FIRST DIVISION

[G.R. No. 47799. May 21, 1943.]

Administration of the estate of Agripino Neri y Chavez. ELEUTERIO
NERI ET AL., Petitioners, v. IGNACIA AKUTIN AND HER
CHILDREN, Respondents.
Ozamis & Capistrano, for Petitioners.
Gullas, Leuterio, Tanner & Laput for Respondents.
SYLLABUS
1. DESCENT AND DISTRIBUTION; EFFECT OF PRETERITION.
According to the findings of fact in this case, the testator left all his
property by universal title to the children by his second marriage, and
that without expressly disinheriting the children by his first marriage, he
left nothing to them or, at least, some of them. Held: That this is a case of
preterition governed by article 814 of the Civil Code, which provides that
the institution of heirs shall be annulled and intestate succession should
be
declared
open.
2. ID.; ID.; RESPECTIVE SCOPE OF ARTICLES 814, 817, AND 851 OF
THE CIVIL CODE. The following example will make the question
clearer: The testator has two legitimate sons, A and B, and in his will he
leaves all his property to A, with total preterition of B. Upon these facts,
shall the court annul entirely the institution of heir in favor of A and
declare a total intestacy, or shall it merely refuse the bequest left to A,
giving him two-thirds, that is, one-third of free disposal and one-third of
betterments, plus one-half of the other third as strict legitime, and
awarding B only the remaining one-half of the strict legitime? If the court
1
does the first, it applies article 814; if the second, it applies articles
851 or
817. But article 851 applies only in cases of unfounded disinheritance,
and all are agreed that the present case is not one of disinheritance but
of preterition. Article 817 is merely a general rule inapplicable to specific
cases provided by law, such as that of preterition or disinheritance.
3. ID.; ID.; ID.; LEGACIES AND BETTERMENTS SHOULD BE
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RESPECTED IN SO FAR AS THEY ARE NOT INOFFICIOUS OR

EXCESSIVE. The annulment of the institution of heirs in cases of
preterition does not always carry with it the ineffectiveness of the whole
will. Neither Manresa nor Sanchez Roman nor this court has ever said
so. If, aside from the institution of heirs, there are in the will provisions
leaving to the heirs so instituted or to other persons some specific
properties in the form of legacies or mejoras, such testamentary
provisions shall be effective and the legacies and mejoras shall be
respected in so far as they are not inofficious or excessive, according to
article 814. In the instant case, however, no legacies or mejoras are
provided in the will, the whole property of the deceased having been left
by universal title to the children of the second marriage. The effect,
therefore, of annulling the institution of heirs will be necessarily the
opening
of
a
total
intestacy.
4. ID.; ID.; ID.; INSTITUTION OF HEIRS DISTINGUISHED FROM
LEGACIES AND BETTERMENTS. The theory is advanced that the
bequest made by universal title in favor of the children by the second
marriage should be treated as legado and mejora and, accordingly, it
must not be entirely annulled but merely reduced. This theory, if adopted,
will result in a complete abrogation of articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the
concept of legacies and betterments reducing the bequest accordingly,
then the provisions of articles 814 and 851 regarding total or partial
nullity of the institution, would be absolutely meaningless and will never
have any application at all. And the remaining provisions contained in
said articles concerning the reduction of inofficious legacies or
betterments would be a surplusage because they would be absorbed by
article 817. This, instead of construing, this court would be destroying
integral
provisions
of
the
Civil
Code.
5. ID.; ID.; ID.; ID. The destructive effect of the theory thus advanced
is due mainly to a failure to distinguish institution of heirs from legacies
and betterments, and a general from a special provision. With reference
to article 814, which is the only provision material to the disposition of
this case, it must be observed that the institution of heirs is therein dealt
with as a thing separate and distinct from legacies or betterment. And
they are separate and distinct not only because they are distinctly and
separately treated in said article but because they are in themselves

different. Institution of heirs is a bequest by universal title of property that

is undetermined. Legacy refers to specific property bequeathed by a
particular or special title. The first is also different from a betterment
which should be made expressly as such (article 828). The only instance
of implied betterment recognized by law is where legacies are made
which cannot be included in the free portion (article 828). But again an
institution
of
heirs
cannot
be
taken
as
a
legacy.
6. ID.; ID.; ID.; ID. It is clear, therefore, that article 814 refers to two
different things which are the two different objects of its two different
provisions. One of these objects cannot be made to merge in the other
without mutilating the whole article with all its multifarious connections
with a great number of provisions spread throughout the Civil Code on
the matter of succession. It should be borne in mind, further, that
although article 814 contains two different provisions, its special purpose
is to establish a specific rule concerning a specific testamentary
provision; namely, the institution of heirs in a case of preterition. Its other
provision regarding the validity of legacies and betterments if not
inofficious is a mere reiteration of the general rule contained in other
provisions (articles 815 and 817) and signifies merely that it also applies
in
cases
of
preterition.
7. ID.; ID.; ID.; ID.; STATUTORY CONSTRUCTION. As regards
testamentary dispositions in general, the general rule is that all
"testamentary dispositions which diminish the legitime of the forced heirs
shall be reduced on petition of the same in so far as they are inofficious
or excessive" (article 817). But this general rule does not apply to the
specific instance of a testamentary disposition containing an institution of
heirs in a case of preterition, which is made the main and specific subject
of article 814. In such instance, according to article 814, the testamentary
disposition containing the institution of heirs should be not only reduced
but annulled in its entirety and all the forced heirs, including the omitted
ones, are entitled to inherit in accordance with the law 2of intestate
succession. It is thus evident that, if, in construing article 814, the
institution of heirs therein dealt with is to be treated as legacies or
betterments, the special object of said article would be destroyed, its
specific purpose completely defeated, and in that wise the special rule
therein established would be rendered nugatory. And this is contrary to
the most elementary rule of statutory construction. In construing several
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provisions of a particular statute, such construction shall be adopted as

will give effect to all, and when general and particular provisions are
inconsistent, the latter shall prevail over the former. (Act No. 190, secs.
287
and
288.)
8. ID.; ID.; ID.; ID.; ID.; "HEREDERO" UNDER THE CIVIL CODE AND
"HEIR" UNDER THE CODE OF CIVIL PROCEDURE. It is maintained
that the word "heredero" under the Civil Code, is not synonymous with
the term "heir" under the Code of Civil Procedure, and that the "heir"
under the latter Code is no longer personally liable for the debts of the
deceased as was the "heredero" under the Civil Code, should his
acceptance be pure and simple, and from all these the conclusion is
drawn that the provisions of article 814 of the Civil Code regarding the
total nullity of the institution of heirs has become obsolete. This
conclusion is erroneous. It confuses form with substance. It must be
observed, in this connection, that in construing and applying a provision
of the Civil Code, such meaning of its words and phrases as has been
intended by the framers thereof shall be adopted. If thus construed it is
inconsistent with the provisions of the Code of Civil Procedure, then it
shall be deemed repealed; otherwise it is in force. Repeals by implication
are not favored by the courts and when there are two acts upon the
same subject, effect should be given to both if possible (Posadas v.
National
City
Bank,
296
U.
S.,
497).
9. ID.; ID.; ID.; ID.; ID.; ID. The word "heir" as used in article 814 of
the Civil Code may not have the meaning that it has under the Code of
Civil Procedure, but this in no wise can prevent a bequest from being
made by universal title as is in substance the subject matter of article 814
of the Civil Code. Again, it may also be true that heirs under the Code of
Civil Procedure may receive the bequest only after payment of debts left
by the deceased and not before as under the Civil Code, but this may
have a bearing only upon the question as to when succession becomes
effective and can in no way destroy the fact that succession may still be
by universal or special title. Since a bequest may still be made by
universal title and with preterition of forced heirs, its nullity as provided in
article 814 still applies there being nothing inconsistent with it in the Code
of Civil Procedure. What is important and is the basis for its nullity is the
nature and effect of the bequest and not its possible name nor the
moment of its effectiveness under the Code of Civil Procedure.

part
DECISION

of

the

estate

of

the

latter."

Concerning Getulia who died about eight years before the death of her
father Agripino Neri, the trial Court found that "neither Getulia nor her
heirs received any share of the properties."

MORAN, J.:

This is a case where the testator in his will left all his property by
universal title to the children by his second marriage, the herein
respondents, with preterition of the children by his first marriage, the
herein petitioners. This Court annulled the institution of heirs and
declared
a
total
intestacy.

And with respect to Rosario and Celerina, the trial Court said that "it does
not appear clear, therefore, that Celerina and Rosario received their
shares in the estate left by their father Agripino Neri Chaves."

This is in connection with the property, real or personal, left by the

deceased. As to money advances, the trial Court found.

A motion for reconsideration has been filed by the respondents on the

ground (1) that there is no preterition as to the children of the first
marriage who have received their shares in the property left by the
testator, and (2) that, even assuming that there has been a preterition,
the effect would not be the annulment of the institution of heirs but simply
the
reduction
of
the
bequest
made
to
them.

"It is contended, furthermore, that the children of Agripino Neri Chaves in

his first marriage received money from their father. It appears that
Nemesio Chaves is indebted in the amount of P1,000; Agripino, in the
amount of P500 as appears in Exhibits 14 and 15; Getulia, in the amount
of P155 as appears in Exhibits 16, 17, and 18; Celerina in the amount of
P120
as
appears
in
Exhibits
19,
19-A
and
19-B."

1. The findings of the trial court and those of the Court of Appeals are
contrary to respondents first contention. The children of the first marriage
are Eleuterio, Agripino, Agapita, Getulia (who died a little less than eight
years before the death of her father Agripino Neri, leaving seven
children),
Rosario
and
Celerina.

From these findings of the trial Court it is clear that Agapita, Rosario and
the children of Getulia had received from the testator no property
whatsoever,
personal,
real
or
in
cash.

As to Eleuterio, the trial court said that "it is not, therefore, clear that
Eleuterio has received his share out of the properties left by his father." It
is true that Eleuterio appears to have received, as a donation from his
father, parcel of land No. 4, but the question of whether there has been a
3
donation or not is apparently left for decision in an independent action,
and to that effect Ignacia Akutin has been appointed special
administratrix for the purpose of instituting such action.

But clause 8 of the will is invoked wherein the testator made the
statement that the children by his first marriage had already received
their shares in his property excluding what he had given them as aid
during their financial troubles and the money they had borrowed from him
which he condoned in the will. Since, however, this is an issue of fact
tried by the Court of First Instance, and we are reviewing the decision of
the Court of Appeals upon a question of law regarding that issue, we can
rely only upon the findings of fact made by the latter Court, which are as
follows:

With respect to Agripino and Agapita, the parcels of land which they have
occupied, according to the trial Court, "are a part of public land which
had been occupied by Agripino Neri Chaves, and, therefore, were not a

"Since all the parcels that corresponded to Agripino Neri y Chaves are
now in the administrators possession, as appears in the inventory filed in
court, it is clear that the property of the deceased has remained intact

SUCCESSION

and that no portion thereof has been given to the children of the first
marriage.
x

"It is stated by the court and practically admitted by the appellants that a
child of the first marriage named Getulia, or her heirs after her death, did
not receive any share of the property of her father."cralaw virtua1aw
library
It is true that in the decision of the Court of Appeals there is also the
following
paragraph:
"As regards that large parcel of land adjoining parcel No. 1, it is
contended that after the court had denied the registration thereof,
Agripino Neri y Chaves abandoned the said land and that later on some
of the children of the first marriage possessed it, thereby acquiring title
and interest therein by virtue of occupation and not through inheritance. It
is not true that this parcel containing 182.6373 hectares is now assessed
in the names of some of the children of the first marriage, for as shown
on Tax Declaration No. 9395, Exhibit 11-g, the owners of the property are
Agapita Neri de Chaves y Hermanos. Apparently, the said land is still
claimed to be the property not only of the children of the first marriage
but
also
of
those
of
the
second
marriage."
This paragraph is but a corroboration of the finding made by the Court of
Appeals that no property has ever been advanced by the testator to the
children by his first marriage. The large parcel of land adjoining parcel
No. 1 was alleged by the children of the second marriage to have been
advanced by the testator to the children by his first marriage; but the
Court of Appeals belied this claim. "It is not true," says that Court, "that
this parcel containing 182.6373 hectares is now assessed in the names
of some of the children of the first marriage, for as shown on Tax
Declaration No. 9395, Exhibit 11-g, the owners of the property are
Agapita Neri de Chaves y Hermanos," that is, the children
of both
4
marriages. And the Court of Appeals added that "apparently, the said
land is still claimed to be the property not only of the children of the first
marriage but also of those of the second marriage," which is another way
of stating that the property could not have been advanced by the testator
to the children by the first marriage, for otherwise the children by the
second
marriage
would
not
lay
a
claim
on
it.
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We conclude, therefore, that according to the findings of fact made by

the Court of Appeals, the testator left all his property by universal title to
the children by his second marriage, and that without expressly
disinheriting the children by his first marriage, he left nothing to them or,
at least, some of them. This is, accordingly, a case of preterition
governed by article 814 of the Civil Code, which provides that the
institution of heirs shall be annulled and intestate succession should be
declared
open.
2. Upon the second question propounded in the motion for
reconsideration, respondents seem to agree that article 814 of the Civil
Code is the law applicable but, in their discussion as to the effect of
preterition, they confuse article 814 with articles 817 and 851 and other
articles of the Civil
Code. These three
articles read:
"ART. 814. The preterition of one or of all of the forced heirs in the direct
line, whether living at the execution of the will or born after the death of
the testator, shall annul the institution of heirs; but the legacies and
betterments shall be valid in so far as they are not inofficious.
"The preterition of the widower or widow does not annul the institution;
but the person, omitted shall retain all the rights granted to him by
articles
834,
835,
836,
and
837
of
this
Code.
"If the forced heirs omitted die before the testator, the institution shall
become
operative."
"ART. 817. Testamentary dispositions which diminish the legitime of the
forced heirs shall be reduced on petition of the same in so far as they are
inofficious
or
excessive."
"ART. 851. Disinheritance made without a statement of the cause, or for
a cause the truth of which, if contested, is not shown, or which is not one
of those stated in the four following articles, shall annul the institution of
heirs in so far as it is prejudicial to the disinherited person; but the
legacies, betterments, and other testamentary dispositions shall be valid
in so far as they are not prejudicial to said legitime."
The following example will make the question clearer: The testator has
two legitimate sons, A and B, and in his will he leaves all his property to
A, with total preterition of B. Upon these facts, shall we annul entirely the
institution of heir in favor of A and declare a total intestacy, or shall we
merely refuse the bequest left to A, giving him two-thirds, that is, one
third of free disposal and one-third of betterments, plus one-half of the
other third as strict legitime, and awarding B only the remaining one-half

