G.R. No.

L-11386 March 31, 1917

EMILIO NATIVIDAD, administrator of the estate of the deceased Tiburcio Salvador y Reyes, petitioner-
appellant,
vs.
BASILIA GABINO, respondent-appellee.

TORRES, J.:

This is an appeal, filed by the administrator of the estate of the decedent Tiburcio Salvador y Reyes, from the order
of August 21, 1915, by which the judge of the Court of First Instance of Manila, interpreting the true wishes of the
testator, expressed the opinion that the ownership and dominion of the property mentioned in clause 6 of the will
should be awarded to Basilia Gabino, subject to the reservation made in behalf of Lorenzo Salvador and Emilio
Natividad. Therefore the trial court ordered an amendment made to the fourth basis for the proposed partition of the
decedent's estate, presented by the testamentary executor, and, as soon as such be made, a day set for the
hearing and approval of the proposed amended partition.

The testator Salvador y Reyes contracted a valid and legal marriage with Anselma Nicasio, who died in 1868,
leaving a daughter named Higinia who married Clemente Natividad. Higinia Salvador died in 1913, survived by two
children Emilio and Purificacion, both surnamed Natividad y Salvador. Tiburcio Salvador disposed of all his property
in the manner recorded in the will executed in legal form on November 9, 1914, instituting as sole heirs his
grandchildren Emilio and Purificacion, both surnamed Natividad y Salvador. In the sixth clause of this will the
testator left to Basilia Gabino the legacy mentioned therein. Literally, this clause is as follows:

I bequeath to Doa Basilia Gabino the ownership and dominion of the urban property, consisting of a house
and lot situated on Calle Lavezares of the said district of San Nicolas and designated by No. 520, and in
addition eleven meters by two meters of the lot designated by No. 419, situated on Calle Madrid. This
portion shall be taken from that part of the lot which is adjacent to the rear of said property No. 520. If the
said legatee should die, Lorenzo Salvador shall be obliged to deliver this house, together with the lot on
which it stands, to my grandson Emilio Natividad, upon payment by the latter to the former of the sum of four
thousand pesos (P4,000), Philippine currency.

The executor of the estate of the decedent is the decedent's own heir, Emilio Natividad, who in due season and by
counsel presented to the court for its approval a proposed partition of the property pertaining to the estate, setting
forth in the fourth basis the following relative to the legacy made to Basilia Gabino:

Summarizing the statements made in respect to this matter, we are of the opinion that the sixth clause
expresses in itself a right of usufruct, in favor of Doa Basilia Gabino, of the house at No. 520 Calle
Lavezares, and a general legacy in favor of Lorenzo Salvador of the sum of P4,000 whenever Basilia should
die; but that the ownership of the property upon which this right and legacy are established belongs to the
heir Emilio Natividad who, by the express will of the testator, had been made liable for these encumbrances.

By a writing of August 5, 1915, counsel for the legatee Basilia Gabino opposed the approval of the proposed
partition with regard to the adjudication to the legatee of the usufruct only of the property at No. 520 Calle
Lavezares, claiming that said legatee ought to be recognized as entitled to the dominion and ownership of the same.
For this and the other reasons set forth, her counsel requested that the testamentary executor be ordered to amend
the fourth basis of the proposed partition in order that ownership and dominion, instead of usufruct only, of said
property be adjudicated to the objector-legatee, Basilia Gabino.

After proper legal steps had been taken and the written briefs of the parties and the schedule of the proposed
partition filed by the testamentary executor had been examined, the trial judge issued the order aforementioned.
Appeal was taken by counsel for the executor to this court, and a transcript of the record of the proceedings below
was forwarded to the clerk of this court.

The only question raised by this appeal and submitted to us for decision is: What construction must be given to the
above-quoted sixth clause of the will executed by Tiburcio Salvador?
A person is entirely free to make his will in such manner as may best please him, provided the testamentary
provisions conform to law and meet its requirements. He may impose conditions, either with respect to the institution
of heirs or to the designation of legatees, and, when the conditions imposed upon the former or the latter do not fall
within the provisions of those articles of the Civil Code touching heirs and legatees, they shall be governed by the
rules therein prescribed for conditional obligations, (Civ. Code, arts. 790 and 791.)

In the sixth clause of the will executed by the decedent Tiburcio Salvador y Reyes, he bequeathed to Basilia Gabino
the ownership and dominion of the property therein specified as to its location and other circumstances, on condition
that if the legatee should die Lorenzo Salvador would be obliged, upon the payment of P4,000 by the testator's
grandson and heir Emilio Natividad, to hand over this property to the latter.

The condition imposed by the testator in the double legacy mentioned depends upon the happening of the event
constituting the condition, to wit, the death of the legatee Basilia Gabino, a perfectly legal condition according to
article 1114 of the Civil code, as it is not impossible of performance and is not contrary to law or public morals, as
provided in article 1116 of said code.

The moment the legatee Gabino dies the other legatee, Lorenzo Salvador, is obliged to deliver the property to the
heir Emilio Natividad who, in his turn and in exchange, must pay the legatee Salvador the sum of P4,000, thereby
fulfilling the double legacy contained in the said sixth clause of the will, the first of these legacies being the voluntary
reservation to Basilia Gabino of the ownership of the said house, and the second, the conditional legacy of P4,000
to Lorenzo Salvador.

Making use of his right, the testator provided in his will that the dominion, that is, the ownership and possession of
his house situated on Calle Lavezares, No. 520 together with a part of the lot at No. 419, should be delivered as a
legacy, provided that if the legatee should die, this property instead of passing to the successor, would revert to the
testator's grandson and heir, provided that he in turn would pay to Lorenzo Salvador the sum of P4,000. It cannot be
understood that the legacy conveyed only the usufruct of the property because the plain and literal meaning of the
words employed by the testator in the said clause sixth clearly shows beyond all doubt the express wished of the
testator who, establishing a voluntary reservation of the ulterior and final disposition of the bequeathed property,
ordered that the legatee's right of dominion should end at her death, and that on this occurrence his wish was that
the ownership of the property should pass to Emilio Natividad, provided the latter in turn delivered said P4,000 to
Lorenzo Salvador who appears to be the son of the legatee Gabino.

If the provisions of article 675 of the Civil Code are to be complied with, it cannot be understood that the testator
meant to bequeath to Basilia Gabino the mere usufruct of the property, inasmuch as, by unmistakable language
employed in the said sixth clause, he bequeathed her the ownership or dominion of the said property language
which expresses without the slightest doubt his wishes which should be complied with literally, because it is
constant rule or jurisprudence that in matters of last wills and testaments the testator's will is the law.

It is true that the legatee could not make any disposal of the bequeathed real property to be effective after her death,
nor could the property be acquired from her by her heir through testate or intestate succession; but if we take into
account that the institution of donations and legacies depends on the full free will of the testator, and that if the
testator intended no more than that Basilia Gabino should enjoy the ownership of the property during her lifetime,
this testamentary provisions is not contrary to law or to public morals, inasmuch as the testator thereby intended that
the property should revert to its lawful heir, the latter being obliged to make a monetary compensation to Lorenzo
Salvador who appears to be the successor of the legatee Gabino.

For the foregoing reasons, considering that the order appealed from is in accordance with law and that the several
features of the sole assignment of error made thereto are without merit, the said order of August 21, 1915, must be
affirmed, with the costs against the appellant. So ordered.
US Bank of Portland v. Snodgrass
202 Or. 530 (1954)

275 P.2d 860

THE UNITED STATES BANK OF PORTLAND v. SNODGRASS AND JOHNSON ET AL.

Supreme Court of Oregon.

Argued March 10, 1954.

Affirmed November 3, 1954.

Petition for rehearing denied November 24, 1954.

*532 Alton John Bassett, of Portland, argued the cause and filed briefs for appellant.

Robert L. Myers and Paul A. Sayre, of Portland, argued the cause for defendants-respondents. On
the *533 briefs were DePass & DePass, of Spartanburg, South Carolina, and Winfree, McCulloch,
Shuler & Sayre, of Portland.

AFFIRMED.

WARNER, J.

The United State National Bank of Portland (Oregon) in its capacity as trustee under the last will and
testament of C.A. Rinehart, deceased, brings this suit against Merle Rinehart Snodgrass, the
decedent's married daughter and sole heir, and 17 other defendants who are relatives and contingent
beneficiaries of C.A. Rinehart. Plaintiff prays for a declaratory judgment establishing the validity and
correct interpretation of the trusts set up by the testament and the rights, if any, of the defendants as
beneficiaries thereunder.

On May 31, 1929, at a time when his daughter Merle was about 10 years old, Mr. Rinehart executed
the instrument now before us for construction. Paragraph 7 of his will provides:

"I give and bequeath to the United States National Bank of Portland (Oregon), but in trust
nevertheless, the sum of Fifteen Thousand ($15,000.00) Dollars, or one-half (1/2) of residue if sum is
more than Thirty-Thousand ($30,000.00) Dollars, to pay to my daughter Merle from the net income
derived therefrom the sum of fifty ($50.00) Dollars each month beginning with the date of my death
and until she attains the age of eighteen years, excluding, however, any period prior to the date of my
death; Seventy-Five ($75.00) Dollars each month to her from the time of attaining the age of eighteen
years and until she attains the age of twenty-five years; the whole of such net income to her from age
twenty-five years and until she attains the age of thirty-two years. When my said daughter shall have
attained the age of thirty-two years and *534 upon my death, that is to say, when these two events
occur, my trustee is authorized and directed to transfer, assign and/or pay over to my said daughter
Merle the whole of the trust fund of Fifteen Thousand ($15,000.00) Dollars, or the one-half (1/2) of the
entire estate if sum is more than Thirty Thousand ($30,000.00) Dollars, provided she shall have
proved conclusively to my trustee and to its entire satisfaction that she has not embraced, nor
become a member of, the Catholic faith nor ever married to a man of such faith. In the event my
daughter predeceases me, or having survived me dies prior to attaining the age of thirty-two years or
if living becomes ineligible to receive the trust fund then I direct the principal of such trust fund to be
divided as follows: In case either my wife or daughter forfeit their right to the trust fund, by death or
otherwise, I want one or both of said funds divided between the following parties share and share
alike. To my Mother Louise Rinehart, and my Sisters, Cordelia, Minnie and Mildred, and their
children, and the children of my deceased brother Howard Rinehart, and my sister-in-law Bertie
Rinehart, provided she shall not have married again all of Spartanburg, South Carolina."

The testator died in January 1942. It was stipulated that his daughter Merle became 32 years old on
May 18, 1951; that sometime in 1944 she married a man who was a member of the Catholic faith;
and that at the time she knew of the provisions of the foregoing paragraph 7 of her father's will.

The lower court concluded that the conditions of the bequest to the defendant Merle Rinehart
Snodgrass, declaring a forfeiture of her rights in the corpus of the trust if she married a Catholic
before her 32nd birthday, were valid and binding upon her and so decreed. The court then proceeded
to declare and determine the respective interests of the various defendants who *535 were contingent
beneficiaries, succeeding by reason of the forfeiture of Mrs. Snodgrass' gift in her father's estate.
From this decree the defendant daughter alone appeals.

The appellant asserts that the court erred in holding as valid that provision of the will which
disinherited her because of her marriage to a member of the Catholic faith before she was 32 years
old. She leans heavily upon the proposition that such a provision violates public policy.

Mrs. Snodgrass did not join the Catholic church and therefore the clause restraining membership in
that faith is not before us. Her loss, if any, accrues by reason of the restriction on her marriage to a
Catholic within the time limitation. If the provision is valid, then the defendants-respondents take the
entire corpus of the trust set up in the contested paragraph 7, and testator's daughter takes nothing.

The problem here is one of the validity of testamentary restraints upon marriage. While there is an
abundance of law on the subject from other jurisdictions, the question and its solution are one of first
impression in this court.

The briefs of both parties and some of their citations unavoidably employ various words and phrases
which bring into focus the presence of religious prejudice which apparently dictated the contents of
the paragraph occasioning this appeal. There we find, among other significant phrases, references to
"religious tolerance", "religious freedom" and the "bigotry reflected by the will". No one will venture to
gainsay that the father and his daughter in adulthood had entertained antipodal beliefs in the area of
religious thought and faith. Indeed, it was the militant hostility of the father to the religion of Mrs.
Snodgrass' husband *536 that kindled the flames of the controversy from which this appeal arises.

