suprimido esta
salvedad del Proyecto del 51, y con ello han instaurado una norma rigida, distanciada de lo
que exige la equidad y de lo que suelen establecer los Codiogos extranjeros. Los
commentaristas convienen en que la supresion ha sido intencionada, y por consiguiente el
proposito del legaslador es que en esta clase de llamamientos no se da el derecho, de
representacion. Dice Manresa que el art. 751 "tiene por favorecidos con tal institucion, no a
los parientes de mejor derecho, sino a los mas proximos en grado y, por lo tanto, los de
primer grado excluiran a los de segundo y asi sucesivamente, toda vez que la art. 915". La
misma interpretacion dan al articulo de referencia NAVARRO AMANDI, MUCIUS
SCAEVOLA, SANCHEZ ROMAN y VALVERDE.

The result would be that by applying to the descendants of Filorema Diaz the "nearest relatives" rule
of Article 959, the inheritance would be limited to her children, or anyone of them, excluding the
grandchildren altogether. This could hardly be the intention of the testator who, in the selfsame
clause 10 of his council (ante), speaks of "cuatro hijos de mi difunto hermano Fabian" and of
"los hijos de Domingo Legarda," as well as of "descendientes legitimos" of the other legates, to us
indicating clearly that he understood well that hijos and descendientes are not synonymous terms.
Observe that, in referring to the substitutes of Filomena Diaz, Nestor Santiago and Isabel M. de
Santiago, the testator, does not even use the description "sus hijos o descendientes," but only
"descendientes".

It is suggested that "descendientes legitimos" could mean the nearest descendant but with the right
of representation in favor of the more distant relatives. Unquestionably, the testator was at liberty to
provide a series of successive substitutions in the order of proximity of relationship to the original
legatee. And he, likewise, was free to ordain that the more distant descendants should enjoy the
right of representation as in intestate succession. But to arrive at such conclusion, we must declare
that the testator had:.

(a) Rejected, or intended to reject, the right of accretion among co-heirs and co-legatees, as
established for testamentary successions by Articles 10016 (old Art. 982) and 1019, and intended to
replace such accretion with representation;

ART. 1016. In order that the right of accretion may take place in a testamentary succession,
it shall be necessary:

(1) That two or more persons be called to the same inheritance, or to the same portion
thereof, pro indiviso; and

(2) That one of the persons thus called die before the testator or renounce the inheritance, or
be incapacitated to receive it.

xxx           xxx           xxx

ART. 1019. The heirs to whom the petition goes by the right of accretion take it in the same
proportion that they inherit.
(b) Refused, likewise, the rule of Article 846 (reproduced from Article 765 of the Code of 1889)
providing that:

Heirs instituted without designation of shares shall inherit in equal parts,

which would not obtain if the right of representation were to apply;

(c) Rejected finally the rule of Article 1022 (old Art. 986), that vacancies in the free part should be
filed according to the rules of accretion or substitution (not representation); and in default of these
two, ultimately inherited by the testator's own heirs intestate:

ART. 1022. In testamentary succession, when the right of accretion does not take place, the
vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the
legal heirs of the testator, who shall receive it with the same charges and obligations.

There is no doubt that, the testator's intention being the cardinal rule of succession in the absence of
compulsory (forced) heirs, he could have rendered inoperative all the articles mentioned, if he had
so desired. But without any other supporting circumstances, we deem expression "o a sus
desecendientes legitimos," the testator Benigno Diaz did intend to circumvent all the legal provisions
heretofore quoted. It was incumbent upon appellant to prove such intention on the part of the
testator; yet she has not done so.

It is interesting to note that even under the Anglo-Saxon doctrine, the courts are divided on the
question whether a bequest to "relatives" or "issue," made in general terms, gives rise to
succession per capita or per stripes. In Wyeth, et al., vs. Crane, 174 N.E. 871, the Supreme Court
of Illinois said;

The meaning of the word "descendants", when used in a will or deed to designate a class to
take property passing by the will or deed, has been frequently considered and decided by
the Court of England and the United States. They established rule in England from an early
date was that the word "descendants" or the word "issued" unexplained by anything in the
context of the instrument, means all persons descending lineally from another, to the
remotest degree, and includes persons descended, even though their parents are living, and
that such descendants take per capita stripes.