of the strict legitime? If we do the first, we apply article 814; if the second,
we apply articles 851 or 817. But article 851 applies only in cases of
unfounded disinheritance, and all are agreed that the present case is not
one of disinheritance but of preterition. Article 817 is merely a general
rule inapplicable to specific cases provided by law, such as that of
preterition or disinheritance. The meaning of articles 814 and 851, their
difference and philosophy, and their relation to article 817, are lucidly
explained
by
Manresa
in
the
following
manner:
"Cuando la legitima no es usufructuaria, como ocurre en los demas
casos, la pretericion no puede menos de alterar esencialmente la
institucion de heredero. Esta ha de anularse, pero en todo o en parte,
esto es, solo en cuanto perjudique el derecho del legitimario preterido?
El articulo 814 opta por la primera solucion, ya que hemos de atenernos
estrictamente al texto de la ley; mientras que el articulo 851, en casos
analogos,
opta
por
la
segunda.
"En efecto; la desheredacion sin justa causa no produce el efecto de
desheredar. El heredero conserva derecho a su legitima, pero nada mas
que a su legitima. Los legados, las mejoras, si las hay, y aun la
institucion de heredero, son validas en cuanto no perjudiquen al
heredero
forzoso.
"La diferencia se notara perfectamente con un ejemplo. Un solteron, sin
descendientes ni ascendientes legitimos, hace testamento instituyendo
por heredero a un pariente lejano. Despues reconoce un hijo natural, o
se casa y tiene descendencia, y muere sin modificar su disposicion
testamentaria. A su muerte, el hijo natural, o los legitimos, fundandose
en la nulidad total de la institucion, con arreglo al articulo 814, piden toda
la herencia. En el caso del articulo 851 solo podrian pedir su legitima.
Preteridos, adquieren derecho a todo; desheredados, solo les
corresponde un tercio o dos tercios, segun el caso.
"En el fondo la cuestion es identica. El testador puede siempre disponer
a su arbitrio de la parte libre. El legitimario, contra la voluntad expresa
del testador, solo tiene derecho a su legitima. Preterido o desheredado
sin justa causa la legitima es suya. Desheredado o preterido, la porcion
libre no le corresponde, cuando el testador la asigna a otro. Logicamente
5
no cabe que el legitimario, en caso de pretericion, reciba
todos los
bienes cuando el testador haya dispuesto de ellos a titulo de herencia, y
no cuando haya dispuesto del tercio libre a titulo de legado.
"Cual es la razon de esta diferencia? En la generalidad de los casos
puede fundarse el precepto en la presunta voluntad del testador. Este, al
desheredar, revela que existe alguna razon o motivo que le impulsa a
obrar asi; podra no ser bastante para privar al heredero de su legitima,
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pero siempre ha de estimarse suficiente para privarle del resto de la

herencia, pues sobre esta no puede pretender ningun derecho el
desheredado. El heredero preterido no ha sido privado expresamente de
nada; el testador, en los casos normales, obra si por descuido o por
error. Hemos visto un testamento en el que no se instituia heredera a
una hija monja, por creer la testadora que no podia heredar. En otros
casos se ignora la existencia de un descendiente o de un ascendiente.
Cuando el preterido es una persona que ha nacido despues de muerto el
testador o despues de hecho el testamento, la razon es aun mas clara;
la omision ha de presumirse involuntaria; el testador debe suponerse
que hubiera instituido heredero a esa persona si hubiera existido al
otorgarse el testamento, y no solo en cuanto a la legitima, sino en toda la
herencia, caso de no haber otros herederos forzosos, y en iguales
terminos que los demas herederos no mejorados de un modo expreso.
"La opinion contraria puede tambien defenderse, suponiendo que la ley
anula el titulo de heredero, mas no en absoluto la participacion en el
caudal; que asi como al exceptuar la mejora se refiere a todo el tercio o
a la parte de el que haya distribuido el causante, al exceptuar los
legados se refiere a la parte libre de que haya dispuesto el mismo
testador, considerando como un simple legatario de esa porcion a la
persona a quien el testador designo como heredero. Abonaria esta
solucion el articulo 817, al declarar que las disposiciones testamentarias
que menguan la legitima de los herederos forzosos han de reducirse en
cuanto fueren inoficiosas, pues amparado en este articulo el heredero
voluntario, puede pretender que la disposicion a su favor sea respetada
en
cuanto
no
perjudique
a
las
legitimas.
"La jurisprudencia no ha resuelto de frente esta cuestion, porque no se
le ha presentado en los terminos propuestos; pero ha demostrado su
criterio.
"Hemos citado las Resoluciones de la Direccion de 30 de octubre de
1896 y de 20 de mayo de 1898. En la primera se decide con valentia,
con arreglo al texto expreso del articulo 814; la institucion de heredero
se anula en absoluto, y se abre para toda la herencia la sucesion
intestada. En la segunda se rehuye la cuestion, fundandose en
circunstancias secundarias. En el articulo siguiente examinaremos la
sentencia
de
16
de
enero
de
1895.
"La interpretacion que rectamente se desprende del art. 814, es la de
que solo valen, y eso en cuanto no sean inoficiosas, las disposiciones
hechas a titulo de legado o mejora. En cuanto a la institucion de
heredero, se anula. Lo que se anula deja de existir, en todo, o en parte?
No se aade limitacion alguna, como en el articulo 851, en el que se

expresa que se anulara la institucion de heredero en cuanto perjudique a

la legitima del desheredado. Debe, pues, entenderse que la anulacion es
completa o total, y que este articulo, como especial en el caso que le
motiva, rige con preferencia al 817." (6 Manresa, 3.a ed., pags. 351353.)
(Italics
supplied).
The following opinion of Sanchez Roman is to the same effect and
dispels
all
possible
doubt
on
the
matter:
"La consecuencia de la anulacion o nulidad de la institucion de heredero
por pretericion de uno, varios o todos los forzosos en linea recta, es la
apertura de la sucesion intestada, total o parcial. Sera total, cuando el
testador que comete la pretericion, hubiere dispuesto de todos los
bienes por titulo universal de herencia en favor de los herederos
instituidos, cuya institucion se anula, porque asi lo exige la generalidad
del precepto legal del articulo 814, al determinar, como efecto de la
pretericion, el de que anulara la institucion de heredero. Cierto es que la
pretericion esta introducida, como remedio juridico, por sus efectos, en
nombre y para garantia de la integridad de la legitima de los herederos
forzosos y como consecuencia del precepto del 813, de que el testador
no podra privar a los herederos de su legitima, sino en los casos
expresamente determinados por la ley, que son los de desheredacion
con
justa
causa.
"Cierto es, tambien, que en la desheredacion es muy otro el criterio del
Codigo y que su formula legal, en cuanto a sus efectos, es de alcance
mas limitado, puesto que, conforme al articulo 851, la desheredacion
hecha sin condiciones de validez, anulara la institucion de heredero, lo
mismo que la pretericion, pero solo en cuanto perjudique la
desheredado: es decir, nada mas que en lo que menoscabe o
desconozca sus derechos a la legitima, y, por tanto en la parte cuota o
cantidad que represente en el caudal hereditario, atendida la condicion
de legitimario del desheredado de modo ilegal e ineficaz; salvedad o
limitacion de los efectos de nulidad de la institucion hecha en el
testamento, que no existe, segun se ha visto en el 814, por el que se
declara, en forma general e indistinta, que anulara la institucion de
heredero sin ninguna atenuacion respecto de que perjudique o no, total
6
o parcialmente, la cuantia de la legitima del heredero forzoso
en linea
recta,
preterido.
"El resultado de ambos criterios y formulas legales, manifestamente
distintas, tiene que ser muy diverso. En el caso de la pretericion,
propiamente tal o total pues si fuera parcial y se la dejara algo al
heredero forzoso por cualquier titulo, aunque ese algo no fuere suficiente
al pago de sus derechos de legitima, no seria caso de pretericion,
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regulado por el articulo 814, sino de complemento, regido por el 815, y la

institucion no se anularia sino que se modificaria o disminuiria en lo
necesario para dicho complemento o de institucion de heredero en
toda la herencia, al anularse la institucion, por efecto de la pretericion, se
abre la intestada en favor del preterido o preteridos, respecto de toda la
herencia, tambien; mientras que en el caso de desheredacion y de
institucion en la totalidad de la herencia a favor de otra persona, solo se
anulara en la parte precisa para no perjudicar la legitima del
desheredado, que aun siendo en este caso la lata, si no hubo mejoras,
porque no se establecieron o porque los instituidos eran herederos
voluntarios, dejaria subsistente la institucion en la parte correspondiente
al tercio de libre disposicion. Asi es que los preteridos, en el supuesto
indicado, suceden abintestato en todo, en concurrencia con los demas
herederos forzosos o llamados por la ley al abintestato; los
desheredados, unicamente en dos tercios o en uno tan solo, en la
hipotesis
de
haberse
ordenado
mejoras.
"En cambio, ni por la desheredacion ni por la pretericion pierde su fuerza
el testamento, en cuanto a dicho tercio libre, si se trata de
descendientes; o la mitad, si se trata de ascendientes, ya desheredados,
ya preteridos, porque, ni por el uno ni por el otro medio, se anula mas
que la institucion de heredero, en general, y totalmente por la pretericion,
y solo en cuanto perjudique a la legitima del desheredado por la
desheredacion; pero subsistiendo, en ambos casos, todas aquellas otras
disposiciones que no se refieren a la institucion de heredero y se hallen
dentro del limite cuantitativo del tercio o mitad de libre disposicion, segun
que se trate de descendientes o ascendientes, preteridos o
desheredados.
"La invocacion del articulo 817 para modificar estos efectos de la
pretericion, procurando limitar la anulacion de la institucion de heredero
solo en cuanto perjudique a la legitima, fundandose en que dicho articulo
establece que las disposiciones testamentarias que menguan la legitima
de los herederos forzosos se reduciran, a peticion de estos, en lo que
fueren inoficiosas o excesivas, no es aceptable ni puede variar aquellos
resultados, porque es un precepto de caracter general en toda otra clase
de disposiciones testamentarias que produzcan el efecto de menguar la
legitima, que no puede anteponerse, en su aplicacion, a las de indole
especial para sealar los efectos de la pretericion o de la desheredacion,
regulados privativa y respectivamente por los articulos 814 y 851.
"No obstante la pretericion, valdran las mandas y legados en cuanto no
sean inoficiosas. El texto es terminante y no necesita mayor explicacion,
despues de lo dicho, que su propia letra, a no ser para observar que
constituye una confirmacion indudable de los efectos de la pretericion,

en cuanto alcanzan solo, pero totalmente, a la anulacion de la institucion

de heredero, pero no a la de las mandas y mejoras en cuanto no sean
inoficiosas o perjudiquen a la legitima de los preteridos; calificativo de
tales, como sinonimo legal de excesivas, que en otros articulos, como el
817, establece la ley." (6 Sanchez Roman, Volumen 2.0 pags. 11401141.)
These comments should be read with care if we are to avoid
misunderstanding. Manresa, for instance, starts expounding the meaning
of the law with an illustration. He says that in case of preterition (article
814), the nullity of the institution of heirs is total, whereas in case of
disinheritance (article 851), the nullity is partial, that is, in so far as the
institution affects the legitime of the disinherited heirs. "Preteridos,
adquieren derecho a todo; desheredados, solo les corresponde un tercio
o dos tercios, segun el caso." He then proceeds to comment upon the
wisdom of the distinction made by law, giving two views thereon. He first
lays the view contrary to the distinction made by law, then the arguments
in support of the distinction, and lastly a possible defense against said
arguments. And after stating that the Spanish jurisprudence has not as
yet decided squarely the question, with an allusion to two resolutions of
the Spanish Administrative Direction, one in favor of article 814 and
another evasive, he concludes that the construction which may rightly be
given to article 814 is that in case of preterition, the institution of heirs is
null in toto whereas in case of disinheritance the nullity is limited to that
portion of the legitime of which the disinherited heirs have been illegally
deprived. He further makes it clear that in cases of preterition, the
property bequeathed by universal title to the instituted heirs should not
be merely reduced according to article 817, but instead, intestate
succession should be opened in connection therewith under article 814,
the reason being that article 814, "como especial en el caso que le
motiva, rige con preferencia al 817." Sanchez Roman is of the same
opinion when he said: "La invocacion del articulo 817 para modificar
estos efectos de la pretericion, procurando limitar la anulacion de la
institucion de heredero solo en cuanto perjudique a la legitima,
fundandose en que dicho articulo establece que las disposiciones
testamentarias que menguan la legitima de los herederos forzosos se
reduciran, a peticion de estos, en lo que fueren inoficiosas o excesivas,
7
no es aceptable ni puede variar aquellos resultados, porque
es un
precepto de caracter general en toda otra clase de disposiciones
testamentarias que produzcan el efecto de menguar la legitima, que no
puede anteponerse, en su aplicacion, a las de indole especial para
sealar los efectos de la pretericion o de la desheredacion, regulados
privativa y respectivamente por los articulos 814 y 851."

Of course, the annulment of the institution of heirs in cases of preterition

does not always carry with it the ineffectiveness of the whole will. Neither
Manresa nor Sanchez Roman nor this Court has ever said so. If, aside
from the institution of heirs, there are in the will provisions leaving to the
heirs so instituted or to other persons some specific properties in the
form of legacies or mejoras, such testamentary provisions shall be
effective and the legacies and mejoras shall be respected in so far as
they are not inofficious or excessive, according to article 814. In the
instant case, however, no legacies or mejoras are provided in the will, the
whole property of the deceased having been left by universal title to the
children of the second marriage. The effect, therefore, of annulling the
institution of heirs will be necessarily the opening of a total intestacy.
But the theory is advanced that the bequest made by universal title in
favor of the children by the second marriage should be treated as legado
and mejora and, accordingly, it must not be entirely annulled but merely
reduced. This theory, if adopted, will result in a complete abrogation of
articles 814 and 851 of the Civil Code. If every case of institution of heirs
may be made to fall into the concept of legacies and betterments
reducing the bequest accordingly, then the provisions of articles 814 and
851 regarding total or partial nullity of the institution, would be absolutely
meaningless and will never have any application at all. And the remaining
provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be
absorbed by article 817. Thus, instead of construing, we would be
destroying
integral
provisions
of
the
Civil
Code.
The destructive effect of the theory thus advanced is due mainly to a
failure to distinguish institution of heirs from legacies and betterments,
and a general from a special provision. With reference to article 814,
which is the only provision material to the disposition of this case, it must
be observed that the institution of heirs is therein dealt with as a thing
separate and distinct from legacies or betterment. And they are separate
and distinct not only because they are distinctly and separately treated in
said article but because they are in themselves different. Institution of
heirs is a bequest by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a particular or special
title. The first is also different from a betterment which should be made
expressly as such (article 828). The only instance of implied betterment
recognized by law is where legacies are made which cannot be included
in the free portion (article 828). But again an institution of heirs cannot be
taken
as
a
legacy.
It is clear, therefore, that article 814 refers to two different things which

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are the two different objects of its two different provisions. One of these
objects cannot be made to merge in the other without mutilating the
whole article with all its multifarious connections with a great number of
provisions spread throughout the Civil Code on the matter of succession.
It should be borne in mind, further, that although article 814 contains two
different provisions, its special purpose is to establish a specific rule
concerning a specific testamentary provision, namely, the institution of
heirs in a case of preterition. Its other provision regarding the validity of
legacies and betterments if not inofficious is a mere reiteration of the
general rule contained in other provisions (articles 815 and 817) and
signifies merely that it also applies in cases of preterition. As regards
testamentary dispositions in general, the general rule is that all
"testamentary dispositions which diminish the legitime of the forced heirs
shall be reduced on petition of the same in so far as they are inofficious
or excessive" (article 817). But this general rule does not apply to the
specific instance of a testamentary disposition containing an institution of
heirs in a case of preterition, which is made the main and specific subject
of article 814. In such instance, according to article 814, the testamentary
disposition containing the institution of heirs should be not only reduced
but annulled in its entirety and all the forced heirs, including the omitted
ones, are entitled to inherit in accordance with the law of intestate
succession. It is thus evident that, if, in construing article 814, the
institution of heirs therein dealt with is to be treated as legacies or
betterments, the special object of said article would be destroyed, its
specific purpose completely defeated, and in that wise the special rule
therein established would be rendered nugatory. And this is contrary to
the most elementary rule of statutory construction. In construing several
provisions of a particular statute, such construction shall be adopted as
will give effect to all, and when general and particular provisions are
inconsistent, the latter shall prevail over the former. (Act No. 190, secs.
287
and
288.)
The question herein propounded has been squarely decided by the
Supreme Court of Spain in a case wherein a bequest by universal title
was made with preterition of heirs and the theory was advanced that the
instituted heirs should be treated as legatarios. The Supreme Court of
Spain
said:
8