Litigation springing from religious differences, tincturing, as here, every part and parcel of this appeal,
tenders to any court problems of an extremely delicate nature. This very delicacy, together with the
novelty of the legal questions in this jurisdiction, warrants pausing before proceeding further and re-
orienting our thinking in terms of the real legal problem which we must resolve. As a first step we rid
ourselves of some erroneous definitions and the smug acceptance of conclusions arising from the
too-frequent and inept employment of such terms as "religious freedom", "religious intolerance" and
"religious bigotry". We also disassociate ourselves from the erstwhile disposition of many persons to
treat any opposition to a religious faith as a prima facie manifestation of religious bigotry, requiring
legal condemnation.

The testamentary pattern of Mr. Rinehart may offend the sense of fair play of some in what appears
as an ungracious and determined effort to bend the will of another to an acceptance of the testator's
concept of the superiority of his own viewpoint.

1. In terms of common parlance, "bigotry" and its concomitant "intolerance" are ordinarily odious and
socially distasteful. They usually connote some intrusion upon or a variance with our traditional
thoughts on religious liberty and religious tolerance; but we find nothing in the law declaring religious
bigotry or intolerance to be mala in se. It is not until actions motivated by the intolerant extremes of
bigotry contravene the positive law or invade the boundaries of established public policy that the law
is quickened to repress such illegal excesses and in proper cases levy toll upon the offenders as
reparation to those who *537 have been damaged thereby. It is the quality of the act or expression of
the bigot not one's bigotry which determines the necessity, if any, for legal interposition.

The appellation "bigot" is therefore a word of social opprobrium, not one of legal condemnation. It can
be, and often is, applied with equal force and propriety both to the proponents and opponents of a
given thesis of public or religous interest, depending on the degree of their respective
uncompromising and dogmatic assertions in the espousal of their several divergent views.

2. While one may personally and loudly condemn a species of "intolerance" as socially outrageous, a
court on the other hand must guard against being judicially intolerant of such an "intolerance", unless
the court can say the act of intolerance is in a form not sanctioned by the law. We are mindful that
there are many places where a bigot may safely express himself and manifest his intolerance of the
viewpoint of others without fear of legal restraint or punishment. With certain limitations, one of those
areas with a wide latitude of sufferance is found in the construction of the pattern of one's last will and
testament. It is a field wherein neither this court nor any other court will question the correctness of a
testator's religious views or prejudices. In re Lesser's Estate, 287 NYS 209, 216, 158 Misc 895.

Our exalted religious freedom is buttressed by another freedom of coordinate importance. In

condemning what may appear to one as words of offensive religious intolerance, we must not forget
that the offending expression may enjoy the protection of another public policy the freedom of
speech.

3. The right to espouse any religious faith or any *538 political cause short of one dedicated to the
overthrow of the government by force carries with it the cognate right to engage as its champion in
the proselytization of followers or converts to the favored cause or faith. To that end its disciples are
free to emphasize and teach what is believed by them to be its superior and self-evident truths and to
point out and warn others against what its votaries deem to be the inferior, fallacious or dangerous
philosophical content of opposing faiths or doctrines. No matter how specious, how intolerant, how
narrow and no matter how prejudiced or how dogmatic the arguments of the devotees of one belief
may appear to others of different persuasion, the right of either to so express himself is so
emphatically a part and parcel of our public policy that it will be defended and protected by the courts
of the land to the uttermost, unless it is found that the fanatical and unrestrained enthusiasm of its
followers results in acts offensive to the positive law.

It is this unique right to freedom of expression, whether manifested in the political forum, the church
chancel or other arenas of thought and action, that has not only contributed so much to the greatness
of our country and has given it such a distinctive and distinguished place in the world family of nations
but has given additional vitality and substance to our valued religious freedom.

If we will take heed of these things, we can better appreciate and more readily understand why the
great majority of the courts have sustained rather than repudiated gifts limited by conditions such as
Mr. Rinehart attached to his bequest to his daughter.

We therefore have no intention or disposition to disturb the provisions of Mr. Rinehart's will unless it
can be demonstrated that they do violence to some legal *539 rule or precept. Two general and
cardinal propositions give direction and limitation to our consideration. One is the traditionally great
freedom that the law confers on the individual with respect to the disposition of his property, both
before and after death. The other is that greater freedom, the freedom of opinion and right to
expression in political and religious matters, together with the incidental and corollary right to
implement the attainment of the ultimate and favored objectives of the religious teaching and social or
political philosophy to which an individual subscribes. We do not intend to imply hereby that the right
to devise or bequeath property is in any way dependent upon or related to the constitutional
guarantees of freedom of speech.
4, 5. We will first give attention to appellant's claim that the provision for Mrs. Snodgrass is at odds
with the public policy of both the state and national governments. We preface this phase of our inquiry
with the following statement from 57 Am Jur 1017, Wills, 1503, approving it and adopting it as a
guide in the evaluation of the respective contentions of the parties to this appeal:

"The right of a testator to attach to a gift in his will any lawful terms he sees fit, no matter how
whimsical or capricious, is widely, if not universally, recognized. Conditions which are regarded as
contrary to law or public policy, which are impossible of performance, or which are too vague and
uncertain in their phraseology to disclose the actual intention of the testator, will not, however, be
enforced, although it is established that in considering any testamentary condition the court must
indulge a presumption in favor of its validity. When questions arise as to conditions or provisions
being void as being against the public good or against public policy, great caution is necessary in
considering *540 them; at different times very different views have been entertained as to what is
injurious to the public."

As we shall soon discover, there is nothing in our organic or statutory law or in prior decisions of this
court which would strike down or limit a testamentary expression in the form that Mr. Rinehart elected
to use in providing for his daughter.

6, 7. Although the appellant rests her appeal primarily upon the premise that paragraph 7 of the will
violates public policy, she brings to us no precise statute or judicial pronouncement in support of this
contention; but before examining and demonstrating that the authorities cited by appellant are
inapplicable, we think it is proper to observe here that it has long been a firmly-established policy in
Oregon to give great latitude to a testator in the final disposition of his estate, notwithstanding that the
right to make a testamentary disposition is not an inherent, natural or constitutional right but is purely
a creation of statute and within legislative control. Leet v. Barr et al., 104 Or 32, 39, 202 P 414, 206 P
548. This is supported by both statutory and judicial expression and points the way as an over-all
direction to our own inquiry here.

As early as 1853 our legislature conferred upon every person of qualified age and sound mind the
right to devise and bequeath all his estate, real and personal, saving such as is specially reserved by
law to the decedent's spouse. ORS 114.020. This generous latitude in testamentary disposition
conferred by statute is emphasized and expanded in the often-repeated statement of Mr. Justice
WOLVERTON in Holman's Will (1902) 42 Or 345, 356, 70 P 908:

"The right of one's absolute domination over his property is sacred and inviolable, so that he may
*541 do what he will with his own, if it is not to the injury of another. He may bestow it whithersoever
he will and upon whomsoever he pleases, and this without regard to natural or legitimate claims upon
his bounty; and if there exists no defect of donative capacity, whereby his individual will or judgment
does not have intelligent and conscious play in the bestowal, or undue influence or fraud, whereby an
unconscionable advantage may be taken of him through the wicked designs of another, the law will
give effect to the disposition; and the right to dispose of one's property by will, and bestow it upon
whomsoever he likes, is a most valuable incident to ownership, and does not depend upon its
judicious use * * *. And this court has held, in effect, that `while it seems harsh and cruel that a parent
should disinherit one of his children and devise his property to others, or cut them all off and devise it
to strangers, from some unworthy motive, yet so long as that motive, whether from pride or aversion
or spite or prejudice, is not resolvable into mental perversion, no court can interfere' * * *." (Italics
ours.)

Also see In re Estate of Verd Hill, 198 Or 307, 317, 256 P 735, and cases cited, where it is said that
our previous holdings teach us that a "testator is invested by law with substantially all the rights he
enjoyed in life to make unfettered disposition of his property".

No one has had the temerity to suggest that Mr. Rinehart in his lifetime could not have accomplished
the equivalent of what he sought to accomplish by his will. It was within his power, with or without
assigning any reason therefor, to have completely disinherited his daughter and left her in a state of
impecunious circumstances. He could have gone even further and given all his fortune to some
institution or persons with directions to propagandize his views adverse to *542 any certain religion or
creed for which he harbored antipathies.

In Magee v. O'Neill, 19 SC 170, 45 Am Rep 765, the bequest was on the condition that the
beneficiary granddaughter be educated in the Roman Catholic faith. There the court said (45 Am Rep
776):

"The power of disposition is general. The power to give includes the right to withhold or to fix the
terms of gift, no matter how whimsical or capricious they may be, only provided they do not in any
way violate the law. Mr. Magee, in his life-time, could have given money to educate his
granddaughter at a particular school, or he could have withheld it at his pleasure. Suppose he had
entered into a covenant with Elizabeth or her mother, that if she was educated at a particular school
named and under certain religious influences, he would, upon her attaining twenty-one years, pay to
her five thousand dollars, we suppose that if she were not so educated, she could not go into the
court and recover the money. Suppose, further, that before the time for payment arrived John Magee
had died, would that strengthen her claim to recover the money against her [his] personal
representatives? We are unable to see any material difference in regard to the necessity of complying
with the terms imposed, between this supposed case and that of a voluntary gift by will."

While neither ORS 114.020 nor the Holman case affords a complete answer to the contentions of the
plaintiff here, yet we submit that taken together they reveal a long-accepted pattern of public attitude
and public policy in this state respecting an almost unrestricted right to dispose of one's property on
death. In view of this liberality of testamentary power, we find no occasion to narrow the freedom of a
testator's right to dispose of his accumulations unless we are *543 compelled to bend before some
other public law or policy establishing limitations not presently apparent.
To sustain the contention that the contested provision of the will is against the public policy of the
United States, appellant depends upon the First and Fourteenth Amendments to the United States
Constitution; 42 USCA 1981-1983, relating to civil rights (formerly, and as cited by appellant, 8
USCA, Ch 3, 41-43); and Shelley v. Kraemer, 334 US 1, 92 L ed 1161, 68 S Ct 836, 3 ALR2d 441.

8, 9. The First Amendment prohibits Congress from making any law respecting the establishment of a
religion. Everson v. Board of Education, 330 US 1, 15, 91 L ed 711, 67 S Ct 504, 168 ALR 1392. That
amendment is a limitation upon the power of Congress. It has no effect upon the transactions of
individual citizens and has been so interpreted. McIntire v. Wm. Penn Broadcasting Co. of
Philadelphia, 151 F2d 597, 601, cert den 327 US 779, 90 L ed 1007, 66 S Ct 530; In re Kempf's Will,
297 NYS 307, 312, 252 App Div 28, aff 278 NY 613, 16 NE2d 123. Neither does the Fourteenth
Amendment relate to individual conduct. The strictures there found circumscribe state action in the
particulars mentioned and in no way bear on a transaction of the character now before us. Civil
Rights Cases (1883) 109 US 3, 27 L ed 835, 3 S Ct 18.

Appellant presses upon our attention 42 USCA 1983 as embodying a statement of federal public
policy controlling here. It reads:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities *544 secured
by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress."

10. The inapplicability of this argument is demonstrated by Robeson v. Fanelli, 94 F Supp 62. That
litigation was a by-product of the so-called "Peekskill riots" of 1949 and brought under the provisions
of 1983 of Title 42, USCA, then 43 of Title 8, USCA. The court in the Robeson case said, at page
66:

"In general, civil liberties are beyond the constitutional power of Congress to protect from
encroachment by individuals unassociated with state action, inasmuch as the prohibitions of the
Fourteenth Amendment with regard to due process, and equal protection are directed against the
states exclusively. * * *"

Shelley v. Kraemer, supra, is authority only for the proposition that the enforcement by state courts of
a covenant in a deed restricting the use and occupancy of real property to persons of the Caucasian
race falls within the purview of the Fourteenth Amendment as a violation of the equal protection
clause, but, said the court, "That Amendment [Fourteenth] erects no shield against merely private
conduct, however discriminatory or wrongful." (3 ALR2d 460)

Failing to find in appellant's citations any foundation for a federal public policy which will give her
comfort or aid, we now turn to examine the authorities which she marshals in support of her claim of a
public policy in Oregon which would compel us to strike the testamentary provision mandating a
forfeiture of her share in the corpus of the trust created by her father. To this end she cites and relies
upon Or Const, Art I, and Oregon Laws 1949, Ch 221.