The courts of this country are divided on the question of whether in case of a gift or
conveyance to "descendants" or "issue", children take concurrently with their parents. The
so- called English rule has been adhered to in New York, New Jersey, and Tenessee. . . . On
the other hand, the courts of Massachusetts, Maine, Rhode Island and South Carolina have
held that, in case of a gift or conveyance to descendants or issue, unexplained by anything
in the context of instrument, children do not take currently with their parents.

We conclude that in the absence of other indications of contrary intent, the proper rule to apply in the
instant case is that the testator, by designating a class or group of legatees, intended all members
thereof to succeed per capita, in consonance with article 846. So that the original legacy to Filomena
Diaz should be equally divided among her surviving children and grandchidren.

The order appealed from is affirmed, with costs to the appellant..

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Gutierrez, David and Paredes, JJ., concur.
G.R. No. L-23079 February 27, 1970

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners, 

vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.

Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.

Ruben Austria for himself and co-petitioners.

De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.

Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:

On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate
was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition
was, however, dismissed and the probate of the will allowed after due hearing.

The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the
respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga,
all of whom had been assumed and declared by Basilia as her own legally adopted children.

On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The
respondent Perfecto Cruz was appointed executor without bond by the same court in accordance
with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the
petitioner Ruben Austria.

Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in
intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the
five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance
with law, in effect rendering these respondents mere strangers to the decedent and without any right
to succeed as heirs.

Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a
quo allowed the petitioners' intervention by its order of December 22, 1959, couched in broad terms,
as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [Ruben
Austria, et al.,] dated November 5, 1959 is hereby granted."

In the meantime, the contending sides debated the matter of authenticity or lack of it of the several
adoption papers produced and presented by the respondents. On motion of the petitioners Ruben
Austria, et al., these documents were referred to the National Bureau of Investigation for
examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the
petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption
papers to the Philippine Constabulary for further study. The petitioners likewise located former
personnel of the court which appeared to have granted the questioned adoption, and obtained
written depositions from two of them denying any knowledge of the pertinent adoption proceedings.

On February 6, 1963, more than three years after they were allowed to intervene, the petitioners
Ruben Austria, let al., moved the lower court to set for hearing the matter of the genuineness of the
adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court
for hearing arrived, however, the respondent Benita Cruz-Meñez who entered an appearance
separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the
lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted,
to properties not disposed of in the will of the decedent.

On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently
submitted their respective memoranda, and finally, the lower court issued an order on June 4, 1963,
delimiting the petitioners' intervention to the properties of the deceased which were not disposed of
in the will.

The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition,
from the respondents. On October 25, 1963 the same court denied the petitioners' motion for
reconsideration.

A second motion for reconsideration which set off a long exchange of memoranda from both sides,
was summarily denied on April 21, 1964.

Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25,
1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that were
not included in the decedent's testamentary dispositions.

The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate
of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta
and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest
surviving blood relatives of the decedent. On the other side are the respondents brothers and
sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by
virtue of legal adoption. At the heart of the controversy is Basilia's last will — immaculate in its
extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.

The complaint in intervention filed in the lower court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower
court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption
is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in
question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as
compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds
support in article, 842 of the Civil Code which reads:

One who has no compulsory heirs may dispose of by will all his estate or any part of
it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling
testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been
disposed of in the will, for to that extent intestate succession can take place and the question of the
veracity of the adoption acquires relevance.

The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend
to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the
decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof that the adoption of the same heirs by the
decedent is false.

The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:

The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.

Coming closer to the center of the controversy, the petitioners have called the attention of the lower
court and this Court to the following pertinent portions of the will of the deceased which recite:

III

Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing
na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong Cruz.

xxx xxx xxx

Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-
ariang maiiwan, sa kaparaanang sumusunod:

A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,

Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang
kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang
sapilitang mana (legiti[ma]), ang kalahati (½) ng aking kaparti sa lahat ng aming ari-
ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa
Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa
No. 1 ng parafo IV ng testamentong ito, ang kalahati (½) ng mga lagay na lupa at
palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama
na si Calixto Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa Tinejeros,
Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria.