"El articulo 814, que preceptua en tales casos de pretericion la nulidad

de la institucion de heredero, no consiente interpretacion alguna
favorable a la persona instituida en el sentido antes expuesto, aun
cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el
hecho o el acto no se ha realizado, debiendo, por lo tanto, procederse
sobre tal base o supuesto, y consiguientemente, en un testamento
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donde falte la institucion, es obligado llamar a los herederos forzosos en

todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribuido todos sus bienes en legados, siendo
tanto mas obligada esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de quien testa si
esta voluntad no aparece en la forma y en las condiciones que la ley ha
exigido para que sea valido y eficaz, por lo que constituiria una
interpretacion arbitraria, dentro del derecho positivo, reputar como
legatario a un heredero cuya institucion fuese anulada con pretexto de
que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero que no
autoriza a una interpretacion contraria a sus terminos y a los principios
que informan la testamentificacion, pues no porque parezca mejor una
cosa en el terreno del Derecho constituyente, hay razon para convertir
este juicio en regla de interpretacion, desvirtuando y anulando por este
procedimiento lo que el legislador quiere establecer." (6 Sanchez
Roman,
Volumen
2.0
p.
1138.)
It is maintained that the word "heredero" under the Civil Code, is not
synonymous with the term "heir" under the Code of Civil Procedure, and
that the "heir" under the latter Code is no longer personally liable for the
debts of the deceased as was the "heredero" under the Civil Code,
should his acceptance be pure and simple, and from all these the
conclusion is drawn that the provisions of article 814 of the Civil Code
regarding the total nullity of the institution of heirs has become obsolete.
This conclusion is erroneous. It confuses form with substance. It must be
observed, in this connection, that in construing and applying a provision
of the Civil Code, such meaning of its words and phrases as has been
intended by the framers thereof shall be adopted. If thus construed it is
inconsistent with the provisions of the Code of Civil Procedure, then it
shall be deemed repealed; otherwise it is in force. Repeals by implication
are not favored by the courts and when there are two acts upon the
same subject, effect should be given to both if possible (Posadas v.
National City Bank, 296 U. S., 497). The word "heir" as used in article
814 of the Civil Code may not have the meaning that it has under the
Code of Civil Procedure, but this in no wise can prevent a bequest from
being made by universal title as is in substance the subject-matter of
article 814 of the Civil Code. Again, it may also be true that heirs under
the Code of Civil Procedure may receive the bequest only after payment
of debts left by the deceased and not before as under the Civil Code, but
this may have a bearing only upon the question as to when succession
becomes effective and can in no way destroy the fact that succession
may still be by universal or special title. Since a bequest may still be
made by universal title and with preterition of forced heirs, its nullity as

provided in article 814 still applies there being nothing inconsistent with it
in the Code of Civil Procedure. What is important and is the basis for its
nullity is the nature and effect of the bequest and not its possible name
nor the moment of its effectiveness under the Code of Civil Procedure.
Furthermore, there were in the Code of Civil Procedure sections Nos.
755
and
756
which
read.:
"SEC. 755. Share of child born after making will. When a child of a
testator is born after the making of a will, and no provision is therein
made for him, such child shall have the same share in the estate of the
testator as if he had died intestate; and the share of such child shall be
assigned to him as in cases of intestate estates, unless it is apparent
from the will that it was the intention of the testator that no provision
should
be
made
for
such
child."
"SEC. 756. Share of child or issue of child omitted from will. When a
testator omits to provide in his will for any of his children, or for issue of a
deceased child, and it appears that such omission was made by mistake,
or accident, such child, or the issue of such child, shall have the same
share in the estate of the testator as if he had died intestate, to be
assigned to him as in the case of intestate estates."

It is these provisions of the Code of Civil Procedure that have affected

substantially articles 814 and 851 of the Civil Code, but they have been
expressly repealed by Act No. 2141, section 1 of which reads as follows:
"Sections seven hundred and fifty-five, seven hundred and fifty- six,
seven hundred and fifty-seven, seven hundred and fifty-eight, and seven
hundred and sixty of Act Numbered One hundred and ninety, entitled An
Act providing a Code of Procedure in Civil Actions and Special
Proceedings in the Philippine Islands are hereby repealed and such
provisions of the Civil Code as may have been amended or repealed by
said sections are hereby restored to full force and effect." (Italics ours.)
9

Among the provisions of the Civil Code which are thus expressly restored
to full force are undoubtedly articles 814 and 851. There can be no
possible doubt, therefore, that those two articles are in force.
Article 1080 of the Civil Code that is also invoked deserves no
consideration except for the observation that it has no relevancy in the
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instant

case.

Our attention is directed to the case of Escuin v. Escuin (11 Phil., 332).
We have never lost sight of the ruling laid down in that case which has
been reiterated in Eleazar v. Eleazar (37 Off. Gaz., p. 1782). In the
Escuin case, the deceased left all his property to his natural father (not a
forced heir) and his wife with total preterition of an acknowledged natural
child; and, in the Eleazar case the deceased left all his property to a
friend with total preterition of his father and wife. Without reconsidering
the correctness of the ruling laid down in these two cases, we will note
that the doctrine stands on facts which are different from the facts in the
present case. There is certainly a difference between a case of
preterition in which the whole property is left to a mere friend and a case
of preterition in which the whole property is left to one or some forced
heirs. If the testamentary disposition be annulled totally in the first case,
the effect would be a total deprivation of the friend of his share in the
inheritance. And this is contrary to the manifest intention of the testator. It
may fairly be presumed that, under such circumstances, the testator
would at least give his friend the portion of free disposal. In the second
case, the total nullity of the testamentary disposition would have the
effect, not of depriving totally the instituted heir of his share in the
inheritance, but of placing him and the other forced heirs upon the basis
of equality. This is also in consonance with the presumptive intention of
the testator. Preterition, generally speaking, is due merely to mistake or
inadvertence without which the testator may be presumed to treat alike
all
his
children.
And specially is this true in the instant case where the testator omitted
the children by his first marriage upon the erroneous belief that he had
given them already more shares in his property than those given to the
children by his second marriage. It was, therefore, the thought of the
testator that the children by his first marriage should not receive less than
the children by his second marriage, and to that effect is the decision of
this Court sought to be reconsidered. Motion for reconsideration is
hereby
denied.
Yulo, C.J.,
Generoso, J.,

concur

in

the

result.
concurs.

NERI
GR
No.L-47799,
74 PHIL 185

v.
May

21,

AKUTIN
1943

FACTS: This is a case where the testator Agripino Neri in his will left all
his property by universal title to the children by his second marriage, the
herein respondents, with omission of the children by his first marriage,
the herein petitioner. The omission of the heirs in the will was
contemplated by the testator with the belief that he had already given
each of the children portion of the inheritance, particularly a land he had
abandoned was occupied by the respondents over which registration
was denied for it turned out to be a public land, and an aggregate
amount of money which the respondents were indebted to their father.

ISSUE: Should there be cancellation of the will, in view of the omission of

heirs? Is there disinheritance in this case?

HELD: Yes. The Court annulled the institution of heirs and declared a
total intestacy on the ground that testator left all his property by universal
title to the children by his second marriage, without expressly
10
disinheriting the children by his first marriage but upon the erroneous
belief that he had given them already more shares in his property than
those given to the children by his second marriage. Disinheritance made
without a statement of the cause, if contested, shall annul the institution
of heirs in so far as it is prejudicial to the disinherited person. This is but
a case of preterition which annuls the institution of heirs.
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the sheriff pursuant to the writ of execution issued in said judgment,

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

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-31703

February 13, 1930

CARMEN G. DE PEREZ, trustee of the estate of Ana Maria

Alcantara, plaintiff-appellee,
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the
Court of First Instance of Manila,defendants-appellants.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's name with the
11
association known as La Urbana in Manila, as the final payment
of the
liquidated credit of Ana Maria Alcantara, deceased, whose heiress is said
plaintiff, against Andres Garchitorena, also deceased, represented by his
son, the defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for P7,872.23 against
Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez,
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The court below held that said La Urbana deposit belongs to the
plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and
granted a final writ of injunction.
The defendants insist in their contentions, and, in their appeal from the
decision of the trial court, assign the following errors:
1. The lower court erred in holding that a trust was created by
the will of Doa Ana Maria Alcantara.
2. The lower court erred in concluding and declaring that the
amount of P21,428.58 deposited with La Urbana is the property
of the children of the plaintiff as "herederos fidei-comisarios."
3. The lower court erred in making the injunction permanent and
condemning defendant to pay the costs.
The question here raised is confined to the scope and meaning of the
institution of heirs made in the will of the late Ana Maria Alcantara already
admitted to probate, and whose legal force and effect is not in dispute.
The clauses of said will relevant to the points in dispute, between the
parties are the ninth, tenth, and eleventh, quoted below:
Ninth. Being single and without any forced heir, to show my
gratitude to my niece-in-law, Carmen Garchitorena, of age,
married to my nephew, Joaquin Perez Alcantara, and living in
this same house with me, I institute her as my sole and universal
heiress to the remainder of my estate after the payment of my

debts and legacies, so that upon my death and after probate of

this will, and after the report of the committee on claims and
appraisal has been rendered and approved, she will receive from
my executrix and properties composing my hereditary estate,
that she may enjoy them with God's blessing and my own.
Tenth. Should my heiress Carmen Garchitorena die, I order that
my whole estate shall pass unimpaired to her surviving children;
and should any of these die, his share shall serve to increase the
portions of his surviving brothers (and sisters) by accretion, in
such wise that my estate shall never pass out of the hands of my
heiress or her children in so far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen Garchitorena,
die after me while her children are still in their minority, I order
that my estate be administered by my executrix, Mrs. Josefa
Laplana, and in her default, by Attorney Ramon Salinas and in
his default, by his son Ramon Salinas; but the direction herein
given must not be considered as an indication of lack of
confidence in my nephew Joaquin Perez Alcantara, whom I
relieve from the duties of administering my estate, because I
recognize that his character is not adapted to management and
administration.
The appellants contend that in these clauses the testatrix has ordered a
simple substitution, while the appellee contends that it is a
fideicommissary substitution.
This will certainly provides for a substitution of heirs, and of the three
cases that might give rise to a simple substitution (art. 774, Civil Code),
only the death of the instituted heiress before the testatrix would in the
instant case give place to such substitution, inasmuch as nothing is said
12
of the waiver of inheritance, or incapacity to accept it. As a matter of fact,
however, clause XI provides for the administration of the estate in case
the heiress instituted should die after the testatrix and while the
substitute heirs are still under age. And it is evident that, considering the
nature of simple substitution by the heir's death before the testator, and
the fact that by clause XI in connection with clause X, the substitution is

ordered where the heiress instituted dies after the testatrix, this cannot
be a case of simple substitution.
The existence of a substitution in the will is not and cannot be denied,
and since it cannot be a simple substitution in the light of the
considerations above stated, let us now see whether the instants case is
a fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and
universal heiress, and provides that upon her death (the testatrix's) and
after probate of the will and approval of the report of the committee on
claims and appraisal, said heiress shall receive and enjoy the whole
hereditary estate. Although this clause provides nothing explicit about
substitution, it does not contain anything in conflict with the idea of
fideicommissary substitution. The fact that the plaintiff was instituted the
sole and universal heiress does not prevent her children from receiving,
upon her death and in conformity with the express desire of the testatrix,
the latter's hereditary estate, as provided in the following (above quoted)
clauses which cannot be disregarded if we are to give a correct
interpretation of the will. The word sole does not necessarily exclude the
idea of substitute heirs; and taking these three clauses together, such
word means that the plaintiff is the sole heiress instituted in the first
instance.
The disposition contained in clause IX, that said heiress shall receive and
enjoy the estate, is not incompatible with a fideicommissary substitution
(it certainly is incompatible with the idea of simple substitution, where the
heiress instituted does not receive the inheritance). In fact the enjoyment
of the inheritance is in conformity with the idea of fideicommissary
substitution, by virtue of which the heir instituted receives the inheritance
and enjoys it, although at the same time he preserves it in order to pass
it on the second heir. On this point the illustrious Manresa, in his Civil
Code (Vol. 6, pp. 142 and 143, 5th ed.), says:
Or, what amounts to the same thing, the fideicommissary
substitution, as held in the Resolution of June 25, 1895,
February 10, 1899, and July 19, 1909, requires three things:
1. A first heir called primarily to the enjoyment of the estate.

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2. An obligation clearly imposed upon him to preserve and

transmit to a third person the whole or a part of the estate.

the fideicommissary heirs. This provision complies with another of the

requisites of fideicommissary substitution according to our quotation from
Manresa inserted above.

3. A second heir.
To these requisites, the decision of November 18, 1918 adds
another, namely that the fideicommissarius be entitled to the
estate from the time the testator dies, since he is to inherit from
the latter and not from the fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted or the fiduciary, as
referred to in articles 783 of the Civil Code, is entitled to enjoy the
inheritance. And it might here be observed, as a timely remark, that the
fideicommissum arising from a fideicommissary substitution, which is of
Roman origin, is not exactly equivalent to, nor may it be confused with,
the English "trust."
It should also be noted that said clause IX vests in the heiress only the
right to enjoy but not the right to dispose of the estate. It says, she may
enjoy it, but does not say she may dispose of it. This is an indication of
the usufruct inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is true that it does not
say whether the death of the heiress herein referred to is before or after
that of the testatrix; but from the whole context it appears that in making
the provisions contained in this clause X, the testatrix had in mind a
fideicommissary substitution, since she limits the transmission of her
estate to the children of the heiress by this provision, "in such wise that
my estate shall never pass out of the hands of my heiress or her children
in so far as it is legally possible." Here it clearly appears that the testatrix
tried to avoid the possibility that the substitution might later be legally
declared null for transcending the limits fixed by article 781 of the Civil
13
Code which prescribed that fideicommissary substitutions shall be valid
"provided they do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary substitution
in clause X is the provision that the wholeestate shall pass unimpaired to
the heiress's children, that is to say the heiress is required to preserve
the whole estate, without diminution, in order to pass it on in due time to
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Lastly, clause XI more clearly indicates the idea of fideicommissary

substitution, when a provision is therein made in the event the heiress
should die after the testatrix. That is, said clause anticipates the case
where the instituted heiress should die after the testatrix and after
receiving and enjoying the inheritance.
The foregoing leads us to the conclusion that all the requisites of a
fideicommissary substitution, according to the quotation from Manresa
above inserted, are present in the case of substitution now under
consideration, to wit:
1. At first heir primarily called to the enjoyment of the estate. In
this case the plaintiff was instituted an heiress, called to the
enjoyment of the estate, according to clause IX of the will.
2. An obligation clearly imposed upon the heir to preserve and
transmit to a third person the whole or a part of the estate. Such
an obligation is imposed in clause X which provides that the
"whole estate shall pass unimpaired to her (heiress's) surviving
children;" thus, instead of leaving the heiress at liberty to dispose
of the estate by will, or of leaving the law to take its course in
case she dies intestate, said clause not only disposes of the
estate in favor of the heiress instituted, but also provides for the
disposition thereof in case she should die after the testatrix.
3. A second heir. Such are the children of the heiress instituted,
who are referred to as such second heirs both in clause X and in
clause XI.
Finally, the requisite added by the decision of November 18, 1918, to wit,
that the fideicommissarius or second heir should be entitled to the estate
from the time of the testator's death, which in the instant case, is, rather
than a requisite, a necessary consequence derived from the nature of the
fideicommissary substitution, in which the second heir does not inherit
from the heir first instituted, but from the testator.