*545 Section 2 and 3 of Art I read:

"Section 2. * * * All men shall be secure in the Natural right, to worship Almighty God according to the
dictates of their own consciences. "Section 3. * * * No law shall in any case whatever control the free
exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience. "

11. The functions of these sections of Art I are akin to the objectives of the First Amendment, that is,
positive bars to legislative action which might impair the full and free enjoyment of the religious
liberties thus conferred; and, also like the First Amendment, they are retraints upon the government in
dealing with its citizens and have no bearing on individual actions or transactions.

The appellant argues that the public policy of this state relative to matters of the kind now before us
will also be found in Oregon Laws 1949, Ch 221 (now codified as ORS 659.020 to 659.140) and that
law has the force and effect of invalidating restraints of the character imposed by paragraph 7 of the
Rinehart will. Chapter 221 is entitled: "Relating to and providing for the elimination of certain practices
of discrimination because of race, color, or religion or national origin". Section 1 declares the public
policy of Oregon is "that practices of discrimination against any of its inhabitants because of race,
religion, color or national origin are a matter of state concern * * *." Section 2 empowers the bureau of
labor "to eliminate and prevent discrimination in employment because of race, religion, color or
national origin". Section 3 provides: "The opportunity to obtain employment without discrimination
because of race, religion, color or national origin hereby is recognized as and declared to be a *546
civil right." Section 4 defines "person", "employment agency", "labor organization", "unlawful
employment practice", "employer", "employe", "bureau", "commissioner" and "national origin". Section
5 declares what shall be regarded as "an unlawful employment practice". Thereafter are five
subdivisions addressed to a labor organization; an employer; employer or employment agency;
employer, labor organization or employment agency; and any person whether employer or employe.
Section 6 provides for complaints by one claiming to be aggrieved by "an alleged unlawful
employment practice". The statute thereafter addresses itself to the hearing of such claims and is
replete with indications that the relationship of employer and employe and practices of discrimination
because of race, color, religion or national origin were intended to be regulated by the legislative
assembly. (Italics ours.)

12. It is clear to us that the act when read in its entirety evidences a legislative purpose to prevent
certain contractual discriminations in the areas of employment predicated upon prejudices and
preferences arising out of race, religion, color or national origin. We are confident that the legislature
by the act of 1949 did not entertain the slightest intention to establish a public policy as to
relationships other than the status of employer and employe or make it applicable to testamentary
dispositions.

13. It is not clear to us from appellant's argument whether she reads the offending provision of the will
as an invasion of her constitutional right to religious freedom or views it as an unconstitutional act of
discrimination; but whether one or the other, we are content that it does no violence to public policy
arising from either category. If the contested portion is to *547 fall, it must be by force of some
precept of public policy resting upon different grounds from those here urged by appellant.

We are not unmindful that even though no positive law can be found in Oregon limiting a testator as
appellant would have us do here, we should, nevertheless, look into the decisions of the courts of
other states to discover, if we can, the prevailing rule applied elsewhere when a testator attempts to
limit or restrain the marriage of a beneficiary in the manner that the late C.A. Rinehart attempted to
do.

14. The general rule seems to be well settled that conditions and limitations in partial restraint of
marriage will be upheld if they do not unreasonably restrict the freedom of the beneficiary's choice. In
35 Am Jur 357-358, Marriage, 256, we find:

"* * * where the restraint is not general, but is merely partial or temporary, or otherwise limited in
effect, then the condition may or may not be void, according to whether it is considered reasonable or
otherwise, and does not operate merely in terrorem. * * * "* * * * * "Among the restrictions which have
been held reasonable are: Conditions to marry or not to marry * * * a person of a particular * * *
religion * * *."

Of the same tenor is 1 Restatement, Trusts, 194, 62(g), reading, so far as pertinent:

"* * * such a provision is not invalid if it does not impose an undue restraint on marriage. Thus, a
provision divesting the interest of the beneficiary if he or she should marry * * * a person of a
particular religious faith or one of a different faith from that of the beneficiary, is not ordinarily invalid. *
* *"

*548 15. We turn to an examination of the controverted provision and note that the condition is not
one of complete restraint, in which character it might well be abhorrent to the law. It is merely partial
and temporary and, as we shall show later, is not in terrorem. Mr. Rinehart's daughter is not thereby
restrained from ever marrying a Catholic. This inhibition as a condition to taking under the will at the
age of 32 lasts only 11 years, that is, from the legal marriageable age without parental consent (in this
state, 21 years). After the age of 32 she is free to marry a Catholic or become a Catholic if she so
pleases and have her estate, too. Moreover, the condition imposed does not restrict the beneficiary
from enjoying marital status either before or after attaining the age of 32. Here, unfortunately,
appellant would eat her cake and have it, too.
16. In 25 ALR 1523 will be found an ably-edited annotation respecting wills with gifts conditioned that
the beneficiary renounce, embrace or adhere to a specified religious faith. At page 1524 the editor
makes this statement: "The weight of authority, however, is to the effect that a testator has the right to
make the enjoyment of his bounty dependent on the condition that the recipient renounce, embrace,
or adhere to a particular religious faith." The following illustrative cases are cited: Barnum v. Baltimore
(1884) 62 Md 275, 50 Am Rep 219; Mitchell v. Mitchell (1862) 18 Md 405; Kenyon v. See (1884) 94
NY 563, 29 Hun 212; Magee v. O'Neill, supra (1883) 19 SC 170, 45 Am Rep 765; Re Paulson (1906)
127 Wis 612, 107 NW 484, 5 LRA NS 804, 7 Ann Cas 652; Renaud v. Lamothe (1902) 22 Can L T
Occ N 357, 32 Can SC 357; Hodgson v. Halford (1879) LR 11 Ch Div (Eng) 959, 40 LJ Ch NS 548,
27 Week Rep 545; Clavering v. Ellison (1859) 7 HL Cas 707, 11 Eng Reprint 282, 29 LJ Ch NS 761;
*549 Re Trust Funds (1850) 1 Sim NS 37, 61 Eng Reprint 14, 20 LJ Ch NS 33, 15 Jur 282; Re Knox
(1889) 23 LR Ir 542; Maguire v. Boylan (1871) Ir R 5 Eq 90; Haughton v. Haughton (1824) 1 Molloy
(Ir) 611; Laurence v. McQuarrie (1894) 26 NS 164. To this list we add three more recent cases:
Delaware Trust Co. v. Fitzmaurice (1943) Del, 31 A2d 383; In re Kempf's Will, supra (1937) 297 NYS
307; In re Lesser's Estate, supra (1936) 287 NYS 209. Only three cases to the contrary are found in
the annotation and are the only ones employed by the appellant in support of a contrary rule.

Mrs. Snodgrass forthrightly concedes that the numerical weight of authority is against her position,
and we add that our own examination of the several cases cited in 25 ALR and by us above give
sound support and reason to the general rule therein stated and affirmed by 35 Am Jur 357,
Marriage, 256, and 1 Restatement, Trusts, 194, 62(g). They are written with due respect to the
same principles approving liberality in the making of testamentary disposition which underlie our more
familiar ORS 114.020 and Mr. Justice WOLVERTON'S opinion in Holman's Will, supra, 42 Or 345.

We shall not burden this opinion with an analysis of the cases cited in 25 ALR but because of their
relative recency in the field of the law in which we are presently interested and because they give
such complete answer to the arguments here advanced by appellant and others who strive for a
departure from the general and prevailing rule as gleaned from the weight of authority, we attach
much weight to Delaware Trust Co. v. Fitzmaurice, supra, and the two New York cases to which we
now refer.

In the case of In re Lesser's Estate, supra, the provision *550 of the will construed created a trust for
the following purposes (287 NYS 211-212):

"`To pay said sums to the children, that may survive me, of my son Max Lesser, on their respective
twenty-first birthdays, provided these children are given a normal Jewish, liberal education including
an ability to read Hebrew, up to and including at least their fourteenth year: and, further, provided that
the Jewish dietary laws are observed by their parents up to and including the confirmation of these
my present grandchildren * * *. If these conditions are not complied with to the complete satisfaction
of my executor or his successor or successors, then the funds herein bequeathed are to go to the
"Federation for the Support of Jewish Philanthropic Societies of New York City" * * *.'"

The objections there raised were disposed of by the court in these words (287 NYS 216):

"Conditions involving the personal habits and traits of character of a potential recipient of a testator's
bounty have frequently been sustained. * * * [Citing cases] The conditions here postulated respecting
maintenance of the Jewish faith are analogous. The testator has in effect stipulated that to participate
in his bounty, his grandchildren must live in the Orthodox Jewish manner which he may have deemed
essential for their eternal salvation. It is not for this or any other court or person to question the
correctness of his views or prejudices. His evident object was to see to it that the recipients of his
bounty adhered at least to the outward manifestations of the religious faith in which he believed.
Since they are all infants of tender years, it was obvious that the only method by which their desired
faith could be assuerd would be through the co-operation of their parents. All of the conditions in this
regard were conducive to this end and were, indeed, the only conceivable means of attaining it. There
is nothing any more contrary to our policy in the requirement of a testator *551 that his beneficiary
should espouse and be trained in a certain religious faith, than in a stipulation that he shall marry one
of a certain belief, which has been sustained. Matter of Seaman's Will, 218 N.Y. 77, 81, 112 N.E. 576,
L.R.A. 1917A, 40, Ann. Cas. 1918B, 1138."

In In re Kempf's Will, supra, 297 NYS 307, the testator made substantial gifts to his grandchildren
payable when they became 21 years of age but made upon the condition that said children "`shall be
brought up and educated in the faith of and according to the Roman Catholic Religion'", otherwise the
provision to be void. In respose to the argument seeking to invalidate the condition, the court says, at
page 312:

"It is said that the condition violates the provisions of the Federal Constitution (First Amendment) and
the State Constitution (article 1, 3) which guarantee religious freedom. With this argument we do
not agree. The purpose of the constitutional provisions which petitioner invokes was to protect all
denominations by prohibiting the establishment under state sanction of any single form of religion
which would deprive nonadherents to a church thus established of the right to worship according to
the dictates of their own conscience. These constitutional guarantees of religious freedom are
limitations upon the power of government, not upon the right of an individual to make such
testamentary disposition of his property as he may desire provided always that positive law or public
policy is not contravened. We find nothing in the condition here in question which deprives the
petitioner of freedom of conscience as to his religion; nor is it against public policy. Such an
inducement by the testator, if it be so considered, to further the interests of his chosen religion and to
perpetuate it within the circle of his family, can hardly be said to be a denial of religious freedom to
those affected thereby. True it is that terms were annexed to the *552 bequest which some might
have found onerous, but they could have been declined from motives of conscience or for any other
reason. If the petitioner could not in conscience accept the faith of his grandfather, knowing its
demands, he could have renounced the legacy thus conditioned. Having chosen to make the
petitioner an object of his bounty, the testator had the right to burden his gift with conditions. If those
conditions are legal the petitioner cannot disregard the burden and successfully demand the bounty."