The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia
was deceived into believing that she was legally bound to bequeath one-half of her entire estate to
the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had
the deceased known the adoption to be spurious, she would not have instituted the respondents at
all — the basis of the institution being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening
of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the
rights of the parties in barring the petitioners nephews and niece from registering their claim even to
properties adjudicated by the decedent in her will?

Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the institution of heirs must be stated in the will; second,
the cause must be shown to be false; and third, it must appear from the face of the will that the
testator would not have made such institution if he had known the falsity of the cause.

The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under the law she could not do otherwise.
If this were indeed what prompted the testatrix in instituting the respondents, she did not make it
known in her will. Surely if she was aware that succession to the legitime takes place by operation of
law, independent of her own wishes, she would not have found it convenient to name her supposed
compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own
proposition, is highly speculative of what was in the mind of the testatrix when she executed her will.
One fact prevails, however, and it is that the decedent's will does not state in a specific or
unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis
of guesswork or uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still such institution must stand.

Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause
the testator may have written in his will for the institution of heirs. Such institution may be annulled
only when one is satisfied, after an examination of the will, that the testator clearly would not have
made the institution if he had known the cause for it to be false. Now, would the late Basilia have
caused the revocation of the institution of heirs if she had known that she was mistaken in treating
these heirs as her legally adopted children? Or would she have instituted them nonetheless?

The decedent's will, which alone should provide the answer, is mute on this point or at best is vague
and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed
from the language of the law on succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way she did if she had known that she was not
bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the
children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria.
Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then the petitioners
and the other nephews and nieces would succeed to the bulk of the testate by intestacy — a result
which would subvert the clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the
Civil Code: "The words of a will are to receive an interpretation which will give to every expression
some effect, rather than one which will render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention
on the part of the testator to dispose of practically his whole estate, 2 as was done in this case.
Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. 3 A
probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of
testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence.
In this situation, it becomes our duty to give full expression to her will. 4

At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a
separate action brought for that purpose, and cannot be the subject of a collateral attack. 5

To the petitioners' charge that the lower court had no power to reverse its order of December 22,
1959, suffice it to state that, as borne by the records, the subsequent orders complained of served
merely to clarify the first — an act which the court could legally do. Every court has the inherent
power to amend and control its processes and orders so as to make them conformable to law and
justices.6 That the court a quo has limited the extent of the petitioners' intervention is also within its
powers as articulated by the Rules of Court.7

ACCORDINGLY, the present petition is denied, at petitioners cost.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and
Villamor, JJ., concur.

Footnotes

G.R. No. 45425 March 27, 1992

CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO and REMEDIOS L. VDA.

DE GUINTO, petitioners, 
vs.
HON. JUDGE ERNESTO TENGCO of the Court of First Instance of Negros Occidental,
Bacolod City, Branch IV and RODOLFO LIZARES and AMELO LIZARES, as Judicial
Administrators of the Estate of the late EUSTAQUIA LIZARES, respondents.

G.R. No. 45965 March 27, 1992

ROLDOFO LIZARES and AMELO LIZARES, as Judicial Administrators of the ESTATE OF

EUSTAQUIA LIZARES, petitioners, 
vs.
HON. JUDGE ERNESTO TENGCO, CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE
PANLILIO and REMEDIOS VDA. DE GUINTO, respondents.

ROMERO, J.:

These consolidated cases seek to annul the orders   dated September 20, 1976, January 7, 1977
1

and January 31, 1977 of the then Court of First Instance of Negros Occidental, Branch, IV
respectively, cancelling the notice of lis pendens filed by Celsa L. Vda. de Kilayko, et al. with the
Register of Deeds of Negros Occidental, denying the motion for reconsideration of the order dated
September 20, 1976 filed by Celsa L. Vda. de Kilayko, et al., and holding in abeyance the resolution
of defendants' motion to dismiss.

The undisputed facts of the case are as follows:

On November 20, 1962, the late Maria Lizares y Alunan executed a "Testamento"   which contains
2

among its provisions, the following:

DECIMA — Asimismo, ordeno y dispongo que mi participacion consistente en una

tercera parte (1/3) de una catorce (1/14) avas partes proindivisas de la Hda.
Minuluan, que he adquirido mediante permuta de mi hermano Dr. Antonio A. Lizares,
se adjudique, como por el presente se adjudica, a mi sobrina Eustaquia Lizares;
ENTENDIENDOSE, sin embargo, que en el caso de que mi citada sobrina
Eustaquia Lizares muera soltera o sin descendientes legitimos, mi referida
participacion en la Hda. Minuluan se adjudicara a mi hermano Antonio A. Lizares
que me sobrevivan.