By virtue of this consequence, the inheritance in question does not

belong to the heiress instituted, the plaintiff herein, as her absolute
property, but to her children, from the moment of the death of the
testatrix, Ana Maria Alcantara.
Therefore, said inheritance, of which the amount referred to at the
beginning, which is on deposit with the association known as La
Urbana in the plaintiff's name, is a part, does not belong to her nor can it
be subject to the execution of the judgment against Joaquin Perez, who
is not one of the fideicommissary heirs.
The judgment appealed from is affirmed, with costs against the appellant,
Mariano Garchitorena. So ordered.
Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Street, J., reserves his vote.

FACTS:
P21,428.58 is on deposit in the plaintiff's name, with the La Urbana in
Manila, as the final payment of the liquidated credit of Ana Maria
Alcantara, deceased, whose heiress is said plaintiff, against Andres
Garchitorena, also deceased, represented by his son, the defendant
Mariano Garchitorena.The latter held a judgement for P7,872.23 for due
execution against the husband of Ana Maria,Joaquin Perez Alcantara
hence the deposited amount in La Urbana was attached. The plaintiff,
alleging that said deposit belongs to the fideicommissary heirs of the
decedent Ana Maria Alcantara, secured a preliminary14injunction
restraining the execution of said judgment on the sum so attached. The
defendants contend that the plaintiff is the decedent's universal heiress,
and pray for the dissolution of the injunction. The court held that said La
Urbana deposit belongs to the plaintiff's children as fideicommissary
heirs ofAna Maria Alcantara, and granted a final writ of injunction.
ISSUE:
SUCCESSION

Whether or not the testatrix has ordered a simple substitution, or a

fideicommissary substitution.
RULING: There is a fideicommissary substitution.All the elements of this
kind of substitution are present:
1. At first heir primarily called to the enjoyment of the estate. In this case
the plaintiff was instituted an heiress, called to the enjoyment of the
estate, according to clause IX of the will.
2. An obligation clearly imposed upon the heir to preserve and transmit to
a third person the whole or a part of the estate. Such an obligation is
imposed in clause X which provides that the "whole estate shall pass
unimpaired to her (heiress's) surviving children; "thus, instead of leaving
the heiress at liberty to dispose of the estate by will, or of leaving the law
to take its course in case she dies intestate, said clause not only
disposes of the estate in favor of the heiress instituted, but also provides
for the disposition thereof in case she should die after the testatrix.
3. A second heir. Such are the children of the heiress instituted, who are
referred to as such second heirs both in clause X and in clause XI. As a
consequence, the inheritance in question does not belong to the heiress
instituted, the plaintiff herein, as her absolute property, but to her
children, from the moment of the death of the testatrix, Ana Maria
Alcantara. Therefore, said inheritance, of which the amount referred to at
the beginning, which is on deposit with the association known as La
Urbana in the plaintiff's name, is a part, does not belong to her nor can it
be subject to the execution of the judgment against Joaquin Perez, who
is not one of the fideicommissary heirs.The judgment appealed from is
affirmed, with costs against the appellant, Mariano Garchitorena.

DIZON, J.:
Action for partition commenced by the spouses Consolacion Florentino
and Francisco Crisologo against Manuel Singson in connection with a
residential lot located at 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 Doa 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.

EN BANC
[G.R. No. L-13876. February 28, 1962.]
CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., PlaintiffsAppellees, v. DR. MANUEL SINGSON, Defendant-Appellant.
Felix V. Vergara, for Defendant-Appellant.
B. Martinez for Plaintiffs-Appellees.
SYLLABUS
1. WILLS AND TESTAMENTS; DESIGNATION OF HEIRS; PURPOSE
OF FIDEICOMMISSARY SUBSTITUTION. It is of the essence
of a
15
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.
DECISION
SUCCESSION

Defendants 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
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;
"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 Doa 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, and her nieces Rosario, Emilia
and Trinidad, and her grandniece Consolacion, all surnamed Florentino.
Clause IX of her last will reads as follows:jgc:chanrobles.com.ph
"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 materiales 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 apellido 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 ellos muriere
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 preceding paragraph,
unless the testator has otherwise provided."
"ART. 785. Fidei-commissary substitutions by virtue of which the heir is
16
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
SUCCESSION

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 testatrixs 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 sustitusion 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
sustitusion 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 that 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 ordene o encargue al primer heredero, cuando sea tal, que
conserve y transmita a una tercera persona o entidad el todo o 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 aade 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, exige 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 appellees death whether this happens before or
17
after that of the testatrix her share shall belong to the brothers
of the
testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of
the deceased Da. Leona Singson established a mere sustitucin vulgar,
the substitution of 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.
SUCCESSION

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.

Dionisio, or their forced heirs, should anyone of them die ahead of

Consolacion Florentino.

CRISOLOGO v SINGSON
NATURE Action for partition by Sps Crisologo against Singson
FACTSThis involves a lot and improvements thereon. Complaint alleged that
Singson ownedhalf pro-indiviso of said prop and that Florentino owned
the other half by virtue of theduly probated last will of Singson (the orig
owner).- Defendant's defense was that Consolacion Florentino was a
mere usufructuary of andnot owner of one-half pro-indiviso of the
property in question, and that therefore, shewas not entitled to demand
partition thereof.- Lower court rendered judgment in favor of plaintiff.
Singson appealed.- At the time of the execution of the will, the nearest
living relatives of the original owner were her brothers Evaristo, Manuel
and Dionisio Singson, her nieces Rosario, Emiliaand Trinidad, and her
grandniece Consolation, all surnamed Florentino.
ISSUE:
Whether the testamentary disposition provided for sustitucion vulgar or
for sustitucion fideicomisaria? SUSTITUCION VULGAR
RATIO:
The old Civil Code governs this case. Testator may not only designate
heirs wholl succeed him, but also substitutes in the event that said heirs
dont accept or are in no position to accept inheritance or legacies, or die
ahead of him.- Testator may also bequeath his properties to
18 particular
person w/ obligation, on part of latter, to deliver the same to another,
totally or partially, upon occurrence of particular event.
- The particular testamentary clause provides for substitution of heir in
this manner: upon death of Consolacion Florentino, whether before or
after that of testatrix, property bequeathed to her shall be delivered or
shall belong in equal parts to testatrix's three brothers, Evaristo, Manuel,
SUCCESSION

- If this created sustitucion vulgar, necessary result would be that

Consolacion Florentino, upon death of testatrix, became owner of one
undivided half of the property, but if it provided for sustitution
fideicomisaria, she would have acquired nothing more than usufructuary
rights over same half. In the former, she would be entitled to partition,but
not in the latter. As Manresa says, if fiduciary did not acquire full
ownership of property bequeathed by will, but mere usufructuary rights
until time came for him to deliver said property to the fideicomisario, its
obvious that nude ownership over property, upon death of testatrix,
passed to and was acquired by another person, and the person cannot
be other than the fideicomisario.
- It seems to be of the essence of a fideicommissary substitution that an
obligation be clearly imposed upon first heir to preserve & transmit to
another the whole or part of estate bequeathed to him, upon his death or
upon happening of particular event. For this reason, Art 785 of old Civil
Code provides that fideicommissary substitution has no effect unless
made expressly either by giving it such name, or by imposing upon firs
their the absolute obligation to deliver the inheritance to a substitute or
second heir.The substitution of heirs provided for therein is not expressly made of
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 before or after that of testatrix, her share
shall belong to the brothers of the testatrix.

I give, leave and bequeath the following property owned by me to Dr.

Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 113725

June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,

vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y
BELLEZA VILLACARLOS, respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of Appeals, 3 dated
December 23, 1993, in CA-G.R. No. CV-35555, which set aside the
decision of Branch 52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein petitioner), as heirs
of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with
its fruits and interests, to the estate of Aleja Belleza.

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer

Certificate of Title No. RT-4002 (10942), which is registered in
my name according to the records of the Register of Deeds of
Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the
aforementioned property and the rights which I shall set forth
hereinbelow, shall be inherited and acknowledged by the
children and spouse of Jorge Rabadilla.
xxx
FOURTH
(a)....It is also my command, in this my addition (Codicil), that should I die
and Jorge Rabadilla shall have already received the ownership of the
said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer
Certificate of Title No. RT-4002 (10942), and also at the time that the
lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla
shall have the obligation until he dies, every year to give to Maria Marlina
Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and
Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina
Coscolluela y Belleza dies.

The antecedent facts are as follows:

FIFTH
In a Codicil appended to the Last Will and Testament of testatrix Aleja
Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855
square meters of that parcel of land surveyed as Lot No. 1392 of the
19
Bacolod Cadastre. The said Codicil, which was duly probated and
admitted in Special Proceedings No. 4046 before the then Court of First
Instance of Negros Occidental, contained the following provisions:

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No.
1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title
No. RT-4002 (10492), shall have the obligation to still give yearly, the
sugar as specified in the Fourth paragraph of his testament, to Maria
Marlina Coscolluela y Belleza on the month of December of each year.
SIXTH

"FIRST

SUCCESSION

I command, in this my addition (Codicil) that the Lot No. 1392, in the
event that the one to whom I have left and bequeathed, and his heir shall
later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee,
shall have also the obligation to respect and deliver yearly ONE
HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza,
on each month of December, SEVENTY FIVE (75) piculs of Export and
TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die,
lastly should the buyer, lessee or the mortgagee of this lot, not have
respected my command in this my addition (Codicil), Maria Marlina
Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my
heir and the latter's heirs, and shall turn it over to my near desendants,
(sic) and the latter shall then have the obligation to give the ONE
HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further
command in this my addition (Codicil) that my heir and his heirs of this
Lot No. 1392, that they will obey and follow that should they decide to
sell, lease, mortgage, they cannot negotiate with others than my near
descendants and my sister."4
Pursuant to the same Codicil, Lot No. 1392 was transferred to the
deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No.
44498 thereto issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and
children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed
Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos
brought a complaint, docketed as Civil Case No. 5588, before Branch 52
of the Regional Trial Court in Bacolod City, against the above-mentioned
heirs of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil.
The Complaint alleged that the defendant-heirs violated the conditions of
the Codicil, in that:
20

1. Lot No. 1392 was mortgaged to the Philippine National Bank

and the Republic Planters Bank in disregard of the testatrix's
specific instruction to sell, lease, or mortgage only to the near
descendants and sister of the testatrix.

SUCCESSION

2. Defendant-heirs failed to comply with their obligation to deliver

one hundred (100) piculs of sugar (75 piculs export sugar and 25
piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y
Belleza from sugar crop years 1985 up to the filing of the
complaint as mandated by the Codicil, despite repeated
demands for compliance.
3. The banks failed to comply with the 6th paragraph of the
Codicil which provided that in case of the sale, lease, or
mortgage of the property, the buyer, lessee, or mortgagee shall
likewise have the obligation to deliver 100 piculs of sugar per
crop year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering defendantheirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late
Aleja Belleza, the cancellation of TCT No. 44498 in the name of the
deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of
title in the names of the surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but
on March 28, 1990 the Order of Default was lifted, with respect to
defendant Johnny S. Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain
Alan Azurin, son-in-law of the herein petitioner who was lessee of the
property and acting as attorney-in-fact of defendant-heirs, arrived at an
amicable settlement and entered into a Memorandum of Agreement on
the obligation to deliver one hundred piculs of sugar, to the following
effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of
TCT No. 44489 will be delivered not later than January of 1989, more
specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of
our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during
December of each sugar crop year, in Azucar Sugar Central; and, this is

considered compliance of the annuity as mentioned, and in the same

manner will compliance of the annuity be in the next succeeding crop
years.
That the annuity above stated for crop year 1985-86, 1986-87, and 198788, will be complied in cash equivalent of the number of piculs as
mentioned therein and which is as herein agreed upon, taking into
consideration the composite price of sugar during each sugar crop year,
which is in the total amount of ONE HUNDRED FIVE THOUSAND
PESOS (P105,000.00).
That the above-mentioned amount will be paid or delivered on a
staggered cash installment, payable on or before the end of December of
every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 198889;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 198990;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 199091; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY
(P26,250.00) Pesos, payable on or before December of crop year 199192."5
However, there was no compliance with the aforesaid Memorandum of
21
Agreement except for a partial delivery of 50.80 piculs of sugar
corresponding to sugar crop year 1988 -1989.
On July 22, 1991, the Regional Trial Court came out with a decision,
dismissing the complaint and disposing as follows:

SUCCESSION

"WHEREFORE, in the light of the aforegoing findings, the Court finds

that the action is prematurely filed as no cause of action against the
defendants has as yet arose in favor of plaintiff. While there maybe the
non-performance of the command as mandated exaction from them
simply because they are the children of Jorge Rabadilla, the title
holder/owner of the lot in question, does not warrant the filing of the
present complaint. The remedy at bar must fall. Incidentally, being in the
category as creditor of the left estate, it is opined that plaintiff may initiate
the intestate proceedings, if only to establish the heirs of Jorge Rabadilla
and in order to give full meaning and semblance to her claim under the
Codicil.
In the light of the aforegoing findings, the Complaint being prematurely
filed is DISMISSED without prejudice.
SO ORDERED."6
On appeal by plaintiff, the First Division of the Court of Appeals reversed
the decision of the trial court; ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiffappellant's right to receive 100 piculs of sugar annually out of the
produce of Lot No. 1392; defendants-appellee's obligation under Aleja
Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver
such amount of sugar to plaintiff-appellant; defendants-appellee's
admitted non-compliance with said obligation since 1985; and, the
punitive consequences enjoined by both the codicil and the Civil Code, of
seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in
case of such non-compliance, this Court deems it proper to order the
reconveyance of title over Lot No. 1392 from the estates of Jorge
Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must
institute separate proceedings to re-open Aleja Belleza's estate, secure
the appointment of an administrator, and distribute Lot No. 1392 to Aleja
Belleza's legal heirs in order to enforce her right, reserved to her by the
codicil, to receive her legacy of 100 piculs of sugar per year out of the
produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to

reconvey title over Lot No. 1392, together with its fruits and interests, to
the estate of Aleja Belleza.
SO ORDERED."7
Dissatisfied with the aforesaid disposition by the Court of Appeals,
petitioner found his way to this Court via the present petition, contending
that the Court of Appeals erred in ordering the reversion of Lot 1392 to
the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the
Codicil, and in ruling that the testamentary institution of Dr. Jorge
Rabadilla is a modal institution within the purview of Article 882 of the
New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the
appeal in accordance with Article 882 of the New Civil Code on modal
institutions and in deviating from the sole issue raised which is the
absence or prematurity of the cause of action. Petitioner maintains that
Article 882 does not find application as there was no modal institution
and the testatrix intended a mere simple substitution - i.e. the instituted
heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near
descendants" should the obligation to deliver the fruits to herein private
respondent be not complied with. And since the testatrix died single and
without issue, there can be no valid substitution and such testamentary
provision cannot be given any effect.
The petitioner theorizes further that there can be no valid substitution for
the reason that the substituted heirs are not definite, as the substituted
heirs are merely referred to as "near descendants" without a definite
identity or reference as to who are the "near descendants" and therefore,
under Articles 8438 and 8459 of the New Civil Code, the substitution
22
should be deemed as not written.
The contentions of petitioner are untenable. Contrary to his supposition
that the Court of Appeals deviated from the issue posed before it, which
was the propriety of the dismissal of the complaint on the ground of
prematurity of cause of action, there was no such deviation. The Court of
Appeals found that the private respondent had a cause of action against
SUCCESSION