In Delaware Trust Co. v. Fitzmaurice, supra, we find a will wherein the receipt of income from a
testamentary trust created by decedent was made payable to Ruth M. Ogle "`so long as she lives up
to and observes and follows the teachings and faith of the Roman Catholic Church, and no longer'".
Here the court in upholding the provision follows and cites all the cases relied upon in the annotation
above referred to from 25 ALR 1524, and meets the contention of the beneficiary Ogle as follows (31
A2d 389):

"Ruth M. Ogle contends that such a condition, attached to a material gift, tends to induce fraud and
hypocrisy, and tends to replace the real religious beliefs of a legatee by a mere pretended belief in
other doctrines, with which she may have no real sympathy, and is, therefore, contrary to the moral
wellbeing of the State, and an invalid restriction on her rights. Maddox v. Maddox's Adm'r, 11 Grat.,
Va., 804; 2 Page on Wills, 2nd Ed., 1920. Few courts have adopted that broad contention; Drace v.
Klinedinst, 275 Pa. 266, 118 A 907, 25 A.L.R. 1520, involved different principles. The law, relating to
conditions in absolute restraint of marriage, is not applicable. In re Trust Funds, supra. Moreover,
neither Section 1 of Article 1 of the State Constitution, nor any provision of the Federal Constitution
affects this conclusion. Religious freedom is guaranteed to all citizens, and any legislation affecting
that *553 right is prohibited; but the mere inducement to adopt or to adhere to a particular religious
belief is not a denial of religious freedom. Magee v. O'Neill, In re Kempf's Will, In re Paulson's Will,
supra; 12 C.J. 945; 16 C.J.S., Constitutional Law, 206. The constitutional guarantees are limitations
on the powers of the government, not on the rights of the governed."

The court held that Ruth M. Ogle was not entitled to the gift in question.

It will be observed that the condition of restraint imposed by the will construed in Delaware Trust Co.
v. Fitzmaurice, supra, above quoted and in that case declared valid, is far more inclusive than the one
in the will now before us in that the condition was operative during the entire life of the donee. In the
instant matter, the restraint on free choice of religion became inoperative after the legatee became 32
years old.

So far as we are able to ascertain, only two states Pennsylvania and Virginia have invalidated
testamentary provisions committing the beneficiary to adhere to the doctrines of a particular religion.
This departure from the majority rule is reflected by Drace et al. v. Klinedinst (1922) 275 Pa 266, 118
A 907, 25 ALR 1520; and Maddox v. Maddox (1854) Va, 11 Grat 804.

The appellant can garner no comfort from the Pennsylvania case wherein the testamentary provision
is declared invalid on the basis of an entirely different theory from the one here present. It rests upon
a state of facts wholly unlike those apparent in the instant matter. In the Maddox case the condition
was that the testator's daughter should marry a member of the Society of Friends. There were only
five or six marriageable males of that faith within the circle of her acquaintances, *554 and under the
circumstances peculiar to that case the court held that the condition was an unreasonable restraint on
marriage.

The last contention of Mrs. Snodgrass requiring consideration is that the offending provision is in
terrorem and therefore invalid.

The phrase "in terrorem" is not new to the law of wills, although infrequently applied. It has been
defined as "In terror, or warning; by way of threat. The term is applied to gifts or legacies given on
conditions subsequent, because it is said that the possibility of losing the gift tends to inspire fear or
dread." 42 CJS 491. It is a rule designed to test the validity of gifts with certain conditions subsequent.

17. Generally, conditions in restraint of marriage are said to be in terrorem and therefore invalid when
the subject of the gift is personal property and there is no gift over; but such a condition is not void as
being in terrorem when there is a gift over. It is the absence of a gift over which supplies the quality of
a coercive threat necessary to bring the condition under the in terrorem rule. 35 Am Jur 367,
Marriage, 266. It is also said in 35 Am Jur, supra, 369, 267:

"It is a general rule that in order to take a condition out of the category of conditions in terrorem, the
gift over must be both express and immediate, to take effect at the time of the marriage. It must be to
a definite person a gift over to the `legal heirs' of the first taker is insufficient. * * *"

"The condition where there is no devise over, is said to be in terrorem merely, a convenient phrase
adopted by judges to stand in place of a reason for refusing to give effect to a valid condition." Hogan
v. Curtin, 88 NY 162, 171, 42 Am Rep 244. We are impressed with the truth of that sapient
observation, revealing as it *555 does the tenuous foundation for this seldom-used rule of
construction. We also find it an affront to intelligence and a strain upon imagination to be asked to
assume that if there is no gift over, then it is a matter of natural expectation that a named beneficiary
will be terrified into an acceptance of the conditions attached to the gift, knowing that if he does not,
the testator's gift may go to parties unknown.

18. Because of its irrational quality and its indefensible character as a "convenient phrase * * * to
stand in place of a reason", we cannot recognize it as having any proper place in our jurisprudence
and therefore decline to apply it as a medium for testing the validity of the seventh paragraph of Mr.
Rinehart's will.

Before coming to the foregoing conclusion, we made inquiry to discover to what extent, if any, this
court had employed the term as a test of validity to a condition in restraint. Our research produced but
one instance, Wadsworth v. Brigham et al. (1928) 125 Or 428, 259 P 299, 266 P 875. In that case the
court struck down a provision in a will which cast upon one claiming to be a legal heir of the testator
the duty to legally establish such claim and thereafter be limited to a gift of $5. The operation of this
provision as worded put upon plaintiff who claimed to be the daughter and sole heir of the testator the
heavy duty of proving her legitimacy. The provision was held to be invalid as to the plaintiff appellant
for the reason that she as a child of the testator had not been named or provided for as required by
ORS 114.250 (then OL 10101). After so holding the court concluded with this dictum (125 Or 455):
"Furthermore, this provision being in terrorem, it is void." With this state of the record it is difficult to
conclude that we are departing from an *556 established rule of this court when we express our
disinclination to apply it here or in the future.

The appellant here is in a rather anomalous position when she attempts to invoke the rule of "terror",
for her very act in marrying a Catholic before becoming 32 attests its innocuous effect as an
inspiration to fear so far as the full exercise of her own judgment was concerned.

We conclude with a statement from Magee v. O'Neill, supra, 19 SC 170, 45 Am Rep 765, 776-777,
substituting the name of the beneficiary here for the one named in the Magee will:

"We cannot say that the terms of this will so far exceed the license which is allowed the citizen in the
disposition of his own property, as to render it void as against public policy. We do not understand
that there was anything in this bequest which can be properly called coercion, or that [Merle Rinehart
Snodgrass] was `deprived' of the liberty of conscience. Terms were attached to the bequest which
may seem to us exacting, unkind and unnecessary, but we cannot say they were unlawful or that they
were complied with. If they were declined from conscientious motives, far be it from us to say that
such conduct was wrong; but from our view of the law, we are constrained to hold that the legacy * * *
must go to those to whom, in the event which has happened, it was given by the will."

Affirmed. Neither party will recover costs.

G.R. No. 113725 June 29, 2000

JOHNNY S. RABADILLA,1 petitioner,

vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.

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.

The antecedent facts are as follows:

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 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:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva,
Pasay City:

(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.

FIFTH

(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

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:

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.

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 defendant-heirs 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 1987-88, 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 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before
December of crop year 1991-92."5

However, there was no compliance with the aforesaid Memorandum of 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:

"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 plaintiff-appellant'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 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 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 decedent10 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 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 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-in-interest 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.

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

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 non-
performance 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.
G.R. No. L-17742 December 17, 1966

TESTATE ESTATE OF THE LATE DON VICENTE NOBLE. JUAN NOBLE, petitioner-appellee,
vs.
MARIA S. NOBLE, oppositor-appellant.

BARRERA, J.:

This is an appeal by Maria S. Noble from an order of the Court of First Instance of Batangas (in Sp. Proc. No. 343),
dismissing her opposition to the probate of the purported last will of the late Don Vicente Noble, who died on April
25, 1959.

The proceedings for the probate of the last will of the deceased was instituted by Juan Noble who was named
executor therein and who had expressed willingness to assume the trust. This was opposed by Maria S. Noble, who
claimed to be an illegitimate (spurious) child of the deceased, born on July 22, 1923 out of an illicit relation between
the latter and Lucia Sinag. It was alleged that the will sought to be probated, dated August 25, 1957, was not the last
will and testament of the late Don Vicente Noble; that from all indications as shown by a perusal of the alleged last
will of the deceased, the same was not executed in accordance with the law, and that the said will was executed
through undue influence, mistake and improper pressure on the part of one or some of the beneficiaries, and that
petitioner Juan Noble, as then incumbent Assistant General Manager of the NAMARCO, a government corporation
could not properly execute the trust of his office in the estate of the deceased, which consists of real and personal
properties located in several provinces. Furthermore, oppositor contended that petitioner has an adverse interest
against those immediately interested in the estate, like her. Thus, she prayed that the purported last Will and
Testament presented to the court be disallowed; that she be declared the only surviving illegitimate daughter of the
deceased; and in case the will sought to be probated be allowed, the institution of heirs made therein be declared
null and void; the devises and legacies be declared ineffective for being inofficious; and oppositor be declared
entitled to one-half of the entire hereditary estate of the deceased; that instead of petitioner, letters of administration
be issued in favor of Mrs. Corazon Apacible de Caiza of Taal, Batangas. Simultaneously, she filed a motion asking
for permission to present evidence of her alleged filiation with the deceased. This motion was opposed by petitioner
Juan Noble, on the ground that the claim was in effect an action for compulsory recognition, and since it was
brought after the death of the putative father and when claimant was already of majority age, the right to bring the
same has already prescribed pursuant to Article 285 of the new Civil Code.1 This motion was not immediately
resolved. Instead, the court proceeded with the reception of the evidence for the petitioner, during which proceeding,
the oppositor was allowed to cross-examine the petitioner's witnesses.

Finding, on the basis of the evidence presented by the petitioner, that the document, Exhibit "D", and its copies,
Exhibits "D-1" to "D-12", constitute the last will and testament of the deceased Vicente Noble, and it was executed
with all the formal requirements of the law, the aforesaid will was admitted to probate, and Juan Noble was
appointed administrator of the estate upon a bond of P30,000.00. It was also ruled that the petition of Maria S.
Noble to present proof for the purpose of establishing her filiation, filed after the death of the presumed father, had
been barred by prescription. Consequently, the motion to dismiss the petition of Maria S. Noble was granted.
Oppositor appealed.

The main issue presented in this case requiring resolution by this Court is: what is necessary to be established by
an illegitimate not natural child in order that he may be entitled to successional rights under Article 887 of the new
Civil Code, the fact of his bare filiation, or a filiation acknowledged by the putative parent?

While the Civil Code merely provides that "in all cases of illegitimate children, their filiation must be duly proved"
(Art. 887), there are cogent reasons, both legal and moral, which require that such filiation must be acknowledged
by the presumed parent. For, if the mere fact of the paternity of the supposed father is all that need be proved, that
construction of the law would pave the way to unscrupulous individuals taking advantage of the death of the
presumed parent who would no longer be in a position to deny the allegations, to present even fictitious claims and
expose the life of the deceased to inquiries affecting his character.

But more important than this, the law could not have demanded anything less than proof of an acknowledged
filiation. Precisely, under Article 289 of the new Civil Code, the investigation of the paternity or maternity of children
mentioned in the two preceding articles (referring to illegitimate not natural children) is specifically permitted only in
the circumstances enumerated in Articles 283 and 284 of the same code. It must be noted that these two articles
refer to compulsory recognition or acknowledgment. Hence, since the proof of filiation required in Article 887,
necessarily involves the investigation mentioned in Article 289, and this investigation in turn refers to recognition by
the putative parent, it follows that the filiation to be proven must be one that is recognized.

In the present case, what is intended to be proved by appellant is simply the supposed naked paternity of the
deceased. This is evident from the pertinent allegations of her opposition to the probate of the will, which state:

2. That the oppositor is in continuous possession of status of a child of the late Don Vicente Noble by the
direct acts of the latter and/or his family; and, that the oppositor has in her favor evidence and/or proof that
the late Don Vicente Noble is her father.

It may be pointed out that the first sentence does not state that the supposed father had recognized or
acknowledged the oppositor as his child. It is merely claimed that she was in continuous possession of the status of
a child, an allegation which is a ground for compelling recognition under Article 283 of the new Civil Code and,
therefore, presupposes no previous recognition. The last sentence alleges that oppositor has in her favor evidence
and/or proof that the late Don Vicente Noble is her father. Again, there is no assertion that she has evidence that the
deceased had recognized or acknowledged her as such a child.