UNDECIMA — Tambien ordeno y dispongo que el resto de todas mis propiendades,

incluyendo mis participaciones, derechos e intereses (no dispuestos mas arriba) an
las Haciendas "Minuluan" (Lotes Nos. 439, 403, 1273, 1274, 1278, 1279 y 1280 del
Catastro de Talisay, Negros Occidental), y "Matab-ang" (Lotes Nos. 514, 550, 552,
553 y 1287-C del Catastrado de Talisay, Negros Occidental), situadas en el
Municipio de Talisay, Provincia de Negros Occidental, I.F., el resto de mis acciones
en la Central Talisay-Silay Milling Co., Inc. (unas 2,860 acciones) y de la Financing
Corporation of the Philippines (unas 53,636 acciones), registradas a mi nombre y no
heredadas de mi difunta madre Dña. Enrica A. Vda. de Lizares, mis acciones en la
Central Bacolod-Murcia Milling Co., Inc., Negros Navigation Co. y otras Compañas
Mineras, y todos los demas bienes no mencionados en este testamento y que me
pertenezcan en la fecha de mi muerte, se adjudiquen, como por el presente
adjudico, a mi sobrina Srta. Eusaquia Lizares, hija de mi difunto hermano Don
Simplicio Lizares cuidados que mi citada sobrina me ha prestado y signe
prestandome hasta ahora. Ordeno, sin embargo, a mi referida sobrina, Srta.
Eustaquia Lizares, que ella se haga cargo de pagar todas las obligaciones que tengo
y que gravan sobre las propriedades adjudicadas a la misma. Asimismo ordeno a mi
citada sobrina que ella mande celebrar una Misa Gregoriana cada año en sufragio
de mi alma, y misas ordinarias en sufragio de las almas de mi difunto Padre y de mi
difunta Madre, el 6 de Marzo y 17 de Deciembre de cada año, respectivamente, y
mande celebrar todos los años la fiesta de San Jose en Talisay como lo hago hasta
ahora. En el caso de que mi citada sobrina, Srta. Eustaquia Lizares, falleciere sin
dejar descendientes legitimos, ordeno y dispongo que mi participacion consistente
en una sexta parte (1/6) de la Hda. Matab-ang, con su correspondiente cuota de
azucar y otros mejoras, se adjudique a mis hermanas y hermano antes
mencionados y que me sobrevivan (Emphasis supplied)

On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the
possession and custody of her niece, Eustquia Lizares.  On February 6, 1968, Eustaquia filed a
3

petition for the settlement of the testate estate of Maria Lizares y Alunan, before the Court of First
Instance of Negros Occidental, Branch IV, docketed as Special Proceedings No. 8452.  4
The required publication of the notice of hearing of the petition having been made, in due course, the
probate court issued an order declaring the will probated and appointing Eustaquia as the executrix
of the estate of Maria Lizares.  5

On July 10, 1968, Eustaquia filed a project of partition   which was granted by the probate court in an
6

order dated January 8, 1971. Simultaneously, said court declared the heirs, devisees, legatees and
usufructuaries mentioned in the project of partition as the only heirs, devisees, legatees and
usufructuaries of the estate; adjudicated to them the properties repectively assigned to each and
every one of them, and ordered the Register of Deeds of Negros Occidental and Bacolod City to
effect the corresponding transfer of the real properties to said heirs as well as the transfer of shares,
stocks, and dividends in different corporations, companies and partnerships in the name of Maria
Lizares to the heirs and legatees, and the closure of the testate proceedings of Maria Lizares.  7

Thereafter, Eustaquia filed an urgent motion to reopen the testate proceedings in order that some
properties of Maria Lizares which had been omitted in the partition be adjudicated to her. 8 The Court
granted the motion and correspondingly reopened the testate proceedings. It adjudicated to Eustaquia certain shares of stocks, a revolving
fund certificate, plantation credits and sugar quota allocations, and real or personal properties of Maria Lizares which were not given by her
to any other person in her last will and testament. 9