the petitioner. The disquisition made on modal institution was, precisely,

to stress that the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil; on which issue the
Court of Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional rights
are transmitted from the moment of death of the decedent 10 and
compulsory heirs are called to succeed by operation of law. The
legitimate children and descendants, in relation to their legitimate
parents, and the widow or widower, are compulsory heirs. 11 Thus, the
petitioner, his mother and sisters, as compulsory heirs of the instituted
heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law,
without need of further proceedings, and the successional rights were
transmitted to them from the moment of death of the decedent, Dr. Jorge
Rabadilla.
Under Article 776 of the New Civil Code, inheritance includes all the
property, rights and obligations of a person, not extinguished by his
death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of
subject Codicil were transmitted to his forced heirs, at the time of his
death. And since obligations not extinguished by death also form part of
the estate of the decedent; corollarily, the obligations imposed by the
Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to
his compulsory heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr.
Jorge Rabadilla, subject to the condition that the usufruct thereof would
be delivered to the herein private respondent every year. Upon the death
of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and
title over the said property, and they also assumed his (decedent's)
obligation to deliver the fruits of the lot involved to herein private
respondent. Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the usufruct, the
fulfillment or performance of which is now being demanded by the latter
through the institution of the case at bar. Therefore, private respondent
has a cause of action against petitioner and the trial court erred in
dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal
institutions is not applicable because what the testatrix intended was a
substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's
near descendants should there be noncompliance with the obligation to
deliver the piculs of sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to
take the place of the heir or heirs first instituted. Under substitutions in
general, the testator may either (1) provide for the designation of another
heir to whom the property shall pass in case the original heir should die
before him/her, renounce the inheritance or be incapacitated to inherit, as
in a simple substitution,12 or (2) leave his/her property to one person with
the express charge that it be transmitted subsequently to another or
others, as in a fideicommissary substitution. 13 The Codicil sued upon
contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default of
the first heir by reason of incapacity, predecease or renunciation. 14 In the
case under consideration, the provisions of subject Codicil do not provide
that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix's near descendants would substitute him. What
the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not
fulfill the conditions imposed in the Codicil, the property referred to shall
be seized and turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point,
petitioner is correct. In a fideicommissary substitution, the first heir is
strictly mandated to preserve the property and to transmit the same
later to the second heir.15 In the case under consideration, the instituted
heir is in fact allowed under the Codicil to alienate the property provided
23
the negotiation is with the near descendants or the sister of the testatrix.
Thus, a very important element of a fideicommissary substitution is
lacking; the obligation clearly imposing upon the first heir the
preservation of the property and its transmission to the second heir.
"Without this obligation to preserve clearly imposed by the testator in his
will, there is no fideicommissary substitution." 16 Also, the near
descendants' right to inherit from the testatrix is not definite. The property
SUCCESSION

will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the
obligation to deliver part of the usufruct to private respondent.
Another important element of a fideicommissary substitution is also
missing here. Under Article 863, the second heir or the fideicommissary
to whom the property is transmitted must not be beyond one degree from
the first heir or the fiduciary. A fideicommissary substitution is therefore,
void if the first heir is not related by first degree to the second heir.17 In
the case under scrutiny, the near descendants are not at all related to the
instituted heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and
therefore, Article 882 of the New Civil Code is the provision of law in
point. Articles 882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution or the application
of the property left by the testator, or the charge imposed on him, shall
not be considered as a condition unless it appears that such was his
intention.
That which has been left in this manner may be claimed at once provided
that the instituted heir or his heirs give security for compliance with the
wishes of the testator and for the return of anything he or they may
receive, together with its fruits and interests, if he or they should
disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to in the
preceding article cannot take effect in the exact manner stated by the
testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is
known in the law of succession as aninstitucion sub modo or a modal
institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the
testator, or (3) the charge imposed by the testator upon the heir.18 A
"mode" imposes an obligation upon the heir or legatee but it does not
affect the efficacy of his rights to the succession. 19 On the other hand, in

a conditional testamentary disposition, the condition must happen or be

fulfilled in order for the heir to be entitled to succeed the testator. The
condition suspends but does not obligate; and the mode obligates but
does not suspend.20 To some extent, it is similar to a resolutory
condition.21
From the provisions of the Codicil litigated upon, it can be gleaned
unerringly that the testatrix intended that subject property be inherited by
Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix
imposed an obligation on the said instituted heir and his successors-ininterest to deliver one hundred piculs of sugar to the herein private
respondent, Marlena Coscolluela Belleza, during the lifetime of the latter.
However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and
the effectivity of his institution as a devisee, dependent on the
performance of the said obligation. It is clear, though, that should the
obligation be not complied with, the property shall be turned over to the
testatrix's near descendants. The manner of institution of Dr. Jorge
Rabadilla under subject Codicil is evidently modal in nature because it
imposes a charge upon the instituted heir without, however, affecting the
efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality,
an obligation imposed upon the heir should not be considered a condition
unless it clearly appears from the Will itself that such was the intention of
the testator. In case of doubt, the institution should be considered as
modal and not conditional.22
Neither is there tenability in the other contention of petitioner that the
private respondent has only a right of usufruct but not the right to seize
the property itself from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or mortgagee.
24

In the interpretation of Wills, when an uncertainty arises on the face of

the Will, as to the application of any of its provisions, the testator's
intention is to be ascertained from the words of the Will, taking into
consideration the circumstances under which it was made. 23 Such
construction as will sustain and uphold the Will in all its parts must be
adopted.24
SUCCESSION

Subject Codicil provides that the instituted heir is under obligation to

deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza
Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge
Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they
sell, lease, mortgage or otherwise negotiate the property involved. The
Codicil further provides that in the event that the obligation to deliver the
sugar is not respected, Marlena Belleza Coscuella shall seize the
property and turn it over to the testatrix's near descendants. The nonperformance of the said obligation is thus with the sanction of seizure of
the property and reversion thereof to the testatrix's near descendants.
Since the said obligation is clearly imposed by the testatrix, not only on
the instituted heir but also on his successors-in-interest, the sanction
imposed by the testatrix in case of non-fulfillment of said obligation
should equally apply to the instituted heir and his successors-in-interest.
Similarly unsustainable is petitioner's submission that by virtue of the
amicable settlement, the said obligation imposed by the Codicil has been
assumed by the lessee, and whatever obligation petitioner had become
the obligation of the lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his obligation through the
consummated settlement between the lessee and the private
respondent, and having consummated a settlement with the petitioner,
the recourse of the private respondent is the fulfillment of the obligation
under the amicable settlement and not the seizure of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act
by which a person disposes of his property, to take effect after his
death.25 Since the Will expresses the manner in which a person intends
how his properties be disposed, the wishes and desires of the testator
must be strictly followed. Thus, a Will cannot be the subject of a
compromise agreement which would thereby defeat the very purpose of
making a Will.
WHEREFORE, the petition is hereby DISMISSED and the decision of the
Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555
AFFIRMED. No pronouncement as to costs
SO ORDERED.

334 SCRA 522 Civil Law Succession Transmissible Obligations

A certain Aleja Belleza died but he instituted in his will Dr. Jorge
Rabadilla as a devisee to a 511, 855 hectare land. A condition was
however imposed to the effect that:
1. the naked ownership shall transfer to Dr. Rabadilla;
2. he shall deliver the fruits of said land to Maria Belleza, sister of Aleja,
during the lifetime of said Maria Belleza;
3. that in case Dr. Rabadilla shall die before Maria Belleza, the near
descendants, shall continue delivering the fruits to Maria Belleza;

ownership over the same property was transmitted to Johnny Rabadilla

by virtue of succession.
Under Article 776 of the Civil Code, inheritance includes all the property,
rights and obligations of a person, not extinguished by his death.
Conformably, whatever rights Dr. Rabadilla had by virtue of the Will were
transmitted to his forced heirs, at the time of his death. And since
obligations not extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the Will on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his
compulsory heirs upon his death. It is clear therefore, that Johnny should
have continued complying with the terms of the Will. His failure to do so
shall give rise to an obligation for him to reconvey the property to the
estate of Aleja.

4. that the said land may only be encumbered, mortgaged, or sold only to
a relative of Belleza.
In 1983, Dr. Rabadilla died. He was survived by Johnny Rabadilla.
In 1989, Maria Belleza sued Johnny Rabadilla in order to compel Johnny
to reconvey the said land to the estate of Aleja Belleza because it is
alleged that Johnny failed to comply with the terms of the will; that since
1985, Johnny failed to deliver the fruits; and that the the land was
mortgaged to the Philippine National Bank, which is a violation of the will.
In his defense, Johnny avers that the term near descendants in the will
of Aleja pertains to the near descendants of Aleja and not to the near
descendants of Dr. Rabadilla, hence, since Aleja had no near
descendants at the time of his death, no can substitute Dr. Rabadilla on
the obligation to deliver the fruits of the devised land.
ISSUE: Whether or not Johnny Rabadilla is not obliged to 25
comply with
the terms of the Will left by Aleja Belleza.
HELD: No. The contention of Johnny Rabadilla is bereft of merit. The
near descendants being referred to in the will are the heirs of Dr.
Rabadilla. Ownership over the devised property was already transferred
to Dr. Rabadilla when Aleja died. Hence, when Dr. Rabadilla himself died,
SUCCESSION

RABADILLA vs. CA June 29, 2000

FACTS:

FIRST DIVISION

In a Codicil appended to the Last Will and Testament of testatrix Aleja

Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as a devisee of parcel of
land. The Codicil provides that Jorge Rabadilla shall have the obligation
until he dies, every year to give Maria Marlina Coscolluela y Belleza, (75)
(sic) piculs of Export sugar and (25) piculs of Domestic sugar, until the
said Maria Marlina Coscolluela y Belleza dies.
Dr. Jorge Rabadilla died. Private respondent brought a complaint, to
enforce the provisions of subject Codicil.

[G.R. No. L-40789. February 27, 1987.]

INTESTATE ESTATE OF PETRA V. ROSALES. IRENEA C.
ROSALES, Petitioner, v. FORTUNATO ROSALES, MAGNA ROSALES
ACEBES, MACIKEQUEROX ROSALES and ANTONIO
ROSALES,Respondents.
Jose B. Echaves for Petitioner.
Jose A. Binghay and Paul G. Gorres for Respondents.
SYLLABUs

ISSUE:
WON the obligations of Jorge Rabadilla under the Codicil are inherited
by his heirs.
HELD:
Under Article 776 of the NCC, inheritance includes all the property, rights
and obligations of a person, not extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were
transmitted to his forced heirs, at the time of his death. And since
obligations not extinguished by death also form part of the estate of the
decedent; corollarily, the obligations imposed by the Codicil on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his
compulsory heirs upon his death.

26

1. CIVIL
LAW;
WILLS
AND
SUCCESSION;
INTESTATE
SUCCESSION; INTESTATE OR LEGAL HEIRS; CLASSIFICATION.
Intestate or legal heirs are classified into two (2) groups, namely,
those who inherit by their own right, and those who inherit by the
right of representation. Restated, an intestate heir can only inherit
either by his own right, as in the order of intestate succession
provided for in the Civil Code, or by the right of representation
provided for in Article 981 of the same law.
2. ID.; ID.; ID.; DAUGHTER-IN-LAW, NOT AN INTESTATE HEIR OF
HER SPOUSES PARENT. There is no provision in the Civil Code
which states that a widow (surviving spouse) is an intestate heir of
her mother-in-law. The entire Code is devoid of any provision which
entitles her to inherit from her mother-in-law either by her own right
or by the right of representation. The provisions of the Code which
relate to the order of intestate succession (Articles 978 to 1014)
enumerate with meticulous exactitude the intestate heirs of a
decedent, with the State as the final intestate heir. The conspicuous
absence of a provision which makes a daughter-in-law an intestate
heir of the deceased all the more confirms Our observation. If the
legislature intended to make the surviving spouse an intestate heir of
the parent-in-law, it would have so provided in the Code.
3. ID.; ID.; WIDOW OR WIDOWER MENTIONED IN ARTICLE 887 OF
THE CIVIL CODE REFERS TO SURVIVING SPOUSE. Petitioner
argues that she is a compulsory heir in accordance with the
provisions of article 887 of the Civil Code. the aforesaid provision of
law refers to the estate of the deceased spouse in which case the

SUCCESSION

surviving spouse (widow or widower) is a compulsory heir. It does

not apply to the estate of a parent-in-law.
4. ID.; ID.; ID.; SURVIVING SPOUSE CONSIDERED A THIRD PARTY
WITH RESPECT TO ESTATE OF PARENT-IN-LAW. Indeed, the
surviving spouse is considered a third person as regards the estate
of the parent-in-law. We had occasion to make this observation in
Lachenal v. Salas, to wit: "We hold that the title to the fishing boat
should be determined in Civil Case No., 3597 (not in the intestate
proceeding) because it affects the lessee thereof, Lope L. Leoncio,
the decedents son-in-law, who, although married to his daughter or
compulsory heir, is nevertheless a third person with respect to his
estate. . . . ." (Emphasis supplied).
5. ID.; ID.; ID.; RIGHT OF REPRESENTATION; BLOOD
RELATIONSHIP; BASIS THEREOF. Article 971 explicitly declares
that Macikequeroz Rosales is called to succession by law because of
his blood relationship. He does not succeed his father, Carterio
Rosales (the person represented) who predeceased his
grandmother, Petra Rosales, but the latter whom his father would
have succeeded. Petitioner cannot assert the same right of
representation as she has no filiation by blood with her mother-inlaw.
6. ID.; ID.; ID.; INCHOATE RIGHT TO ESTATE EXTINGUISHED BY
DEATH OF HEIR. Petitioner contends that at the time of the death
of her husband Corterio Rosales he had an inchoate or contingent
right to the properties of Petra Rosales as compulsory heirs. Be that
as it may, said right of her husband was extinguished by this death
that is why it is their son Macikequerox Rosales who succeeded from
Petra Rosales by right of representation. He did not succeed from his
deceased father, Carterio Rosales.
GANCAYCO, J.:
27

In this Petition for Review of two (2) Orders of the Court of First Instance
of Cebu the question raised is whether the widow whose husband
predeceased his mother can inherit from the latter, her mother-in-law.
It appears from the record of the case that on February 26, 1971, Mrs.
Petra V. Rosales, a resident of Cebu City, died intestate. She was
SUCCESSION

survived by her husband Fortunate T. Rosales and their two (2) children
Magna Rosales Acebes and Antonio Rosales. Another child, Carterio
Rosales, predeceased her, leaving behind a child, Macikequerox
Rosales, and his widow Irenea C. Rosales, the herein petitioner. The
estate of the dismissed has an estimated gross value of about Thirty
Thousand Pesos (P30,000.00).
On July 10, 1971, Magna Rosales Acebes instituted the proceedings for
the settlement of the estate of the deceased in the Court of First Instance
of Cebu. The case was docketed as Special Proceedings No. 3204-R.
Thereafter, the trial court appointed Magna Rosales Acebes
administratrix of the said estate.
In the course of the intestate proceedings, the trial court issued an Order
dated June 16, 1972 declaring the following in individuals the legal heirs
of the deceased and prescribing their respective share of the estate
Fortunata T. Rosales (husband), 1/4; Magna R. Acebes
(daughter), 1/4; Macikequerox Rosales, 1/4; and Antonio
Rosales son, 1/4.
This declaration was reiterated by the trial court in its Order I dated
February 4, 1975.
These Orders notwithstanding, Irenea Rosales insisted in getting a share
of the estate in her capacity as the surviving spouse of the late Carterio
Rosales, son of the deceased, claiming that she is a compulsory heir of
her mother-in-law together with her son, Macikequerox Rosales.
Thus, Irenea Rosales sought the reconsideration of the aforementioned
Orders. The trial court denied her plea. Hence this petition.
In sum, the petitioner poses two (2) questions for Our resolution petition.
First is a widow (surviving spouse) an intestate heir of her mother-inlaw? Second are the Orders of the trial court which excluded the
widow from getting a share of the estate in question final as against the
said widow?