In a unanimous decision, in the case of Paulino v. Paulino (G.R. No. L-15091, Dec. 28, 1961), this Court held:

It is true that by their motion to dismiss the appellees are deemed to have admitted that the appellant is the
illegitimate spurious, not natural, child of the deceased Marcos Paulino. Such an admission, however, does
not entitle her to inherit from her alleged putative father. It is necessary to allege that her putative father had
acknowledged and recognized her as such. Such acknowledgment is essential and is the basis of her right
to inherit. There being no allegation of such acknowledgment the action becomes one to compel recognition
which can not be brought after the death of the putative father. (Emphasis supplied.)

This is authority to the declaration that acknowledgment is the basis of the right of a spurious child to enjoy the
successional rights mentioned in Articles 287 and 887 of the new Civil Code. There being no allegation of her
recognition or acknowledgment by the alleged father in the petition to establish her filiation, the same, therefore,
states no cause of action and the dismissal thereof by the lower court was proper.

Incidentally, the last sentence of the above-quoted portion of the decision in the Paulino case constitutes a reversal
of the ruling contained in the majority opinion in the case of Zuzuarregui v. Zuzuarregui (G.R. No. L-10010, Oct. 31,
1957) relied upon by the appellant.

WHEREFORE, the order appealed from is hereby affirmed, with costs against appellant. So ordered
G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National
Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated
September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her
Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of
the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their
residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975,
respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married
also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial
Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short),
is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business,
and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the
case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the
Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of
June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property
involved is located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the
subject of this certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and
Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However,
when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically,
then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the
error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be
useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the
exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the
representation he made in the divorce proceedings before the American Court that they had no community of
property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred
by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the
prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court
cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters
within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and
private respondent, after their marriage, were upon absolute or relative community property, upon complete
separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in
person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving
his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp &
Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither
community property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of
the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf
and do an things necessary and proper to represent me, without further contesting, subject to the
following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The
decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not
valid and binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are
covered by the policy against absolute divorces the same being considered contrary to our concept of public police and
morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are
valid according to their national law. 6 In this case, the divorce in Nevada released private respondent from the marriage
from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court
of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either.
A husband without a wife, or a wife without a husband, is unknown to the law. When the law
provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as well as
the other, is still absolutely freed from the bond of the former marriage.

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the
alleged conjugal property.

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just.
Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in
Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.
G.R. No. 82233 March 22, 1990

JOSE BARITUA and EDGAR BITANCOR, petitioners,

vs.
HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA NACARIO, 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 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 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 . . . 11 Anent 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 for oracion
adulto, and P5,000.00 for attorney's fees. 13 The petitioners moved for
14 15
a reconsideration of the appellate court's decision but their motion was denied. 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.

The petition is meritorious.

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

Art. 1231. Obligations are extinguished:

(1) By payment or performance;

(2) By the loss of the thing due;

(3) By the 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.

(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.

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 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:

Article 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 decendants;

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. (Emphasis ours.)

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.
G.R. No. 6878 September 13, 1913

MARCELINA EDROSO, petitioner-appellant,

vs.
PABLO and BASILIO SABLAN, opponents-appellees.

ARELLANO, C.J.:

The subject matter of this appeal is the registration of certain property classified as required by law to be reserved.
Marcelina Edroso applied for registration and issuance of title to two parcels of land situated in the municipality of
Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other 1 hectare 6 ares and 26
centares. Two applications were filed, one for each parcel, but both were heard and decided in a single judgment.

Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they
had a son named Pedro, who was born on August 1, 1881, and who at his father's death inherited the two said
parcels. Pedro also died on July 15, 1902, unmarried and without issue and by this decease the two parcels of land
passed through inheritance to his mother, Marcelina Edroso. Hence the hereditary title whereupon is based the
application for registration of her ownership.

Two legitimate brothers of Victoriano Sablan that is, two uncles german of Pedro Sablan appeared in the case
to oppose the registration, claiming one of two things: Either that the registration be denied, "or that if granted to her
the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.)

The Court of Land Registration denied the registration and the application appealed through a bill of exceptions.

Registration was denied because the trial court held that the parcels of land in question partake of the nature of
property required by law to be reserved and that in such a case application could only be presented jointly in the
names of the mother and the said two uncles of Pedro Sablan.

The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the land
which are the subject matter of the application are required by law to be reserved a contention we regard as
indefensible.

Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan
had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise
acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been
adjudicated to him in the partition of hereditary property had between him and his brothers. These are admitted
facts.

A very definite conclusions of law is that the hereditary title is one without a valuable consideration [gratuitous title],
and it is so characterized in article 968 of the Civil Code, for he who acquires by inheritance gives nothing in return
for what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree
of blood relationship.

The ascendant who inherits from his descendant property which the latter acquired without a valuable
consideration from another ascendant, or from a brother or sister, is under obligation to reserve what he has
acquired by operation of law for the relatives who are within the third degree and belong to the line whence
the property proceeded. (Civil Code, art. 811.)

Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which he had acquired
without a valuable consideration that is, by inheritance from another ascendant, his father Victoriano. Having
acquired them by operation of law, she is obligated to relatives within the third degree and belong to the line of
Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of
the nature property required by law to be reserved is therefore in accordance with the law.
But the appellant contends that it is not proven that the two parcels of land in question have been acquired by
operation of law, and that only property acquired without a valuable consideration, which is by operation of law, is
required by law to reserved.

The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly,
the allegation in first instance was merely that "Pedro Sablan acquired the property in question in 1882, before the
enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the
opponents speak; hence, prescription of the right of action; and finally, opponents' renunciation of their right,
admitting that it existed and that they had it" (p. 49).

However that be, it is not superflous to say, although it may be unnecessary, that the applicant inherited the two
parcels of land from her son Pedro, who died "unmarried and without issue." The trial court so held as a conclusion
of fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his
mother became his heir by virtue of her right to her son's legal portion under article 935 of the Civil Code:

In the absence of legitimate children and descendants of the deceased, his ascendants shall from him, to
the exclusion of collaterals.

The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her
possession by free disposal in her son's will; but the case presents no testamentary provision that demonstrate any
transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption
is that the transfer of the two parcels of land was abintestate or by operation of law, and not by will or the wish of the
predecessor in interest. (Act No. 190, sec. 334, No. 26.) All the provision of article 811 of the Civil Code have
therefore been fully complied with.

If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would
not be required by law to be reserved, but only what he would have perforce left her as the legal portion of a
legitimate ascendant.

The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the
children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what
is established in article 836. (Civil Code, art. 809.)

In such case only the half constituting the legal portion would be required by law to be reserved, because it is what
by operation of law could full to the mother from her son's inheritance; the other half at free disposal would not have
to be reserved. This is all that article 811 of the Civil Code says.

No error has been incurred in holding that the two parcels of land which are the subject matter of the application are
required by law to be reserved, because the interested party has not proved that either of them became her
inheritance through the free disposal of her son.

Proof testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro
Sablan's inheritance was acquired by his mother by operation of law. The law provides that the other half is also
presumed to be acquired by operation of law that is, by intestate succession. Otherwise, proof to offset this
presumption must be presented by the interested party, that is, that the other half was acquired by the man's wish
and not by operation of law.

Nor is the third assignments of error admissible that the trial court failed to sustain the renunciation of the right
required by law to be reserved, which the applicant attributes to the opponents. Such renunciation does not appear
in the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of
hers at the trial:

The day after my brother-in-law Pablo Sablan dies and was buried, his brother came to my house and said that
those rice lands were mine, because we had already talked about making delivery of them. (p. 91).
The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the
lands belong to the appellant and must be delivered to her it cannot be deduced that he renounced the right
required by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really
belong to her and must be delivered to her.

The fourth assignments of error set up the defense of prescription of the right of action. The appellant alleges
prescription of the opponent's right of action for requiring fulfillment of the obligation they attribute to her recording in
the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage
Law; and as such obligation is created by law, it prescribed in the time fixed in No. 2 of section 43 of Act No. 190.
She adds: "Prescription of the right alleged to the reserved by force of law has not been invoked." (Eight allegation.)

The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first
instance, where she says only the following, which is quoted from the record: "I do not refer to the prescription of the
right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are
entitled to the guaranty of that right for seeking that guaranty, for those who are entitled to that right the Mortgage
Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking
entry in the registry; but as they have not exercised that right of action, such right of action for seeking here that it be
recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the
right of action for guaranteeing in the property registry that this property is required by law to be reserved" (p. 69 of
the record).

The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the
mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the required by law to be reserved;
but because that right of action has prescribed, that property has not been divested of its character of property
required by law to be reserved; that it has such character by virtue of article 8112 of the Civil Code, which went into
effect in the Philippine in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the
country by law of July 14, 1893; that from December, 1889, to July, 1893, property which under article 811 of the
Civil Code acquired the character of property reserved by operation of law was such independently of the Mortgage
Law, which did not yet form part of the positive legislation of the country; that although the Mortgage Law has been
in effect in the country since July, 1893, still it has in no way altered the force of article 811 of the Civil Code, but has
operated to reinforce the same merely by granting the right of action to the persons in whose favor the right is
reserved by operation of law to require of the person holding the property a guaranty in the form of a mortgage to
answer for the enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the
right itself; that the right reserved is the principal obligation and the mortgage the accessory obligation, and loss of
the accessory does not mean loss of the principal. (Fifth and sixth allegations.)

The existence of the right required by law to be reserved in the two parcels of land in question being indisputable,
even though it be admitted that the right of action which the Mortgage Law grants as a guaranty of final enforcement
of such right has prescribed, the only thing to be determined by this appeal is the question raised in the first
assignment of error, that is, how said two parcels of land can and ought to be registered, not in the property registry
newly established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as the have slipped
into the allegations quoted some rather inexact ideas that further obscure such an intricate subject as this of the
rights required to be reserved in Spanish-Philippine law, a brief disgression on the most essential points may not be
out of place here.

The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first
enforced in the colonies and consequently in the Philippines. The preamble of said amended Mortgage Law states:

The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its
adaptation, in the Antilles on May 1, 1880, and in the Philippines on December 1, 1889, thus commencing in
those regions the renovation of the law on real property, and consequently of agrarian credit.

The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day.

Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968
thereof, where it says:
Besides the reservation imposed by article 811, the widow or widower contracting a seconds marriage shall be
obliged to set apart for the children and descendants of the first marriage the ownership of all the property he or she
may have required from the deceased spouse by will, by intestate succession, by gift, or other transfer without a
valuable consideration."

The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 189, do not
contain any provision that can be applied to the right reserved by article 811 of the Civil Code, for such right is a
creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the
right in favor of the children of the first marriage when their father or mother contracts a second marriage.
Nevertheless, the holding of the supreme court of Spain, for the first time set forth in the decision on appeal of
November 8, 1894, has been reiterated:

That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be
reserved in the property refer especially to the spouses who contract second or later marriages, they do not
thereby cease to be applicable to the right establishes in article 811, because, aside from the legal reason,
which is the same in both cases, such must be the construction from the important and conclusive
circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either
testate or intestate, and because article 968, which heads the section that deals in general with property
required by law to be reserved, makes reference to the provisions in article 811; and it would consequently
be contradictory to the principle of the law and of the common nature of said provisions not to hold them
applicable to that right.

Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already
declared, the guaranties that the Code fixes in article 977 and 978 for the rights required by law to the reserved to
which said articles refer, are applicable to the special right dealt with in article 811, because the same principle
exists and because of the general nature of the provisions of the chapter in which they are found."

From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of
a right required to be reserved by article 811, the persons entitled to such right would have been able to institute,
against the ascendant who must make the reservation, proceedings for the assurance and guaranty that article 977
and 978 grant to the children of a first marriage against their father or mother who has married again. The
proceedings for assurance, under article 977; are: Inventory of the property subject to the right reserved, annotation
in the property registry of such right reserved in the real property and appraisal of the personal property; and the
guaranty, under article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly
alienated.