On November 28, 1972, the heirs of Maria Lizares, namely: Encarnacion L. Vda. de Panlilio,
Remedios L. Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and Eustaquia
Lizares executed an agreement of partition and subdivision, thereby terminating their co-ownership
over Lots Nos. 550, 514, 553, 1287-C of plan SWO-7446, and 552, all of the Cadastral Survey of
Talisay covered by Transfer Certificates of Title Nos. T-65004, T-65005; T-65006, T-65007, and T-
65008.  10

A year later or on November 23, 1973, Eustquia Lizares died single without any descendant.   In due 11

time, Rodolfo Lizares and Amelo Lizares were appointed joint administrators of Eustquia's intestate
estate.

On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of
Maria Lizares, which were allegedly in the nature of a simple substitution, Celsa Vda. de Kilayko,
Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto (hereinafter collectively referred to as
Celsa L. Vda. de Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to reopen once
again the testate estate proceedings of Maria Lizares. They prayed among others that a substitute
administrator be appointed; that the order dated January 8, 1971 be reconsidered and amended by
declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of which
form an aggregate area of 33 hectares; that the Register of Deeds of Negros Occidental, after such
amendment, be ordered to register at the back of their respective certificates of title, the order of
probate and a "declaration" that movants are the heirs of said properties, and correspondingly issue
new certificates of title in their names.  12

Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely: Socorro L. Vda. de
Escario, Rodolfo Lizares, Mario Lizares, Lucrecia Gustilo, and Aurora Lizares Wagner opposed the
aforesaid motion. They alleged that the court had no more jurisdiction to reopen the testate estate
proceedings of Maria Lizares as the order of closure had long become final and that the
testamentary provisions sought to be enforced are null and void. 13

On April 6, 1974, the Court issued an order denying the motion to reopen the testate proceedings
and holding that inasmuch as the settlement of an estate is a proceeding in rem, the judgment
therein is binding against the whole world. It observed that inspite of the fact that the movants knew
that the court had jurisdiction over them, they did not take part in the proceedings nor did they
appeal the order of January 8, 1971. Thus, the court concluded, even if the said order was
erroneous, and since the error was not jurisdictional, the same could have been corrected only by a
regular appeal. The period for filing a motion for reconsideration having expired, the court opined
that the movants could have sought relief from judgment under Rule 38 of the Rules of Court, but
unfortunately for the movants, the period for filing such remedy had also elapsed.  14

Celsa L. Vda. de Kilayko, et al. then filed a motion for reconsideration of said order. It was denied on
June 17, 1974.   Hence, on October 14, 1974, the said movants filed a complaint for recovery of
15

ownership and possession of real property against the joining administrators of the estate of
Eustaquia Lizares, Rodolfo and Amelo Lizares. It was docketed as Civil Case No. 11639 with the
then Court of First Instance of Negros Occidental, Branch IV.   On the same date, they availed of
16

their rights under Rule 14, Section 24 of Rules of Court 

by filing a notice of lis pendens with the Register of Deeds of Negros Occidental.  17

As duly appointed judicial joint administrators of the estate of the late Eustaquia Lizares, Rodolfo
Lizares and Amelo Lizares (the joint administrators for brevity), filed a motion to dismiss alleging that
the court had no jurisdiction over the subject matter or nature of the case; the cause of action was
barred by prior judgment, and the complaint stated no cause of action.   This motion was opposed
18

by the plaintiffs.

On January 23, 1975, the joint administrators filed a motion for the cancellation of the notice of lis
pendens on the contentions that there existed exceptional circumstances which justified the
cancellation of the notice of lis pendensand that no prejudice would be caused to the plaintiffs.   The
19

latter opposed said motion. The defendants having filed a reply thereto, the plaintiffs filed a rejoinder
reiterating their arguments in their opposition to the motion for cancellation of notice of lis pendens. 20

On September 20, 1976, respondent judge issued an order granting the motion for cancellation of
notice of lis pendens.   The court simultaneously held in abeyance the resolution of the motion to
21

dismiss the complaint.