Our answer to the first question is in the negative.

Intestate or legal heirs are classified into two (2) groups, namely, those
who inherit by their own right, and those who inherit by the right of
representation. 1 Restated, an intestate heir can only inherit either by his
own right, as in the order of intestate succession provided for in the Civil
Code, 2 or by the right of representation provided for in Article 981 of the
same law. The relevant provisions of the Civil Code are:
Art. 980. The children of the deceased shall always
inherit from him in their own right, dividing the
inheritance in equal shares.
Art. 981. Should children of the deceased and
descendants of other children who are dead, survive, the
former shall inherit in their own right, and the latter by
right of representation.
Art. 982. The grandchildren and other descendants shag
inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in
equal portions.
Art. 999. When the widow or widower survives with
legitimate children or their descendants and illegitimate
children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to
the same share as that of a legitimate child.
There is no provision in the Civil Code which states that a widow
(surviving spouse) is an intestate heir of her mother-in-law. The entire
28
Code is devoid of any provision which entitles her to inherit from her
mother-in- law either by her own right or by the right of representation.
The provisions of the Code which relate to the order of intestate
succession (Articles 978 to 1014) enumerate with meticulous exactitude
the intestate heirs of a decedent, with the State as the final intestate heir.
The conspicuous absence of a provision which makes a daughter-in-law
an intestate heir of the deceased all the more confirms Our observation.
SUCCESSION

If the legislature intended to make the surviving spouse an intestate heir

of the parent-in-law, it would have so provided in the Code.
Petitioner argues that she is a compulsory heir in accordance with the
provisions of Article 887 of the Civil Code which provides that:
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to
their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children
by legal fiction;
(5) Other illegitimate children referred to in article 287;
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not
excluded by those in Nos. 1 and 2; neither do they
exclude one another.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner
and to the extent established by this Code.
The aforesaid provision of law 3 refers to the estate of the deceased
spouse in which case the surviving spouse (widow or widower) is a
compulsory heir. It does not apply to the estate of a parent-in-law.

Indeed, the surviving spouse is considered a third person as regards the

estate of the parent-in-law. We had occasion to make this observation
in Lachenal v. Salas, 4 to Wit:
We hold that the title to the fishing boat should be
determined in Civil Case No. 3597 (not in the intestate
proceeding) because it affects the lessee thereof, Lope
L. Leoncio, the decedent's son-in-law, who, although
married to his daughter or compulsory heir, is
nevertheless a third person with respect to his estate. ...
(Emphasis supplied).
By the same token, the provision of Article 999 of the Civil Code
aforecited does not support petitioner's claim. A careful examination of
the said Article confirms that the estate contemplated therein is the
estate of the deceased spouse. The estate which is the subject matter of
the intestate estate proceedings in this case is that of the deceased
Petra V. Rosales, the mother-in-law of the petitioner. It is from the estate
of Petra V. Rosales that Macikequerox Rosales draws a share of the
inheritance by the right of representation as provided by Article 981 of the
Code.
The essence and nature of the right of representation is explained by
Articles 970 and 971 of the Civil Code, viz

Petitioner however contends that at the time of the death of her husband
Carterio Rosales he had an inchoate or contingent right to the properties
of Petra Rosales as compulsory heir. Be that as it may, said right of her
husband was extinguished by his death that is why it is their son
Macikequerox Rosales who succeeded from Petra Rosales by right of
representation. He did not succeed from his deceased father, Carterio
Rosales.
On the basis of the foregoing observations and conclusions, We find it
unnecessary to pass upon the second question posed by the petitioner.
Accordingly, it is Our considered opinion, and We so hold, that a
surviving spouse is not an intestate heir of his or her parent-in-law.
WHEREFORE, in view of the foregoing, the Petition is hereby DENIED
for lack of merit, with costs against the petitioner. Let this case be
remanded to the trial-court for further proceedings.
SO ORDERED.

Art. 970. Representation is a right created by fiction of

law, by virtue of which the representative is raised to the
place and the degree of the person represented, and
acquires the rights which the latter would have if he were
living or if he could have inherited.

Yap (Chairman), Narvasa, Melencio-Herrera, Cruz, Feliciano and

Sarmiento, JJ., concur.

Art. 971. The representative is called to the succession

29
by the law and not by the person represented. The
representative does not succeed the person
represented but the one whom the person represented
would have succeeded. (Emphasis supplied.)

Principle:

Article 971 explicitly declares that Macikequerox Rosales is called to

succession by law because of his blood relationship. He does not
SUCCESSION

succeed his father, Carterio Rosales (the person represented) who

predeceased his grandmother, Petra Rosales, but the latter whom his
father would have succeeded. Petitioner cannot assert the same right of
representation as she has no filiation by blood with her mother-in-law.

INTESTATE ESTATE OF PETRA V. ROSALES, IRENEA C. ROSALES,

petitioner, vs.FORTUNATO ROSALES, ET AL

A widow/widower cannot inherit from the parent-in-law by right of

representation. Article 971 explicitly declares that the representative is
called to succession by law because of blood relationship. The
representative does not succeed the person represented but the one
whom the person represented would have succeeded. A widow of the

person represented cannot assert the same right of representation as

there is no filiation by blood.
Facts: Petra Rosales is the decedent. She is survived by her husband,
their two (2) children Magna Rosales Acebes and Antonio Rosales.
Another child, Carterio Rosales, predeceased her, leaving behind a child,
Macikequerox Rosales, and his widow Irenea C. Rosales, the herein
petitioner.
In the course of the intestate proceedings, the trial court issued an Order
dated June 16, 1972 declaring the following in individuals the legal heirs
of the deceased and prescribing their respective share of the estate

The conspicuous absence of a provision which makes a daughter-in-law

an intestate heir of the deceased all the more confirms Our observation.
If the legislature intended to make the surviving spouse an intestate heir
of the parent-in-law, it would have so provided in the Code.
Article 887 refers to the estate of the deceased spouse in which case the
surviving spouse (widow or widower) is a compulsory heir. It does not
apply to the estate of a parent-in-law.
Indeed, the surviving spouse is considered a third person as regards the
estate of the parent-in-law.
ROSALES vs ROSALES

Fortunata T. Rosales (husband), 1/4; Magna R. Acebes (daughter), 1/4;

Macikequerox Rosales, 1/4; and Antonio Rosales son, 1/4.
These Orders notwithstanding, Irenea Rosales insisted in getting a share
of the estate in her capacity as the surviving spouse of the late Carterio
Rosales, son of the deceased, claiming that she is a compulsory heir of
her mother-in-law together with her son, Macikequerox Rosales.

Facts:
Irenea Rosales, wife of Carterio Rosales insisted on getting a share from
the estate in her capacity as surviving spouse from the estate of her
mother-in-law.
Issue:

Petitioner contends that she is a compulsory heir as enumerated in Art.

887 being the widow or widower of the son of the decedent and that at
the time of the death of her husband Carterio Rosales he had an
inchoate or contingent right to the properties of Petra Rosales as her
compulsory heir.

Whether or not a daughter-in-law is entitled to the estate of a her parentin-law in her capacity as the surviving spouse of a son who predeceased
his mother;
Ruling:

Issue: Can a widow inherit from the mother-in-law?

Held: NO
There is no provision in the Civil Code which states that
a widow
30
(surviving spouse) is an intestate heir of her mother-in-law. The entire
Code is devoid of any provision which entitles her to inherit from her
mother-in- law either by her own right or by the right of representation.
The provisions of the Code which relate to the order of intestate
succession (Articles 978 to 1014) enumerate with meticulous exactitude
the intestate heirs of a decedent, with the State as the final intestate heir.
SUCCESSION

Classification of intestate succession: intestate successors re classified

into two:
1.

Those who inherit by their own right;

2.

Those who inherit by right of representation (Art. 981)

There is no provision in the Civil Code which states that a a widow is an

intestate heir of her mother-in-law;

Art. 887 (961) refers to the estate of the deceased spouse in which case
the surviving spouse is a compulsory heir;
Surviving spouse is a third party in the estate of a parent-in-law;
The basis for right of representation is blood relationship;
Inchoate right is extinguished by death of an heir;
3.

Order of the share in the intestate succession

Art. 962. In every inheritance, the relatives nearest in degree excludes

the more distant ones, saving the right of representation when it properly
takes place;
Relatives in the same degree shall inherit equal shares, subject to the
provisions of Article 1006

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

With respect to relatives of the full blood and half blood,

G.R. No. L-30977 January 31, 1972

And or Article 987, paragraph 2, concerning division between

the paternal and maternal lines;

CARMEN LAPUZ SY, represented by her substitute MACARIO

LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.
SYLLABUS

31

SUCCESSION

1. CIVIL LAW; ACTION FOR LEGAL SEPARATION; NATURE OF

ACTION; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL
DECREE. The death of the plaintiff before final decree in an
action for legal separation abates the action. An action for legal
separation which involves nothing more than the bed-and-board
separation of the spouses (there being no absolute divorce in this
jurisdiction) is purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the innocent

spouse (and no one else) to claim legal separation and in its article
108, by providing that the spouses can, by reconciliation, stop or
abate the proceedings and even rescind a decree of legal separation
already rendered. Being personal in character, it follows that the
death of one party to the action causes the death of the action itself
actio personalis moritur cum persona.
2.

ID.; ID.; ID.; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL

DECREE ON PROPERTY RELATIONS. A review of the resulting
changes in property relations between spouses shows that they are
solely the effect of the decree of legal separation; hence, they can
not survive the death of the plaintiff if it occurs prior to the decree.

3. ID.; ID.; ID.; ID.; CLAIM TO RIGHTS UNDER ART. 106, CIVIL CODE
OF THE PHILIPPINES, EXTINGUISHED UPON THE DEATH OF
THE SPOUSE INVOLVED. From Art. 106 of the Civil Code of the
Philippines it is apparent that the right to the dissolution of the
conjugal partnership or gains (or of the absolute community of
property), the loss of right by the offending spouse to any share of
the profits earned by the partnership or community, or his
disqualification to inherit by intestacy from the innocent spouse as
well as revocation testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and disabilities that,
by the very terms of Civil Code article, are vested exclusively in the
persons of the spouses; and by their nature and intent, such claims
and disabilities are difficult to conceive as assignable or
transmissible. Hence, a claim to said rights is not a claim that "is not
thereby extinguished" after a party dies, under section 17 Rule 3 of
the Rules of Court, to warrant continuation of the action through a
substitute of the deceased party. The same result flows from a
consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 67, of the Revised Rules of
Court which shows that neither action for legal separation or for
annulment of marriage can be deemed fairly included therein.
4. ID.; ID.; ID.; ID.; ID.; REASON. The reason why an action is
32
abated by the death of the plaintiff, even if property rights are
involved, is that these rights are mere effects of a decree of
separation, their source being the decree itself; without the decree
such rights do not come into existence, so that before the finality of a
decree, these claims are merely rights in expectation. If death
supervenes during the pendency of the action, no decree can be
forthcoming, death producing a more radical and definitive
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separation; and the expected consequential rights and claims would

necessarily remain unborn.
5. ID.; ID.; ID.; ACTION FOR DECLARATION OF NULLITY AB INITIO
OF MARRIAGE; EFFECT OF DEATH OF PLAINTIFF UPON
DEFENDANTS PROPERTY RIGHTS. A petition for a declaration
of nullity ab initio of marriage becomes moot and academic upon the
death of the wife, and there could be no further interest in continuing
the same after her demise, that automatically dissolved the
questioned union. Any property rights acquired by either party as a
result of Art. 144 of the Civil Code of the Philippines could be
resolved and determined in a proper action for partition by either the
appellee or by the heirs of the Appellant.
6. ID.; ID.; ID.; ACTION FOR ANNULMENT OF BIGAMOUS VOIDABLE
MARRIAGE; EFFECT OF DEATH OF ONE PARTY; PROPER
PROCEEDINGS FOR LIQUIDATION CONJUGAL PARTNERSHIP.
Even if the bigamous marriage had not been void ab initio but only
voidable under Article 83, par. 2 of the Civil Code, because the second
marriage had been contracted with the first wife having been an
absentee for seven consecutive years, or when she had been generally
believed dead, still the action for annulment became extinguished as
soon as one of the three persons involved had died, as provided in
Article 87, par. 2 of the Code, requiring that the action for annulment
should be brought during the lifetime of any one of the parties involved.
And furthermore, the liquidation of any conjugal partnership might have
resulted from such voidable marriage must be carried out "in the testate
or intestate proceedings of the deceased spouse", as expressly provided
in section 3 of the Revised Rule 73, and not in the annulment
proceedings.
REYES J.B.L., J.:p
Petition, filed after the effectivity of Republic Act 5440, for review
by certiorari of an order, dated 29 July 1969, of the Juvenile and
Domestic Relations Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the ground that the death of
the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the
pendency of the case, abated the cause of action as well as the action
itself. The dismissal order was issued over the objection of Macario
Lapuz, the heir of the deceased plaintiff (and petitioner herein) who
sought to substitute the deceased and to have the case prosecuted to
final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal

separation against Eufemio S. Eufemio, alleging, in the main, that they
were married civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as husband and wife
continuously until 1943 when her husband abandoned her; that they had
no child; that they acquired properties during their marriage; and that she
discovered her husband cohabiting with a Chinese woman named Go
Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed
for the issuance of a decree of legal separation, which, among others,
would order that the defendant Eufemio S. Eufemio should be deprived
of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent
Eufemio S. Eufemio alleged affirmative and special defenses, and, along
with several other claims involving money and other properties, counterclaimed for the declaration of nullity ab initio of his marriage with Carmen
O. Lapuz Sy, on the ground of his prior and subsisting marriage,
celebrated according to Chinese law and customs, with one Go Hiok,
alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their
respective evidence. But before the trial could be completed (the
respondent was already scheduled to present surrebuttal evidence on 9
and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular
accident on 31 May 1969. Counsel for petitioner duly notified the court of
her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for
legal separation" 1 on two (2) grounds, namely: that the petition for legal
separation was filed beyond the one-year period provided for in Article
102 of the Civil Code; and that the death of Carmen abated the action for
legal separation.
33

On 26 June 1969, counsel for deceased petitioner moved to substitute

the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio
opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the
case. 2 In the body of the order, the court stated that the motion to
SUCCESSION

dismiss and the motion for substitution had to be resolved on the

question of whether or not the plaintiff's cause of action has survived,
which the court resolved in the negative. Petitioner's moved to reconsider
but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the
order of dismissal issued by the juvenile and domestic relations court, the
petitioner filed the present petition on 14 October 1969. The same was
given due course and answer thereto was filed by respondent, who
prayed for the affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S.
Eufemio, filed counterclaims, he did not pursue them after the court
below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed
not only the petition for legal separation but also his counterclaim to
declare the Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute
for the lower court did not act on the motion for substitution) stated the
principal issue to be as follows:
When an action for legal separation is converted by the
counterclaim into one for a declaration of nullity of a
marriage, does the death of a party abate the
proceedings?
The issue as framed by petitioner injects into it a supposed conversion of
a legal separation suit to one for declaration of nullity of a marriage,
which is without basis, for even petitioner asserted that "the respondent
has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief,
page 22). Not only this. The petition for legal separation and the
counterclaim to declare the nullity of the self same marriage can stand
independent and separate adjudication. They are not inseparable nor
was the action for legal separation converted into one for a declaration of
nullity by the counterclaim, for legal separation pre-supposes a valid
marriage, while the petition for nullity has a voidable marriage as a precondition.