But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a
principle of jurisprudence which may be invoked for the applicability to the right reserved in article 811 of the
remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of
said law, which is an advantage over the law of Spain, to wit, article 199, which read thus:

The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be
required by the relatives in whose favor the property is to be reserved, if they are of age; if minors, it will be
require by the person who should legally represent them. In either case the right of the persons in whose
favor the property must be reserved will be secured by the same requisites as set forth in the preceding
article (relative to the right reserved by article 968 of the Civil Code), applying to the person obligated to
reserve the right the provisions with respect to the father.

In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said
article 168 reads as thus:

Legal mortgage is established:

1. . . .
 2. In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be
reserved, upon the property of the person obliged to reserve it.

This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for
the right of action to the guaranty, that is, to require the mortgage that guarantees the effectiveness of the right
required by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should
by noted that such action has not prescribed, because the period of ninety days fixed by the Mortgage Law is not for
the exercise of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation
of the person who must make the reservation.

Article 191 of the reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the
foregoing article refers, the relatives themselves may demand fulfillment, etc., . . . applying, according to said article
199, to the person obligated to reserve the right the provisions with respect to the father."

Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the
proceedings to which article 190 thereof refers will be instituted within the ninety days succeeding the date of the
date of the acceptation of the inheritance by the person obligated to reserve the property; after this period has
elapsed, the interested parties may require the institution of such proceedings, if they are of age; and in any other
case, their legal representatives."

Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the right
must be reserved, but really the commencement thereof, enables them to exercise it at any time, since no limits is
set in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question
must be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings
to that end, and an allegation of prescription against the exercise of such right of action cannot be sustained.

Since the applicant confesses that she does not allege prescription of the right of action for requiring that the
property be reserved, for she explicitly so stated at the trial, and as the case presents no necessity for the
proceedings that should be instituted in accordance with the provisions of the Mortgage Law, this prescription of the
right of action cannot take place, because such right of action does not exist with reference to instituting
proceedings for annotation in the registry of Act No. 496 of the right to the property required by law to be reserved. It
is sufficient, as was done in the present case, to intervene in the registration proceedings with the claim set up by
the two opponents for recording therein the right reserved in either parcel of land.

Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its
decision:

Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the
deceased Pedro Sablan, and the application cannot be made except in the name of all of them in common.
(B. of E., p. 20.)

It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person
who has in himself all these rights has the absolute or complete ownership of the thing; otherwise, the person who
has the right to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the
direct title. The person who by law, act, or contract is granted the right of usufruct has the first two rights or using an
enjoying, and then he is said not to have the fee simple that is, the rights of disposal and recovery, which pertain
to another who, after the usufruct expires, will come into full ownership.

The question set up in the first assignment of error of the appellant's brief is this:

What are the rights in the property of the person who holds it subject to the reservation of article 811 of the
Civil Code?

There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the person in
whose favor the reservation is made. If that were so, the person holding the property could not apply for registration
of title, but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to
be admissible, although it appears to be supported by decisions of the supreme court of Spain of May 21, 1861, and
June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof.

Another writer says: "This opinion only looks at two salient points the usufruct and the fee simple; the remaining
features of the arrangement are not perceived, but become obscure in the presence of that deceptive emphasis
which only brings out two things: that the person holding the property will enjoy it and that he must keep what he
enjoys for other persons." (Manresa, VII, 189.)

In another place he says: "We do not believe that the third opinion can now be maintained that is, that the
surviving spouse (the person obliged by article 968 to make the reservation) can be regarded as a mere
usufructuary and the descendants immediately as the owner; such theory has no serious foundation in the Code."
(Ibid., 238.)

The ascendants who inherits from a descendants, whether by the latter's wish or by operation of law, requires the
inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of the right of ownership
belong to him exclusively use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in
the hereditary title, is not altered in the least, if there be no relatives within the third degree in the line whence the
property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If
there should be relatives within the third degree who belong to the line whence the property proceeded, then a
limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with
exactness in order not to vitiate rights that the law wishes to be effective. The opinion which makes this limitation
consist in reducing the ascendant heir to the condition in of a mere usufructuary, depriving him of the right of
disposal and recovery, does not seem to have any support in the law, as it does not have, according to the opinion
that he has been expressed in speaking of the rights of the father or mother who has married again. There is a
marked difference between the case where a man's wish institutes two persons as his heirs, one as usufructuary
and the other as owner of his property, and the case of the ascendant in article 811 or of the father or mother in
article 968. In the first case, there is not the slightest doubt that the title to the hereditary property resides in the
hereditary owner and he can dispose of and recover it, while the usufructuary can in no way perform any act of
disposal of the hereditary property (except that he may dispose of the right of usufruct in accordance with the
provisions of article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form
prescribed in article 486 of the Code itself, because he totally lacks the fee simple. But the ascendants who holds
the property required by article 811 to be reserved, and the father of mother required by article 986 to reserve the
right, can dispose of the property they might itself, the former from his descendant and the latter from his of her child
in first marriage, and recover it from anyone who may unjustly detain it, while the persons in whose favor the right is
required to be reserved in either case cannot perform any act whatsoever of disposal or of recovery.

Article 975 states explicitly that the father or mother required by article 9687 to reserve the right may dispose of the
property itself:

Alienation of the property required by law to be reserved which may be made by the surviving
spouse aftercontracting a second marriage shall be valid only if at his or her death no legitimate children or
descendants of the first marriage survive, without prejudice to the provisions of the Mortgage of Law.

It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit:
"If at his or her death no legitimate children or descendants of the first marriage survive."

If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily
be null and void, as executed without a right to do so and without a right which he could transmit to the acquirer. The
law says that the alienation subsists (to subject is to continue to exist) "without prejudice to the provisions of the
Mortgage Law." Article 109 of this Law says:

The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate
it, provided always that he preserve the right of the parties interested in said conditions by expressly
reserving that right in the registration.
In such case, the child or legitimate descendants of the first marriage in whose favor the right is reserved cannot
impugn the validity of the alienation so long as the condition subsequent is pending, that is, so long as the remarried
spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the
right should outlive all the person in whose favor the right is reserved and then there would be no reason for the
condition subsequent that they survive him, and, the object of the law having disappeared, the right required to be
reserved would disappear, and the alienation would not only be valid but also in very way absolutely effective.
Consequently, the alienation is valid when the right required by law to be reserved to the children is respected; while
the effects of the alienation depend upon a condition, because it will or will not become definite, it will continue to
exist or cease to exist, according to circumstances. This is what the law establishes with reference to the reservation
of article 968, wherein the legislator expressly directs that the surviving spouse who contracts a second marriage
shall reserve to the children or descendants of the first marriage ownership. Article 811 says nothing more than that
the ascendants must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the heading, "Rights and obligations during the
existence of the right required by law to be reserved," in these words:

During the whole period between the constitution in legal form of the right required by law to be reserved and the
extinction thereof, the relatives within the third degree, after the right that in their turn may pertain to them has
beenassured, have only an expectation, and therefore they do not even have the capacity to transmit that
expectation to their heirs.

The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in
the manner and form already set forth in commenting upon the article of the Code referring to use and usufruct.

But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the
property, he can dispose of it in the manner provided in article 974 and 976 of the same Code. Doubt arose also on
this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and
975, which are applicable by analogy, for they refer to property reserved by law, reveal in the clearest manner the
attitude of the legislator on this subject, and the relatives with the third degree ought not to be more privileged in the
right reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right
required to be reserved carries with it a condition subsequent, and the property subject to those conditions can
validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending
fulfillment of the condition." (Civil Code, VI, 270.)

Another commentator corroborates the foregoing in every way. He says:

The ascendants acquires that property with a condition subsequent, to wit, whether or not there exists at the
time of his death relatives within the third degree of the descendants from whom they inherit in the line
whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of
the ascendants. If they do not exist, the ascendants can freely dispose thereof. If this is true, since the
possessor of property subject to conditions subsequent can alienate and encumber it, the ascendants may
alienate the property required by law to be reserved, but he will alienate what he has and nothing more
because no one can give what does not belong to him, and the acquirer will therefore receive a limited and
revocable title. The relatives within the third degree will in their turn have an expectation to the property
while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also
within the third degree. After the person who is required by law to reserve the right has died, the relatives
may rescind the alienation of the realty required by law to be reserved and they will complete ownership, in
fee simple, because the condition and the usufruct have been terminated by the death of the usufructuary.
(Morell, Estudios sobre bienes reservable, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights
of use and usufruct. He has, moreover, for the reasons set forth, the legal title and dominion, although under a
condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property
reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is
the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the
legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to
be reserved has been assured, he can do anything that a genuine owner can do.
On the other hand, the relatives within the third degree in whose favor of the right is reserved cannot dispose of the
property, first because it is no way, either actually, constructively or formally, in their possession; and, moreover,
because they have no title of ownership or of the fee simple which they can transmit to another, on the hypothesis
that only when the person who must reserve the right should die before them will they acquire it, thus creating a fee
simple, and only then will they take their place in the succession of the descendants of whom they are relatives
within the third degree, that it to say, a second contingent place in said legitimate succession in the fashion of
aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their
rights has been assured in the registry, dare to dispose of even nothing more than the fee simple of the property to
be reserved his act would be null and void, for, as was definitely decided in the decision on appeal of December 30,
1897, it is impossible to determine the part "that might pertain therein to the relative at the time he exercised the
right, because in view of the nature and scope of the right required by law to be reserved the extent of his right
cannot be foreseen, for it may disappear by his dying before the person required to reserve it, just as may even
become absolute should that person die."

Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by
law to reserve the right can be impugned by him in whose favor it is reserved, because such person has all,
absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third
party acquirer may ascertain from the registry in order to know that he is acquiring a title subject to a condition
subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than
relatives within the third degree of the descendants from whom he got the property to be reserved must be
prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from
securing, by some special accident of life, property that would otherwise have remained therein." (Decision of
December 30, 1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere
usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may be absolutely
made of the property the law requires to be reserved, in the present case, that which the appellant has made of the
two parcels of land in question to a third party, because the conditional alienation that is permitted her is equivalent
to an alienation of the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and
enjoyment of the property required by law to be reserved are all that the person who must reserve it has during his
lifetime, and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible
manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not real,
actual positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the
express wish of the predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use,
enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the real owner and can
alienate it, although under a condition, the whole question is reduced to the following terms:

Cannot the heir of the property required by law to reserved, merely because a condition subsequent is annexed to
his right of disposal, himself alone register the ownership of the property he has inherited, when the persons in
whose favor the reservation must be made degree thereto, provided that the right reserved to them in the two
parcels of land be recorded, as the law provides?

It is well known that the vendee under pacto de retracto acquires all the rights of the vendor:

The vendee substitutes the vendor in all his rights and actions. (Civil Code, art. 1511.)

If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title,
however, in its attribute of being disposable, has a condition subsequent annexed that the alienation the
purchaser may make will be terminated, if the vendor should exercise the right granted him by article 1507, which
says:

Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold,
with the obligation to comply with article 1518, and whatever more may have been agreed upon," that is, if he
recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this
condition subsequent, it is a point not at all doubtful now that the vendee may register his title in the same way as
the owner of a thing mortgaged that is to say, the latter with the consent of his creditor and the former with the
consent of the vendor. He may alienate the thing bought when the acquirer knows by well from the title entered in
the registry that he acquires a title revocable after a fixed period, a thing much more certain and to be expected than
the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another
has inherited. The purpose of the law would be defeated in not applying to the person who must make the
reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is
the more power and conclusive; ubi eadem ratio, eadem legis dispositivo.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is
entitled to register in her own name the two parcels of land which are the subject matter of the applicants, recording
in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan
and Basilio Sablan, should they survive her; without special findings as to costs.
G.R. No. L-12957 March 24, 1961

CONSTANCIO SIENES, ET AL., plaintiffs-appellants,

vs.
FIDEL ESPARCIA, ET AL., defendants-appellees.

DIZON, J.:

Appellants commenced this action below to secure judgment (1) declaring null and void the sale executed by
Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel Esparcia and Paulina Sienes; (2) ordering the
Esparcia spouses to reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental
Negros; and (3) ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00 as
damages, plus the costs of suit. In their answer appellees disclaimed any knowledge or information regarding the
sale allegedly made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if such sale was
made, the same was void on the ground that Andrea Gutang had no right to dispose of the property subject matter
thereof. They further alleged that said property had never been in possession of appellants, the truth being that
appellees, as owners, had been in continuous possession thereof since the death of Francisco Yaeso. By way of
affirmative defense and counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the
only surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses Fidel Esparcia
and Paulina Sienes, the said sale having been registered together with an affidavit of adjudication executed by
Paulina and Cipriana on July 18, 1951, as sole surviving heirs of the aforesaid deceased; that since then the
Esparcias had been in possession of the property as owners.