The joint administrators filed the answer to the complaint in Civil Case No. 11639.   Thereafter, they
22

filed a motion for preliminary hearing on affirmative defenses.   Celsa L. Vda. de Kilayko, et al.
23

vigorously opposed said motion.  24

On November 3, 1976, Celsa L. Vda. de Kilayko, et al. filed a motion praying for the reconsideration
of the order dated September 20, 1976.   The joint administrators having filed an opposition
25

thereto,   on January 7, 1977 the lower court denied the aforesaid motion for reconsideration.   It
26 27

held that while a notice of lis pendens would serve as notice to strangers that a particular property
was under litigation, its annotation upon the certificates of title to the properties involved was not
necessary because such properties, being in custodia legis, could not just be alienated without the
approval of the court. Moreover, the court added, a notice of lis pendens would prejudice any effort
of the estate to secure crop loans which were necessary for the viable cultivation and production of
sugar to which the properties were planted.

Upon receipt of a copy of said order, Celsa L. Vda. de Kilayko, et al. filed in this Court a motion for
extension of time to file a petition for review on certiorari. Docketed as G.R No. L-45425, the petition
contends that the grounds of lis pendens, namely, that the properties are in custodia legis and the
lending institutions would not grant crop loans to the estate, are not the legal grounds provided for
under Sec. 24, Rule 14 of the Rules of Court for the cancellation of a notice of lis pendens.

Meanwhile, on January 31, 1977, the lower court issued an order stating that since on September
21, 1976 it had held in abeyance the resolution of the motion to dismiss, it was also proper to
suspend the resolution of the affirmative defenses interposed by the defendants until after trial on
the merits of the case. Accordingly, the court set the date of pre-trial for March 24, 1977. 28

On April 13, 1977, the joint administrators filed before this Court a petition for certiorari, prohibition
and/or mandamus with prayer for a writ of preliminary injunction. It was docketed as G.R. No. L-
45965. Petitioners contend that the lower court had no jurisdiction over Civil Case No. 11639 as it
involves the interpretation of the will of Maria Lizares, its implementation and/or the adjudication of
her properties. They assert that the matter had been settled in Special Proceedings No. become
final and unappealable long before the complaint in Civil Case No. 8452 which had become final and
unappealable long before the complaint in Civil Case No. 11639 was filed, and therefore, the cause
of action in the latter case was barred by the principle of res judicata. They aver that the claim of
Celsa, Encarnacion and Remedios, sisters of Maria Lizares, over the properties left by their niece
Eustaquia and which the latter had inherited by will from Maria Lizares, was groundless because
paragraphs 10 and 11 of Maria's will on which Celsa L. Vda. de Kilayko, et al. base their claim,
conceived of a fideicommissary substitution of heirs. Petitioners contend that said provisions of the
will are not valid because under Article 863 of the Civil code, they constitute an invalid
fideicommissary substitution of heirs.

On April 26, 1977, this Court issued a temporary restraining order enjoining the lower court from
further proceeding with the trial of Civil Case No. 11639.   After both G.R. Nos. L-45425 and L-
29

45965 had been given due course and submitted for decision, on January 20, 1986, the two cases
were consolidated.

The petition in G.R. No. L-45965 is impressed with merit.

In testate succession, there can be no valid partition among the heirs until after the will has been
probated.   The law enjoins the probate of a will and the public requires it, because unless a will is
30

probated and notice thereof given to the whole world, the right of a person to dispose of his property
by will may be rendered nugatory.   The authentication of a will decides no other question than such
31

as touch upon the capacity of the testator and the compliance with those requirements or
solemnities which the law prescribes for the validity of a will. 
32

Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is Section 1, Rule 90 of the
Rules of Court which reads:

Sec. 1. When order for distribution of residue made. — When the debts, funeral
charges, and expenses of administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in accordance with law, have been
paid, the court, on application of the executor or administrator, or of a person
interested in the estate, and after hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming them and the proportions or parts,
to which each is entitled, and such persons may demand and recover their
respective shares from the executor or administrator, or any other person having the
same in his possession. If there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive shares to which each
person is entitled under the law, the controversy shall be heard and decided as in
ordinary cases.