The first real issue in this case is: Does the death of the plaintiff before
final decree, in an action for legal separation, abate the action? If it does,
will abatement also apply if the action involves property rights? .
An action for legal separation which involves nothing more than the bedand-board separation of the spouses (there being no absolute divorce in
this jurisdiction) is purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the innocent spouse
(and no one else) to claim legal separation; and in its Article 108, by
providing that the spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one
party to the action causes the death of the action itself actio
personalis moritur cum persona.
... When one of the spouses is dead, there is no need for
divorce, because the marriage is dissolved. The heirs
cannot even continue the suit, if the death of the spouse
takes place during the course of the suit (Article 244,
Section 3). The action is absolutely dead (Cass., July 27,
1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933,
332.") 4 .
Marriage is a personal relation or status, created under
the sanction of law, and an action for divorce is a
proceeding brought for the purpose of effecting a
dissolution of that relation. The action is one of a
personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action
abates the action, for the reason that death has settled
the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons
34
of the parties to the action and of the subject-matter
of
the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a
divorce proceeding, before final decree, abates the
action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196
N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann.
SUCCESSION

Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;

Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659;
McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717;
Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A.
141. 5
The same rule is true of causes of action and suits for separation and
maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses
shows that they are solely the effect of the decree of legal separation;
hence, they can not survive the death of the plaintiff if it occurs prior to
the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed;
.
(2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and
liquidated, but the offending spouse shall have no right
to any share of the profits earned by the partnership or
community, without prejudice to the provisions of article
176;
(3) The custody of the minor children shall be awarded
to the innocent spouse, unless otherwise directed by the
court in the interest of said minors, for whom said court
may appoint a guardian;
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent one
shall be revoked by operation of law.

From this article it is apparent that the right to the dissolution of the
conjugal partnership of gains (or of the absolute community of property),
the loss of right by the offending spouse to any share of the profits
earned by the partnership or community, or his disqualification to inherit
by intestacy from the innocent spouse as well as the revocation of
testamentary provisions in favor of the offending spouse made by the
innocent one, are all rights and disabilities that, by the very terms of the
Civil Code article, are vested exclusively in the persons of the spouses;
and by their nature and intent, such claims and disabilities are difficult to
conceive as assignable or transmissible. Hence, a claim to said rights is
not a claim that "is not thereby extinguished" after a party dies, under
Section 17, Rule 3, of the Rules of Court, to warrant continuation of the
action through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim
is not thereby extinguished, the court shall order, upon
proper notice, the legal representative of the deceased
to appear and to be substituted for the deceased, within
a period of thirty (30) days, or within such time as may
be granted...
The same result flows from a consideration of the enumeration of the
actions that survive for or against administrators in Section 1, Rule 87, of
the Revised Rules of Court:
SECTION 1. Actions which may and which may not be
brought against executor or administrator. No action
upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the
executor or administrator; but actions to recover real or
personal property, or an interest therein, from the estate,
or to enforce a lien thereon, and actions to recover
35 real or
damages for an injury to person or property,
personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be
deemed fairly included in the enumeration..

A further reason why an action for legal separation is abated by the death
of the plaintiff, even if property rights are involved, is that these rights are
mere effects of decree of separation, their source being the decree itself;
without the decree such rights do not come into existence, so that before
the finality of a decree, these claims are merely rights in expectation. If
death supervenes during the pendency of the action, no decree can be
forthcoming, death producing a more radical and definitive separation;
and the expected consequential rights and claims would necessarily
remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of
nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such
action became moot and academic upon the death of the latter, and
there could be no further interest in continuing the same after her
demise, that automatically dissolved the questioned union. Any property
rights acquired by either party as a result of Article 144 of the Civil Code
of the Philippines 6 could be resolved and determined in a proper action
for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but
only voidable under Article 83, paragraph 2, of the Civil Code, because
the second marriage had been contracted with the first wife having been
an absentee for seven consecutive years, or when she had been
generally believed dead, still the action for annulment became
extinguished as soon as one of the three persons involved had died, as
provided in Article 87, paragraph 2, of the Code, requiring that the action
for annulment should be brought during the lifetime of any one of the
parties involved. And furthermore, the liquidation of any conjugal
partnership that might have resulted from such voidable marriage must
be carried out "in the testate or intestate proceedings of the deceased
spouse", as expressly provided in Section 2 of the Revised Rule 73, and
not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile
and Domestic Relations is hereby affirmed. No special pronouncement
as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo, Villamor and Makasiar, JJ., concur.

SUCCESSION

Lapuz-Sy vs. Eufemio

43 SCRA 177
FACTS:

The petition of Eufemio for declaration of nullity is moot and academic

and there could be no further interest in continuing the same after her
demise, that automatically dissolved the questioned union. Any property
rights acquired by either party as a result of Article 144 of the Civil Code
of the Philippines 6 could be resolved and determined in a proper action
for partition by either the appellee or by the heirs of the appellant.

Carmen Lapuz-Sy filed a petition for legal separation against Eufemio

Eufemio on August 1953. They were married civilly on September 21,
1934 and canonically after nine days. They had lived together as
husband and wife continuously without any children until 1943 when her
husband abandoned her. They acquired properties during their
marriage. Petitioner then discovered that her husband cohabited with a
Chinese woman named Go Hiok on or about 1949. She prayed for the
issuance of a decree of legal separation, which among others, would
order that the defendant Eufemio should be deprived of his share of the
conjugal partnership profits.
Eufemio counterclaimed for the declaration of nullity of his marriage with
Lapuz-Sy on the ground of his prior and subsisting marriage with Go
Hiok. Trial proceeded and the parties adduced their respective
evidence. However, before the trial could be completed, respondent
already scheduled to present surrebuttal evidence, petitioner died in a
vehicular accident on May 1969. Her counsel duly notified the court of
her death. Eufemio moved to dismiss the petition for legal separation on
June 1969 on the grounds that the said petition was filed beyond the
one-year period provided in Article 102 of the Civil Code and that the
death of Carmen abated the action for legal separation. Petitioners
counsel moved to substitute the deceased Carmen by her father,
Macario Lapuz.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82233 March 22, 1990

ISSUE:
Whether the death of the plaintiff, before final decree in an action for
legal separation, abate the action and will it also apply if the action
involved property rights.

JOSE BARITUA and EDGAR BITANCOR, petitioners,

vs.
HONORABLE COURT OF APPEALS, NICOLAS NACARIO and
VICTORIA RONDA NACARIO, respondents.

HELD:

Domingo Lucenario for petitioners.

36
An action for legal separation is abated by the death of the plaintiff,
even
if property rights are involved. These rights are mere effects of decree of
separation, their source being the decree itself; without the decree such
rights do not come into existence, so that before the finality of a decree,
these claims are merely rights in expectation. If death supervenes during
the pendency of the action, no decree can be forthcoming, death
producing a more radical and definitive separation; and the expected
consequential rights and claims would necessarily remain unborn.
SUCCESSION

Ernesto A. Atienza for private respondents.

SARMIENTO, J.:
This petition for review on certiorari assails as erroneous and contrary to
existing relevant laws and applicable jurisprudence the decision 1 of the

Court of Appeals dated December 11, 1987 which reversed and set aside
that of the Regional Trial Court, Branch XXXII, at Pili, Camarines
Sur. 2 The challenged decision adjudged the petitioners liable to the
private respondents in the total amount of P20,505.00 and for costs.
The facts are as follows:
In the evening of November 7, 1979, the tricycle then being driven by
Bienvenido Nacario along the national highway at Barangay San
Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus
No. 80 driven by petitioner Edgar Bitancor and owned and operated by
petitioner Jose Baritua. 3 As a result of that accident Bienvenido and his
passenger died 4 and the tricycle was damaged. 5 No criminal case
arising from the incident was ever instituted. 6
Subsequently, on March 27, 1980, as a consequence of the extra-judicial
settlement of the matter negotiated by the petitioners and the bus insurer
Philippine First Insurance Company, Incorporated (PFICI for brevity)
Bienvenido Nacario's widow, Alicia Baracena Vda. de Nacario,
received P18,500.00. In consideration of the amount she received, Alicia
executed on March 27, 1980 a "Release of Claim" in favor of the
petitioners and PFICI, releasing and forever discharging them from all
actions, claims, and demands arising from the accident which resulted in
her husband's death and the damage to the tricycle which the deceased
was then driving. Alicia likewise executed an affidavit of desistance in
which she formally manifested her lack of interest in instituting any case,
either civil or criminal, against the petitioners. 7
On September 2, 1981, or about one year and ten months from the date
of the accident on November 7, 1979, the private respondents, who are
the parents of Bienvenido Nacario, filed a complaint for damages against
the petitioners with the then Court of First Instance of Camarines Sur. 8 In
37
their complaint, the private respondents alleged that during the vigil for
their deceased son, the petitioners through their representatives
promised them (the private respondents) that as extra-judicial settlement,
they shall be indemnified for the death of their son, for the funeral
expenses incurred by reason thereof, and for the damage for the tricycle
the purchase price of which they (the private respondents) only loaned to
the victim. The petitioners, however, reneged on their promise and
SUCCESSION

instead negotiated and settled their obligations with the long-estranged

wife of their late son. The Nacario spouses prayed that the defendants,
petitioners herein, be ordered to indemnify them in the amount of
P25,000.00 for the death of their son Bienvenido, P10,000.00 for the
damaged tricycle, P25,000.00 for compensatory and exemplary
damages, P5,000.00 for attorney's fees, and for moral damages. 9
After trial, the court a quo dismissed the complaint, holding that the
payment by the defendants (herein petitioners) to the widow and her
child, who are the preferred heirs and successors-in-interest of the
deceased Bienvenido to the exclusion of his parents, the plaintiffs (herein
private respondents), extinguished any claim against the defendants
(petitioners). 10
The parents appealed to the Court of Appeals which reversed the
judgment of the trial court. The appellate court ruled that the release
executed by Alicia Baracena Vda. de Nacario did not discharge the
liability of the petitioners because the case was instituted by the private
respondents in their own capacity and not as "heirs, representatives,
successors, and assigns" of Alicia; and Alicia could not have validly
waived the damages being prayed for (by the private respondents) since
she was not the one who suffered these damages arising from the death
of their son. Furthermore, the appellate court said that the petitioners
"failed to rebut the testimony of the appellants (private respondents) that
they were the ones who bought the tricycle that was damaged in the
incident. Appellants had the burden of proof of such fact, and they did
establish such fact in their testimony . . . 11Anent the funeral expenses,
"(T)he expenses for the funeral were likewise shouldered by the
appellants (the private respondents). This was never contradicted by the
appellees (petitioners). . . . Payment (for these) were made by the
appellants, therefore, the reimbursement must accrue in their favor. 12
Consequently, the respondent appellate court ordered the petitioners to
pay the private respondents P10,000.00 for the damage of the tricycle,
P5,000.00 for "complete" funeral services, P450.00 for cemetery lot,
P55.00 fororacion adulto, and P5,000.00 for attorney's fees. 13 The
petitioners
moved
for
a reconsideration of the appellate court's decision 14 but their motion was
denied. 15 Hence, this petition.

The issue here is whether or not the respondent appellate court erred in
holding that the petitioners are still liable to pay the private respondents
the aggregate amount of P20,505.00 despite the agreement of
extrajudicial settlement between the petitioners and the victim's
compulsory heirs.

successor in interest, or any person authorized to

receive it.
Certainly there can be no question that Alicia and her son with the
deceased are the successors in interest referred to in law as the persons
authorized to receive payment. The Civil Code states:

The petition is meritorious.

Article 887. The following are compulsory heirs:
Obligations are extinguished by various modes among them being by
payment. Article 1231 of the Civil Code of the Philippines provides:

1. Legitimate children and descendants, with respect to

their legitimate parents and ascendants;

Art. 1231. Obligations are extinguished:

(1) By payment or performance;

2. In default of the foregoing, legitimate parents and

ascendants with respect to their legitimate children and
decendants;

(2) By the loss of the thing due;

3. The widow or widower;
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor
and debtor;

4. Acknowledged natural children and natural children by

legal fiction;
5. Other illegitimate children referred to in Article 287.

(5) By compensation;
(6) By novation.

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not

excluded by those in Nos. 1 and 2. Neither do they
exclude one another. (Emphasis ours.)

(Emphasis ours.)
There is no denying that the petitioners had paid their obligation petition
arising from the accident that occurred on November 7, 1979. The only
question now is whether or not Alicia, the spouse and the one who
received the petitioners' payment, is entitled to it.
38
Article 1240 of the Civil Code of the Philippines enumerates the persons
to whom payment to extinguish an obligation should be made.
Art 1240. Payment shall be made to the person in whose
favor the obligation has been constituted, or his
SUCCESSION

Article 985. In default of legitimate children and

descendants of the deceased, his parents and
ascendants shall inherit from him, to the exclusion of
collateral relatives.
(Emphasis ours.)
It is patently clear that the parents of the deceased succeed only when
the latter dies without a legitimate descendant. On the other hand, the
surviving spouse concurs with all classes of heirs. As it has been
established that Bienvenido was married to Alicia and that they begot a

child, the private respondents are not successors-in-interest of

Bienvenido; they are not compulsory heirs. The petitioners therefore
acted correctly in settling their obligation with Alicia as the widow of
Bienvenido and as the natural guardian of their lone child. This is so
even if Alicia had been estranged from Bienvenido. Mere estrangement
is not a legal ground for the disqualification of a surviving spouse as an
heir of the deceased spouse.
Neither could the private respondents, as alleged creditors of
Bienvenido, seek relief and compensation from the petitioners. While it
may be true that the private respondents loaned to Bienvenido the
purchase price of the damaged tricycle and shouldered the expenses for
his funeral, the said purchase price and expenses are but money claims
against the estate of their deceased son. 16 These money claims are not
the liabilities of the petitioners who, as we have said, had been released
by the agreement of the extra-judicial settlement they concluded with
Alicia Baracena Vda. de Nacario, the victim's widow and heir, as well as
the natural guardian of their child, her co-heir. As a matter of fact, she
executed a "Release Of Claim" in favor of the petitioners.
WHEREFORE, the petition is GRANTED; the decision of the Court of
Appeals is REVERSED and SET ASIDE and the decision of the Regional
Trial Court is hereby REINSTATED. Costs against the private
respondents.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
Baritua v. CA (Mar. 22, 1990)
CAPTION/PROBLEM: Tricycle collided with bus, tricycle driver died. Bus
39 tricycle
operator settled with tricycle drivers estranged wife. A year later,
drivers parents sued bus operator for damages alleging that the latter
promised to indemnify them for the death of the son, his funeral
expenses and the damaged tricycle (which was allegedly bought with the
parents money). Who is entitled to the indemnity the estranged wife or
the parents?