After trial upon the issues thus joined, the lower court rendered judgment as follows:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that the sale of Lot No.
3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and Genoveva Silay is void, and
the reconveyance prayed for by them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in
favor of defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void, and they have no
valid title thereto; and (3) that the reservable property in question is part of and must be reverted to the
estate of Cipriana Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea
Gutang as of December 13, 1951. No pronouncement as to the costs.

From the above decision the Sienes spouse interposed the present appeal, their principal contentions being, firstly,
that the lower court erred in holding that Lot 3368 of the Cadastral Survey of Ayuquitan was a reservable property;
secondly, in annulling the sale of said lot executed by Andrea Gutang in their favor; and lastly, in holding that
Cipriana Yaeso, as reservee, was entitled to inherit said land.

There is no dispute as to the following facts:

Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he had four children named
Agaton, Fernando, Paulina and Cipriana, while with his second wife, Andrea Gutang, he had an only son named
Francisco. According to the cadastral records of Ayuquitan, the properties left by Saturnino upon his death the
date of which does not clearly appear of record were left to his children as follows: Lot 3366 to Cipriana, Lot 3367
to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to
Francisco. As a result of the cadastral proceedings, Original Certificate of Title No. 10275 covering Lot 3368 was
issued in the name of Francisco. Because Francisco was a minor at the time, his mother administered the property
for him, declared it in her name for taxation purposes (Exhs A & A-1), and paid the taxes due thereon (Exhs. B, C,
C-1 & C-2). When Francisco died on May 29, 1932 at the age of 20, single and without any descendant, his mother,
as his sole heir, executed the public instrument Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND SALE
whereby, among other things, for and in consideration of the sum of P800.00 she sold the property in question to
appellants. When thereafter said vendees demanded from Paulina Yaeso and her husband Jose Esparcia, the
surrender of Original Certificate of Title No. 10275 which was in their possession the latter refused, thus giving
rise to the filing of the corresponding motion in the cadastral record No. 507. The same, however, was denied (Exhs.
8 & 9).
Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the surviving half-sisters of
Francisco, and who as such had declared the property in their name, on January 1, 1951 executed a deed of sale in
favor of the spouses Fidel Esparcia and Paulina Sienes (Exh. 2) who, in turn, declared it in their name for tax
purposes and thereafter secured the issuance in their name of Transfer Certificate of Title No. T-2141 (Exhs. 5 & 5-
A).

As held by the trial court, it is clear upon the facts already stated, that the land in question was reservable property.
Francisco Yaeso inherited it by operation of law from his father Saturnino, and upon Francisco's death, unmarried
and without descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under
obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said
property came, if any survived her. The record discloses in this connection that Andrea Gutang died on December
13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10).

In connection with reservable property, the weight of opinion is that the reserve creates two resolutory conditions,
namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives
within the third degree belonging to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman
1934). This Court has held in connection with this matter that the reservista has the legal title and dominion to the
reservable property but subject to a resolutory condition; that he is like a life usufructuary of the reservable property;
that he may alienate the same but subject to reservation, said alienation transmitting only the revocable and
conditional ownership of the reservists, the rights acquired by the transferee being revoked or resolved by the
survival of reservatarios at the time of the death of the reservista (Edroso vs. Sablan, 25 Phil. 295; Lunsod vs.
Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil. 279).

The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the condition that the vendees
would definitely acquire ownership, by virtue of the alienation, only if the vendor died without being survived by any
person entitled to the reservable property. Inasmuch much as when Andrea Gutang died, Cipriana Yaeso was still
alive, the conclusion becomes inescapable that the previous sale made by the former in favor of appellants became
of no legal effect and the reservable property subject matter thereof passed in exclusive ownership to Cipriana.

On the other hand, it is also clear that the sale executed by the sisters Paulina and Cipriana Yaeso in favor of the
spouses Fidel Esparcia and Paulina Sienes was subject to a similar resolutory condition. The reserve instituted by
law in favor of the heirs within the third degree belonging to the line from which the reservable property came,
constitutes a real right which the reservee may alienate and dispose of, albeit conditionally, the condition being that
the alienation shall transfer ownership to the vendee only if and when the reservee survives the person obliged to
reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive when Andrea Gutang, the person
obliged to reserve, died. Thus the former became the absolute owner of the reservable property upon Andrea's
death. While it may be true that the sale made by her and her sister prior to this event, became effective because of
the occurrence of the resolutory condition, we are not now in a position to reverse the appealed decision, in so far
as it orders the reversion of the property in question to the Estate of Cipriana Yaeso, because the vendees the
Esparcia spouses did not appeal therefrom.

WHEREFORE, the appealed decision as above modified is affirmed, with costs, and without prejudice to
whatever action in equity the Esparcia spouses may have against the Estate of Cipriana Yaeso for the
reconveyance of the property in question.
G.R. No. L-29901 August 31, 1977

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners,

vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and SUSANA DE LA TORRE, in
her capacity as Administratrix of the Intestate Estate of Consolacion de la Torre, respondents.

MARTIN, J.:

Petition for review of the decision of the respondent Court which dismissed the complaint of petitioners in Civil Case
No. 7839-A, entitled "Ignacio Frias Chua, et al. vs. Susana de la Torre, Administratrix of the Intestate Estate of
Consolacion de la Torre"

It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy Quio he sired three children,
namely: Ignacio, Lorenzo and Manuel, all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua
contracted a second marriage with Consolacion de la Torre with whom he had a child by the name of Juanita Frias
Chua. Manuel Frias Chua died without leaving any issue. Then in 1929, Jose Frias Chua died intestate leaving his
widow Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and sons Ignacio Frias Chua
and Lorenzo Frias Chua of his first marriage. In Intestate Proceeding No. 4816, the lower court issued an order
dated January 15, 1931 1 adjudicating, among others, the one-half (1/2,) portion of Lot No. 399 and the sum of
P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la Torre, the other half of Lot No. 399 in favor of Juanito
Frias Chua, his son in the second marriage; P3,000.00 in favor of Lorenze Frias chua; and P1,550.00 in favor of Ignacio
Frias, Chua, his sons of the first marriage. By virtue of said adjudication, Transfer Certificate of Title No. TR-980
(14483) 2 dated April 28, 1932 was issued by the Register of Deeds in the names of Consolacion de la Torre and Juanito
Frias Chua as owners pro-indiviso of Lot No. 399.

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without any issue. After his death,
his mother Consolacion de la Torre succeeded to his pro-indivisio share of Lot No. 399. In a week's time or on
March 6, 1952, Consolacion de la Torre executed a declaration of heirship adjudicating in her favor the pro-indiviso
share of her son Juanito as a result of which Transfer Certificate of Title No. 31796 covering the whole Lot No. 399
was issued in her name. Then on March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either
in the descending or ascending line except her brother and sisters.

In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc. No. 7839-A, the petitioners herein,
Ignacio Frias Chua, of the first marriage and dominador and Remedios Chua, the supposed legitimate children of
the deceased Lorenzo Frias Chua, also of the first marriage filed the complaint a quo 3 (subseqently segregated as a
distinct suit and docketed as Civil Case No. 7839-A) on May 11, 1966 before the respondent Court of First Instance of
Negros Occidental, Branch V, praying that the one-half (1/2) portion of Lot No. 399 which formerly belonged to Juanito
Frias but which passed to Consolacion de la Torre upon the latter's death, be declaredas a reservable property for the
reason that the lot in questionn was subject to reserval troncal pursuant to Article 981 of the New Civil Code, Private
respondent as administratrix of the estate of individually the complaint of petitioners 4

On July 29, 1986, the respondent Court rendered a decision dismissing the complaint of petitioner. Hence this
instant.

The pertinent provision of reserva troncal under the New Civil Code provides:

ART. 891. The ascendant who inheritts from his descendant any property which the latter may have
acquired by gratuitous title from another ascendat, or a brother or sister, is obliged to reserve such
property as he may have acquired by operation of law for the benefit of relatives who are within the
third degree and belong to the line from which said property came.

Persuant to the foregoing provision, in order that a property may be impressed with a reservable character the
following requisites must exist, to wit: (1) that the property was acquired by a descendant from an asscendant or
from a brother or sister by gratuitous title; (2) that said descendant died without an issue; (3) that the property is
inherited by another ascendant by operation of law; and (4) that there are relatives within the third degree belonging
to the line from which said property came. 5 In the case before Us, all of the foregoing requisites are present. Thus, as
borne out by the records, Juanoito Frias Chua of the second marriage died intestate in 1952; he died withour leaving any
issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre died, Juannnito
Frias Chua who died intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and
Dominador Chua and Remidios Chua, the suppose legitimate children of the deceased Lorenzo Frias Chua, who are the
petitioners herein.

The crux of the problem in instant petition is focused on the first requisit of reserva troncal whether the property in
question was acquired by Juanito Frias Chua from his father Jose Frias Chua, gratuitously or not. In resolving this
point, the respondent Court said:

It appears from Exh. "3", which is part of Exh. "D", that the property in question was not acquired by
Consolacion de la Torre and Juanito Frias Chua gratuitously but for a consideration, namely, that the
legatees were to pay the interest and cost and other fees resulting from Civil Case No. 5300 of this
Court. As such it is undeniable that the lot in question is not subject tot a reserva troncal, under Art.
891 of the New Civil Code, and as such the plaintiff's complaint must fail.

We are not prepared to sustain the respondent Court's conclusion that the lot in question is not subject to a reserva
troncal under Art. 891 of the New Civil Code. It is, As explained by Manresa which this Court quoted with approval
inCabardo v. Villanueva, 44 Phil. 186, "The transmission is gratuitous or by gratuitous title when the recipient does
not give anything in return." It matters not whether the property transmitted be or be not subject to any prior charges;
what is essential is that the transmission be made gratuitously, or by an act of mere liberality of the person making
it, without imposing any obligation on the part of the recipient; and that the person receiving the property gives or
does nothing in return; or, as ably put by an eminent Filipino commentator, 6 "the essential thing is that the person who
transmits it does so gratuitously, from pure generosity, without requiring from the transferee any prestation." It is evident
from the record that the transmission of the property in question to Juanito Frias Chua of the second marriage upon the
death of his father Jose Frias Chua was by means of a hereditary succession and therefore gratuitous. It is true that there
is the order (Exh. "D") of the probate Court in Intestate Proceeding No. 4816 which estates in express terms;

2. Se adjudicada pro el presente a favor de Consolacion de la Torre, viuda, mayor de edad, y de

su hiju, Juanito Frias Chua, menor de edad, todos residente de San Enrique, Negros Occidental,
I.F.,como herederos del finado Jose Frias Chua Choo, estas propiadades:

14483

La parcela de terrenno concida por Lote No. 399 del Catsatro de la Carlota, Negros Occidental, de
191.954 metros cuadddrados y cubierto por el Certificado de Titulo No. 11759, en partes equales
pro-indiviso; por con la obligscion de pagar a las Standard Oil Co. of New York la deuda de
P3971.20, sus intereses, costas y demas gastos resultantes del asunto civil No. 5300de este
jusgado

But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20 is imposed upon
Consolacion de la Torre and Juanito Frias Chua not personally by the deceased Jose Frias Chua in his last will and
testament but by an order of the court in the Testate Proceeding No.4816 dated January 15, 1931. As long as the
transmission of the property to the heirs is free from any condition imposed by the deceased himself and the
property is given out of pure generosity, itg is gratuitous. it does not matter if later the court orders one of the heirs,
in this case Juanito Frias Chua, to pay the Standare oil co. of New York the amount of P3,971.20. This does not
change the gratuitous nature of the transmission of the property to him. This being the case the lot in question is
subject to reserva troncal under Art, 891 of the New Civil Code.