No distribution shall be allowed until the payment of the obligations above-mentioned

has been made or provided for, unless the distributees, or any of them give a bond,
in a sum to be fixed by the court, conditioned for the payment of said obligations
within such time as the court directs.
Applying this rule, in the cases of De Jesus v. Daza,   and Torres v. Encarnacion,   the Court said:
33 34

. . . (T)he probate court, having the custody and control of the entire estate, is the
most logical authority to effectuate this provision, within the estate proceeding, said
proceeding being the most convenient one in which this power and function of the
court can be exercised and performed without the necessity of requiring the parties
to undergo the incovenience and litigate an entirely different action.

Some decisions of the Court pertinent to the issue that the probate court has the jurisdiction to settle
the claims of an heir and the consequent adjudication of the properties, are worth mentioning. In the
cases of Arroyo v. Gerona,  and Benedicto v. Javellana,   this Court said:
35 36

. . . any challenge to the validity of a will, any objection to the authentication thereof,
and every demand or claim which any heir, legatee or party interested in a testate or
intestate succession may make, must be acted upon and decided within the same
special proceedings, not in a separate action, and the same judge having jurisdiction
in the administration of the estate shall take cognizance of the question raised,
inasmuch as when the day comes he will be called upon to make distribution and
adjudication of the property to the interested parties. . . . (Emphasis supplied)

The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to
determine the proportion or parts to which each distributee is entitled . . ..   A project of partition is
37

merely a proposal for the distribution of the heredity estate which the court may accept or reject. It is
the court that makes that distribution of the estate and determines the persons entitled thereto.  38

In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares,
the executrix, Eustaquia Lizares submitted on January 8, 1971, a project of partition in which the
parcels of land, subject matters of the complaint for reconveyance, were included as property of the
estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In accordance with said
project of partition which was approved by the probate court, Encarnacion Lizares Vda. de Panlilio,
Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and
Eustaquia Lizares executed an Agreement of Partition and Subdivision on November 28, 1972,
whereby they agreed to terminate their co-ownership over Lots Nos. 550, 514, 553, 1287-C of SWO-
7446 and 552 covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-65006, T-65007
and T-65008. These facts taken altogether show that the Lizares sisters recognized the decree of
partition sanctioned by the probate court and in fact reaped the fruits thereof.

Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise
of a complaint for reconveyance. A party cannot, in law and in good conscience be allowed to reap
the fruits of a partition, agreement or judgment and repudiate what does not suit him.   Thus, where
39

a piece of land has been included in a partition and there is no allegation that the inclusion was
affected through improper means or without petitioner's knowledge, the partition barred any further
litigation on said title and operated to bring the property under the control and jurisdiction of the court
for its proper disposition according to the tenor of the partition.   The question of private respondents
40

title over the lots in question has been concluded by the partition and became a closed matter.

The admission made by Celsa L. Vda. de Kilayko, et al. in their complaint, Civil Case No. 11639, that
Eustaquia had been in possession of the questioned lots since March 2, 1971 up to the time of her
death indicates that the distribution pursuant to the decree of partition has already been carried out.
Moreover, it cannot be denied that when Celsa L. Vda. de Kilayko, et al. moved for the reopening of
the testate estate proceedings of Maria Lizares, the judicial decree of partition and order of closure
of such proceedings was already final and executory, then reglementary period of thirty (30) days
having elapsed from the time of its issuance, with no timely appeal having been filed by them.
Therefore, they cannot now be permitted to question the adjudication of the properties left by will of
Maria Lizares, by filing an independent action for the reconveyance of the very same properties
subject of such partition.

A final decree of distribution of the estate of a deceased person vests the title to the land of the
estate in the distributees. If the decree is erroneous, it should be corrected by opportune appeal, for
once it becomes final, its binding effect is like any other judgment in rem, unless properly set aside
for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution and the
same has become final, the validity or invalidity of the project of partition becomes irrelevant. 41

It is a fundamental concept in the origin of every jural system, a principle of public policy, that at the
risk of occasional errors, judgments of courts should become final at some definite time fixed by
law, interest rei publicae ut finis sit litum. "The very object of which the courts were constituted was
to put an end to controversies."   The only instance where a party interested in a probate proceeding
42

may have a final liquidation set aside is when he is left out by reason of circumstances beyond his
control or through mistake or inadvertence not imputable to negligence. Even then, the better
practice to secure relief is the opening of the same by proper motion within the reglementary period,
instead of an independent action, the effect of which if successful, would be for another court or
judge to throw out a decision or order already final and executed and reshuffle properties long ago
distributed and disposed of.  43