SUCCESSION

HELD: Tricycle drivers parents cannot claim because they are not his
compulsory heirs. His wife and child are the compulsory heirs. Spouse
concurs with all classes of heirs but parents are compulsory heirs only
when decedent dieswithout a legitimate descendant.
FACTS:
Nov. 7, 1979 - BIENVENIDO Nacarios tricycle collided with JB Bus No.
80 operated by Jose BARITUA and driven by Edgar BITANCOR, along
the National Highway, San Cayetano, Baao, CamSur. Bienvenido and
his passenger died because of the accident.
Bienvenido was survived by his estranged wife ALICIA Baracena (with
whom he had a child), and his PARENTS, NICOLAS and VICTORIA
Nacario. Mar. 27, 1980 The bus companys insurer paid P18,500 to
Alicia by virtue of an extra-judicial settlement wherein Alicia agreed to not
to prosecute Baritua and Bitancor for her husbands death.o She
executed a Release of Claim in favor of Baritua, Bitancor, and the
insurer releasing them from all claims and damages resulting from the
accident which killed Bienvenido. Sep. 2, 1981 Nicolas and Victoria
filed a suit for damages before the CamSur CFI against Baritua and
Bitancor.o Parents alleged that Baritua went to Bienvenidos wake and
promised them indemnity for Bienvenidos death, the funeral expenses,
and the damaged tricycle (which was bought from money loaned by the
parents to their son). CFI dismissed the complaint, holding that the
payment to Alicia (and the child) extinguished any claim against Baritua
et.al. for the death of Bienvenido since Alicia and her child are the
preferred heirs and successors-in-interest of Bienvenido. CA reversed
the CFI, holding that:o The parents brought the case in their personal
capacity and not as heirs.o Alicia could not have validly waived the claim
of the parents since she was not the one who suffered such damages.o
The parents were able to establish that they bought the tricycle and
Baritua et.al. failed to prove otherwise, hence they must pay for the
damage to the tricycle.o AWARD: P10,000.00 for the damage of the
tricycle, P5,000.00 for complete funeral services, P450.00 for cemetery
lot, P55.00 for oracion adulto, and P5,000.00 for attorneys fees.
Baritua and Bitancor appealed to the SC.
ISSUE W/N Baritua et.al. are still liable to pay damages to the parents
despite the extra-judicial settlement with the wife. (NO)
RATIO :

NCC 1231(1): Obligations are extinguished by payment or

performance. NCC 1240: Payment shall be made to the person in
whose favor the obligation has been constituted, or his successor in
interest, or any person authorized to receive it. It has been established
that Baritua et.al. have paid the claim to Alicia. The question now: Is
Alicia entitled to such payment? According to NCC 887,
No. 2, legitimate parents and ascendants become compulsory heirs in
default of legitimate children and descendants. NCC 985 provides: In
default of legitimate children and descendants of the deceased, his
parents and ascendants shall inherit from him, to the exclusion of
collateral relatives. On the other hand, NCC 887 also provides that the
surviving spouse is also a compulsory heir; and s/he is not excluded by
the
legitimate
children/descendants
or
by
the
legitimate
parents/ascendants.
SC: It is patently clear that the parents of the deceased succeed only
when the latter dies without a legitimate descendant. On the other hand,
the surviving spouse concurs with all classes of heirs.

Jose Baritua and Edgar Bitancor vs. Court of Appeals, Nicolas

Nacario and Victoria Ronda Nacario
Facts:On November 7, 1979, the tricycle driven by Bienvenido Nacario along
the national highway at Camarines Sur met an accident with a bus driven
by petitioner Edgar Bitancor and owned and operated by petitioner Jose
Baritua.
40

Bienvenido and his passenger died due to the accident and the tricycle
was damaged.
On March 27, 1980, extra-judicial settlement were negotiated by the
petitioners and the bus insurer with Bienvenido Nacarios widow, Alicia
Nacario where she received P18,500. After the settlement, Alicia
executed on March 27, 1980 a Release of Claim in favour of petitioners

SUCCESSION

and the bus insurer, releasing and forever discharging them from all
actions, claims, and demands arising from the accident.-

Alicia, the victims wife and after extrajudicial settlement had been
agreed. Petition granted.

About one year and ten months from the date of accident, Bienvenidos
parent, private respondent herein, filed a complaint for damages against
petitioners. Private respondents alleged that during the vigil for their
deceased son, petitioners through their representatives promised them
that as extra- judicial settlement, they shall be indemnified for the death
of their son, for funeral expenses incurred,and for the damage to the
tricycle which they only loaned to the victim. Petitioners, however,
reneged on their promise and instead negotiated and settled their
obligations with the long estranged wife of private respondents late son.
The trial court dismissed the complaint. However, on appeal, the
decision was reversed by the Court of Appeals.
Hence, this petition.
Issue:
Whether or not petitioners are still liable to pay the damages to private
respondents despite the agreement of extrajudicial settlement between
petitioners and the victims wife.
Held:No, petitioners are no longer liable to private respondents.
Article 1231 of the Civil Code provides that Obligations are extinguished:
1) by payment or performance; 2) by the loss of the thing due; 3) by
condonation or remission of the debt; 4) by the confusion or merger of
the rights of creditor and debtor; 5) by compensation; 6) by novation.
It is undeniable the petitioners had already paid their obligation to the
victims wife arising from the accident that occurred on November 7,
1979.
41person in
Article 1240 the states that Payment shall be made to the
whose favour the obligation has been constituted, or his successor in
interest, or any person authorized to receive it. And as stated in Article
887 of the Civil Code, Alicia and her son with the deceased are certainly
the successors in interest referred to in Article 1240.Therefore, the
obligation of petitioners had already been extinguished by the time they
paid their obligation to
SUCCESSION

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA
PALACIOS, Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and
ROBERTO RAMIREZ, legatees, oppositors- appellants.
SYNOPSIS
Jose Eugenio Ramirez, a Filipino national, died in Spain with only his
widow as compulsory heir. His will was admitted to probate by the Court

of First Instance of Manila, Branch X. The administratrix of the estate

submitted a project of partition giving one part of the estate to the widow
"en pleno dominio in satisfaction of her legitime while the other part of
the "free portion" to his two grandnephews Roberto and Jorge Ramirez,
as the oppositors-appellants. Furthermore, one third of the free portion is
charged with the widows usufruct and the remaining two thirds (2/3) with
a usufruct in favor of Wanda Wrobleski. Jorge and Roberto Ramirez
opposed the project of partition as well as the substitutions provided by
the testator as to the usufructs of the widow and of Wanda. Nonetheless,
the lower court approved the project of partition in its order dated May 3,
1967.
Jorge
and
Roberto
appealed.

appointment of another heir so that he may enter into the inheritance in

default of the heir originally instituted" (Art. 857, Civil Code).

The Supreme Court upheld the vulgar substitution of Wandas usufruct

despite her having survived the testator as said substitution under Art
859 of the Civil Code includes not only death but also refusal or
incapacity to accept the inheritance but disallowed the fideicommissary
aspect of the same as the substitutes are not related to the heir as
required by Art. 863 of the said Code. The Court further ruled that: (a) the
widow who is entitled to one-half of the estate "en pleno dominio" as her
legitime is not entitled to the one third usufruct over the free portion,
hence the question on its substitution has become moot and (b) that a
usufruct in favor of an alien, albeit a real right does not vest title to the
land in the usufructuary and therefore not contrary to the Constitution.

4. ID.; ID.; ID.; ID.; VULGAR SUBSTITUTION; COVERAGE. Vulgar

substitution is valid although the heir survived the testator or stated
differently did not predecease the testator because dying before the
testator is not the only case for vulgar substitution. It also includes refusal
or incapacity to accept the inheritance as provided in Art. 859 of the Civil
Code.

Order modified.
SYLLABUS

1. CIVIL LAW; TESTIMENTARY SUCCESSION; WILLS; WHEN

LEGITIME IS MORE THAN TESTATORS DISPOSITION; EFFECT.
The widow who is entitled to one-half of the estate "en pleno 42
dominio" as
her legitime which is more than what she is given under the will is not
entitled to the one third usufruct over the free portions which is an
additional share in the estate that will run counter to the testators
intention.
2. ID.: ID.; ID.; SUBSTITUTION; DEFINITION. "Substitution is the
SUCCESSION

3. ID.; ID.; ID.; ID.; KINDS. 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 two principal classes
of substitutions: the simple and the fideicommissary. The others are
merely variations of these two. (III Civil Code, p.185 [1973]). The simple
or vulgar is that provided in Art. 859 of the Civil Code while the
fideicommissary substitution is described in Art. 863 of the same Code.

5. ID.; ID.; ID.; ID.; FIDEICOMMISSARY SUBSTITUTION; DEGREE OF

RELATIONSHIP REQUIRED; NOT PRESENT IN CASE AT BAR. Art.
863 of the Civil Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from the heir originally
instituted. Hence in the case at bar, appellants are correct in their claim
that the substitution is void because the substitutes are not related to the
heir
originally
instituted.
6. ID.; ID.; ID.; I D.; MEANING OF "ONE DEGREE" EXPLAINED.
"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
transmission 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 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." (Tolentino, I I I Civil Code pp. 193-194 [1973]).

INVENTARIO

7. ID.; ID.; ID.; ID.; FIDEICOMMISSARY SUBSTITUTION; OBLIGATION

OF FIDUCIARY TO DELIVER THE INHERITANCE TO THE SECOND
HEIR. Fideicommissary substitution is void where there is no absolute
duty imposed on the first heir to transmit the usufruct to the substitutes
as required by Arts. 865 and 857 of the Civil Code but 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."

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

8. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES;

PROHIBITION AGAINST ACQUISITION OF LANDS BY ALIENS; DOES
NOT COVER USUFRUCT. Notwithstanding 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, the usufruct in favor of an alien is
upheld, because the same, albeit a real right, does not vest title to land in
the usufructuary and it is the vesting of title to land in favor of aliens
which is proscribed by the Constitution.

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

ABAD SANTOS, J.:

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

Cuenta de Ahorros en el Philippine Trust

Co.............................................................................................. 2,350.73
TOTAL.............................................................. P512,976.97

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.
43
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:
SUCCESSION

MENOS:
Deuda al Banco de las Islas Filipinas, garantizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas
menores de edad, residentes en Manila, I.F., calle 'Alright, No. 1818,
Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar
a favor de sus respectivos descendientes, y, en su defecto, con
sustitucion vulgar reciprocal entre ambos.
El precedente legado en nuda propiedad de la participacion indivisa de
la finca Santa Cruz Building, lo ordena el testador a favor de los
legatarios nombrados, en atencion a que dicha propiedad fue creacion
del querido padre del otorgante y por ser aquellos continuadores del
apellido Ramirez,
B.Y en usufructo a saber:
a. En cuanto a una tercera parte, a favor de la esposa del testador, Da.
Marcelle Ramirez, domiciliada en IE PECO, calle del General Gallieni
No. 33, Seine Francia, con sustitucion vulgar u fideicomisaria a favor de
Da. Wanda de Wrobleski, de Palma de Mallorca, Son Rapina Avenida de
los Reyes 13,
b.Y en cuanto a las dos terceras partes restantes, a favor de la
nombrada Da. Wanda de Nrobleski con sustitucion vulgar v
fideicomisaria a saber:
En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan
Pablo Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la
mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis
Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente ordinadas,
las usufiructuarias nombradas conjuntamente con los nudo propietarios,
podran en cualquier memento vender a tercero los bienes objeto
delegado, sin intervencion alguna de los titulares fideicomisaarios.
44

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.
SUCCESSION

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:

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.

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.

As regards the substitution in its fideicommissary aspect, the appellants

are correct in their claim that it is void for the following reasons:

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.

(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."

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
45
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.

SUCCESSION

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:

SO ORDERED.
Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ.,
concur.
Aquino J., took no part.
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA
PALACIOS, Administratrix, petitioner-appellee, vs. MARCELLE D.
VDA.DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors-appellants.
FACTS:
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.
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 plenodominio in satisfaction of her
legitime; the other part or free portion shall go to Jorge and Roberto
Ramirez en nudapropriedad. Furthermore, one third (1/3) of the free
portion is charged with the widows usufruct and the remaining two-third
(2/3) with a usufruct in favor of Wanda.

-APPEAL for the partitioning of testate estate of Jose Eugenio Ramirez

(a Filipino national, died in Spain on December 11, 1964) among
principal beneficiaries:

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

One-half (1/2) thereof which is the free portion to Roberto46and 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.
SUCCESSION

Marcelle Demoron de Ramirez

-widow

-French who lives in Paris

-vulgar substitution in favor of Juan Pablo Jankowski and Horacio

Ramirez

-received (as spouse) and usufructuary rights over 1/3 of the free
portion

-Maria Luisa Palacios -administratix

Roberto and Jorge Ramirez

-Jorge and Roberto Ramirez opposed because

-two grandnephews

a. vulgar substitution in favor of Wanda wrt widows usufruct and in favor

of Juan Pablo Jankowski and Horacio Ramirez, wrt to Wandas usufruct
is INVALID because first heirs (Marcelle and Wanda) survived the
testator

-lives in Malate
b. fideicommissary substitutions are INVALID because first heirs not
related to the second heirs or substitutes within the first degree as
provided in Art 863 CC

-received the (free portion)

Wanda de Wrobleski

c. grant of usufruct of real property in favor of an alien, Wanda, violated

Art XIII Sec 5

-companion

-Austrian who lives in Spain

-received usufructuary rights of 2/3 of the free portion

SUCCESSION

d. proposed partition of the testators interest in the Santa Cruz Building

between widow and appellants violates testators express will to give this
property to them
47

-LC: approved partition

ISSUE

b. Vulgar substitutions are valid because dying before the testator is not
the only case where a vulgar substitution can be made. Also, according
to Art 859 CC, cases also include refusal or incapacity to accept
inheritance therefore it is VALID.

WON the partition is valid insofar as

a. widows legitime

b. substitutions

BUT fideicommissary substitutions are VOID because Juan Pablo

Jankowski and Horace Ramirez are not related to Wande and according
to Art 863 CC, it validates a fideicommissary substitution provided that
such substitution does not go beyond one degreefrom the heir originally
instituted. Another is that there is no absolute duty imposed on Wanda to
transmit the usufructuary to the substitutes and in fact the apellee agrees
that the testator contradicts the establishment of the fideicommissary
substitution when he permits the properties be subject to usufruct to be
sold upon mutual agreement ofthe usufructuaries and naked owners.

c. usufruct of Wanda
c. YES, usufruct of Wanda is VALID
HELD

a. YES, appellants do not question because Marcelle is the

widow[1]and over which he could impose no burden, encumbrance,
condition or substitution of any kind whatsoever[2]

-the proposed creation by the admininstratix in favor of the testators

widow of a usufruct over 1/3 of the free portion of the testators estate
cannot be made where it will run counter to the testators express will.
The Court erred for Marcelle who is entitled to of the estate enpleno
48
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 testators intention
for as stated above his disposition even impaired her legitime and tended
to favor Wanda.

SUCCESSION

-Art XIII[3]Sec 5 (1935): Save in cases of hereditary succession, no

private agricultural land shall be transferred or assigned except
toindividuals, corporations, or associations qualified to acquire or hold
land of the public domain in the Philippines.[4]

The lower court upheld the usufruct thinking that the Constitution covers
not only succession by operation of law but also testamentary
succession BUT SC is of the opinion that this provision does not apply to
testamentary succession for otherwise the prohibition will be for naught
and meaningless. Any alien would circumvent the prohibition by paying
money to a Philippine landowner in exchange for a devise of a piece of
land BUT an alienmay be bestowed USUFRUCTUARY RIGHTS over a
parcel of land in the Philippines. Therefore, the usufruct in favor of
Wanda, although a real right, is upheld because it does not vest title to
the land in the usufructuary (Wanda) and it is the vesting of title to land in
favor of aliens which is proscribed by the Constitution.

Decision: Marcelle (as legitime), Jorge and Roberto Ramirez (free

portion) in naked ownership and the usufruct to Wanda de Wrobleski with

49

SUCCESSION

simple substitution in favor of Juan Pablo Jankowski and Horace

Ramirez.