The fundamental principle upon which the doctrine of res judicata rests is that parties ought not to be
permitted to litigate the same issue more than once, that, when a right or fact has been judicially
tried and determined by a court of competent jurisdiction, or an opportunity for such trial has been
given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the
parties and those in privity with them in law or estate. 
44

All the requisites for the existence of res judicata are present. Thus, the order approving the
distribution of the estate of Maria Lizares to the heirs instituted in said will has become final and
unappealable; the probate court that rendered judgment had jurisdiction over the subject matter and
over the parties; the judgment or orders had been rendered on the merits; the special proceedings
for the settlement of the estate of Maria Lizares was a proceeding in rem that was directed against
the whole world including Celsa L. Vda. de Kilayko, et al., so that it can be said that there is a
similarity of parties in Special Proceedings No. 8452 and Civil Case No. 11639, the judicial
administrators of Eustaquia being privy to Celsa L. Vda. de Kilayko, et al.; there is identity of subject
matter involved in both actions, namely, the properties left by Maria Lizares; there is identity of
causes of action because in the first action there was a declaration of the probate court in its order
dated April 6, 1974 that although the testatrix intended a fideicommissary substitution in paragraphs
10 and 11 of her will, the substitution can have no effect because the requisites for it to be valid, had
not been satisfied. 45

Granting that res judicata has not barred the institution of Civil Case No. 11639, the contention of
Celsa L. Vda. de Kilayko, et al. that they are conditional substitute heirs of Eustaquia in the testate
estate of Maria Lizares   is not meritorious. While the allegation of the joint administrators that
46

paragraphs 10 and 11 of Maria Lizares' last will and testament conceives of a fideicommissary
substitution under Article 863 of the Civil Code is also baseless as said paragraphs do not impose
upon Eustaquia a clear obligation to preserve the estate in favor of Celsa L. Vda. de Kilayko, et al.,
neither may said paragraphs be considered as providing for a vulgar or simple substitution.

It should be remembered that when a testator merely names an heir and provides that if such heir
should die a second heir also designated shall succeed, there is no fideicommissary substitution.
The substitution should then be construed as a vulgar or simple substitution under Art. 859 of the
Civil Code but it shall be effective only if the first heir dies before the testator.   In this case, the
47

instituted heir, Eustaquia, survived the testatrix, Maria Lizares. Hence, there can be no substitution
of heirs for, upon Maria Lizares' death, the properties involved unconditionally devolved upon
Eustaquia. Under the circumstances, the sisters of Maria Lizares could only inherit the estate of
Eustaquia by operation of the law of intestacy.

With respect to the cancellation of the notice of lis pendens on the properties involved, there is no
merit in the contention of Celsa L. Vda. de Kilayko, et al., that the lower court acted contrary to law
and/or gravely abused its discretion in cancelling the notice of lis pendens. The cancellation of such
a precautionary notice, being a mere incident in an action, may be ordered by the court having
jurisdiction over it at any given time.   Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis
48

pendens may be cancelled "after proper showing that the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect the rights of the party who caused it to be
recorded."   In this case, the lower court ordered the cancellation of said notice on the principal
49

reason that the administrators of the properties involved are subject to the supervision of the court
and the said properties are under custodia legis. Therefore, such notice was not necessary to
protect the rights of Celsa L. Vda. de Kilayko, et al. More so in this case where it turned out that their
claim to the properties left by Eustaquia is without any legal basis.

WHEREFORE, the petition for review on certiorari in L-45425 is hereby DENIED but the petition
for certiorari and prohibition and/or mandamus in L-45965 is GRANTED. The temporary restraining
order of April 26, 1977 which was issued by the Court in L-45965 is made PERMANENT. Costs
against the petitioners in L-45425.

SO ORDERED.

Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

Feliciano, J., is on leave.

ESTATE 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: —

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 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.

Aquino J., took no part.

ONSOLACION 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 Dña. 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
one-half 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; .1äwphï1.ñët

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 Dña. 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
called sustitucion 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 Dña. 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.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and
De Leon, JJ., concur.

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