It is contented that the distribution of the shares of the estate of Jose Frias Chua to the respondent heirs or legatees
was agreed upon by the heirs in their project of partition based on the last will and testament of Jose Frias Chua.
But petitioners claim that the supposed Last Will and Testament of Jose Frias Chua was never probated. The fact
that the will was not probated was admitted in paragraph 6 of the respondents' answer. 7 There is nothing mentioned
in the decision of the trial court in Civil Case No. 7839 A which is the subject of the present appeal nor in the order of
January 15, 1931 of the trial court in the Testate Estate Proceeding No. 4816 nor in the private respondent's brief, that the
Last Will and Testament of Jose Frias Chua has ever been probated. With the foregoing, it is easy to deduce that if the
Last Will and Testament has in fact been probated there would have been no need for the testamentary heirs to prepare a
project of partition among themselves. The very will itself could be made the basis for the adjudication of the estate as in
fact they did in their project of partition with Juanito Frias Chua getting one-half of Lot 399 by inheritance as a sone of the
deceased Jose Frias Chua by the latter's second marriage.

According to the record, Juanito Frias Chua died on February 27, 1952 without any issue. After his death his mother
Consolation de la Torre succeeded to his one-half pro-indiviso share of Lot 399. This was, however, subject to the
condition that the property was reservable in character under Art. 891 of the Civil Code in favor of relatives within
the third degree of Jose Frias Chua from whom the property came. These relatives are the petitioner herein.

It is claimed that the complaint of petitioners to recover the one-half portion of Lot 399 which originally belonged to
Juanito Frias Chua has already prescribed when it was filed on May 11, 1966. We do not believe so. It must be
remembered that the petitioners herein are claiming as reservees did not arise until the time the reservor,
Consolacion de la Torre, died in March 1966. When the petitioners therefore filed their complaint to recover the one-
half (1/2) portion of Lot 399, they were very much in time to do so.

IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The petitioners Ignacio Frias
Chua, Dominador Chua and Remedios Chua are declared owners of 1/2 undivided portion of Lot 399; and the
Register of Deeds of Negros Occidental is hereby ordered to cancel. Transfer Certificate of Title No. 31796 covering
Lot No. 399 issued in the name of Consolacion de la Torre and to issue a new Certificate of Title in the names of
Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias Chua, 1/4 undivided portion; and Dominador Chua and
Remedios Chua, 1/4 undivided portion, of said lot. Without pronouncement as to costs.

SO ORDERED.
G.R. No. L-14603 April 29, 1961

RICARDO LARCERNA, ET AL., plaintiffs-appellants,

vs.
AGATONA PAURILLO VDA. DE CORCINO, defendant-appellee.
JACOBA MARBEBE, intervenor-appellee. CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Iloilo declaring that the parcels of land in litigation are
property of intervenor Jacoba Marbebe.

This action was instituted by Ricardo, Patrocinia, Patria, Faustino, Leonor, Ramona, Asuncion, Emiliana, Arsenio
and Felipe, all surnamed Lacerna, for the recovery of three parcels of unregistered lands, situated in the municipality
of Maasin, Iloilo, and more specifically described in the complaint, upon the ground that said lands belonged to the
deceased Juan Marbebe, and that his cousins, plaintiffs herein, are his sole heirs.

In her answer, defendant Agatona Vda. de Corcino alleged, inter alia, that Juan Marbebe might still be alive; that
she held the disputed lands under a power of attorney executed by Juan Marbebe; and that, if he has died, she is
entitled to succeed him in the same manner as plaintiffs herein, she being related to him in the same manner as
plaintiffs are.

With the court's permission, Jacoba Marbebe filed an answer in intervention alleging that she is a half sister of Juan
Marbebe who died intestate, leaving neither ascendants nor descendants, and that, as his half sister, she is entitled,
by succession, to the properties in dispute.

After due trial, the court rendered judgment for the intervenor. Hence, this appeal by the plaintiffs.

The lower court found, and appellants do not question, that the lands described in the complaint belonged originally
to Bonifacia Lacerna. Upon her death in 1932, they passed, by succession, to her only son, Juan Marbebe who was,
subsequently, taken to Culion where he died intestate, single and without issue on February 21, 1943. The question
for determination is: who shall succeed him?

It appears that his mother, Bonifacia Lacerna, had a sister, Agatona Paurillo Vda. de Corcino, the defendant herein;
that Catalino Lacerna died in 1950 and was survived by his children, plaintiffs Ricardo, Patrocinia and Patria, all
surnamed Lacerna; and that Marcelo Lacerna who died in 1953, was survived by his children, the other plaintiffs
herein, namely, Ramona, Faustino, Leonor, Asuncion Emiliano, Arsenio and Felipe, all surnamed Lacerna. Upon the
other hand, intervenor Jacoba Marbebe is daughter, by first marriage, of Valentin Marbebe, husband of Bonifacia
Lacerna and father of Juan Marbebe, who, accordingly, is a half brother of said intervenor.

With this factual background, the issue is narrowed down to whether Jacoba Marbebe, as half sister of Juan
Marbebe, on his father's side, is his sole heir, as held by His Honor, the Trial Judge, or whether plaintiffs herein, as
first cousins of Juan Marbebe, on his mother side, have a better right to succeed him, to the exclusion of Jacoba
Marbebe, as plaintiffs-appellants maintain.

The latter's pretense is based upon the theory that, pursuant to Article 891 of the Civil Code of the Philippines,
establishing what is known as "reserva troncal", the properties in dispute should pass to the heirs of the deceased
within the third degree, who belong to the line from which said properties came, and that since the same were
inherited by Juan Marbebe from his mother, they should go to his nearest relative within the third degree on the
material line, to which plaintiffs belong, not to intervenor, Jacoba Marbebe, despite the greater proximity of her
relationship to the deceased, for she belongs to the paternal line.

Jacoba Marbebe contends, however, and the lower court held, that brothers and sisters exclude all other collateral
relatives in the order of intestate succession, and that, as Juan Marbebe's half-sister, she has, accordingly, a better
right than plaintiffs herein to inherit his properties.

The main flaw in appellants' theory is that it assumes that said properties are subject to the "reserva troncal", which
is not a fact, for Article 891 of the Civil Code of the Philippines, provides:
 The ascendant who inherits from his descendant any property which the latter may have acquired by
gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may
have acquired by operation of law for the benefit of relatives who are within the third degree and who belong
to the line from which said property came. (Emphasis supplied.)

This article applies only to properties inherited, under the conditions therein set forth, by an ascendant from a
descendant, and this is not the case before us, for the lands in dispute were inherited by a descendant, Juan
Marbebe, from an ascendant, his mother, Bonifacia Lacerna. Said legal provision is, therefore, not in point, and the
transmission of the aforementioned lands, by inheritance, was properly determined by His Honor, the Trial Judge, in
accordance with the order prescribed for intestate succession, particularly Articles 1003 to 1009 of the Civil Code of
the Philippines, pursuant to which a sister, even if only a half-sister, in the absence of other sisters or brothers, or of
children of brothers or sisters, excludes all other collateral relatives, regardless of whether or not the latter belong to
the line from which the property of the deceased came.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against plaintiffs-appellants. It is so
ordered.
G.R. No. L-14856 November 15, 1919

ENCARNACION FLORENTINO, ET AL., plaintiffs-appellants,

vs.
MERCEDES FLORENTINO, ET AL., defendants-appellees.

TORRES, J.:

On January 17, 1918, counsel for Encarnacion (together with her husband Simeon Serrano), Gabriel, Magdalena,
Ramon, Miguel, Victorino, and Antonino of the surname Florentino; for Miguel Florentino, guardian ad litem of the
minor Rosario Florentino; for Eugenio Singson, the father and guardian ad litem of Emilia, Jesus, Lourdes, Caridad,
and Dolores of the surname Singson y Florentino; and for Eugenio Singson, guardian of the minors Jose and
Asuncion Florentino, filed a complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino and
her husband, alleging as follows:

That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot
nine children called, Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the
surname Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with
whom he had two children, Mercedes and Apolonio III of the surname Florentino y de Leon; that Apolonio Isabelo
Florentino II died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten
children first above mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March 1890.

That of the deceased Apolonio Isabelo's aforementioned eleven children, Juan, Maria and Isabel died single,without
leaving any ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and Rosario are the legitimate
children of the deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo; that Emilia,
Jesus, Lourdes, Caridad, and Dolores are the legitimate children of Espirita Florentino, now deceased, and her
husband Eugenio Singson; that Jose and Asuncion are the children of Pedro Florentino, another son of the
deceased Apolonio Isabelo Florentino.

That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of
Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the posthumos Apolonio III and his
widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be
divided among all of his children of both marriages.

That, in the partition of the said testator's estate, there was given to Apolonio Florentino III, his posthumos son, the
property marked with the letters A, B, C, D, E, and F in the complaint, a gold rosary, pieces of gold, of silver and of
table service, livestock, palay, some personal property and other objects mentioned in the complaint.

That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891; that his mother, Severina Faz
de Leon, succeeded to all his property described in the complaint; that the widow, Severina Faz de Leon died on
November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino;
that, as such heir, said daughter took possession of all the property left at the death of her mother, Severina Faz de
Leon; that among same is included the property, described in the complaint, which the said Severina Faz de Leon
inherited from her deceased son, the posthumos Apolonio, as reservable property; that, as a reservist, the heir of
the said Mercedes Florentino deceased had been gathering for herself alone the fruits of lands described in the
complaint; that each and every one of the parties mentioned in said complaint is entitled to one-seventh of the fruits
of the reservable property described therein, either by direct participation or by representation, in the manner
mentioned in paragraph 9 of the complaint.

That several times the plaintiffs have, in an amicable manner, asked the defendants to deliver their corresponding
part of the reservable property; that without any justifiable motive the defendants have refused and do refuse to
deliver said property or to pay for its value; that for nine years Mercedes Florentino has been receiving, as rent for
the lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90 bundles of corn at four pesos per
bundle; that thereby the plaintiffs have suffered damages in the sum of fifteen thousand four hundred and twenty-
eight pesos and fifty-eight centavos, in addition to three hundred and eight pesos and fifty-eight centavos for the
value of the fruits not gathered, of one thousand pesos (P1,000) for the unjustifiable retention of the aforementioned
reservable property and for the expenses of this suit. Wherefore they pray it be declared that all the foregoing
property is reservable property; that the plaintiffs had and do have a right to the same, in the quantity and proportion
mentioned in the aforementioned paragraph 9 of the complaint; that the defendants Mercedes Florentino and her
husband be ordered to deliver to the plaintiffs their share of the property in question, of the palay and of the corn
above mentioned, or their value; and that they be condemned to pay the plaintiffs the sum of one thousand pesos
(P1,000) together with the costs of this instance.

To the preceding complaint counsel for the defendants demurred, alleging that the cause of action is based on the
obligation of the widow Severina Faz de Leon to reserve the property she inherited from her deceased son Apolonio
Florentino y de Leon who, in turn, inherited same from his father Apolonio Isabelo Florentino; that, there being no
allegation to the contrary, it is to be presumed that the widow Severina Faz de Leon did not remarry after the death
of this husband nor have any natural child; that the right claimed by the plaintiffs is not that mentioned in article 968
and the following articles, but that established in article 811 of the Civil Code; that the object of the provisions of the
aforementioned articles is to avoid the transfer of said reservable property to those extraneous to the family of the
owner thereof; that if the property inherited by the widow Severina Faz de Leon from her deceased son Apolonio
Florentino y Faz de Leon (property which originated from his father and her husband) has all passed into the hands
of the defendant, Mercedes Florentino y Encarnacion, a daughter of the common ancestor's second marriage (said
Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is evident that the property left at the death
of the posthumos son Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina, his
legitimate heirs as an ascendant, into the hands of strangers; that said property having been inherited by Mercedes
Florentino y Encarnacion from her mother (Severina), article 811 of the Civil Code is absolutely inapplicable to the
present case because, when the defendant Mercedes, by operation law, entered into and succeeded to, the
possession, of the property lawfully inherited from her mother Severina Faz de Leon, said property had, while in the
possession of her mother, lost the character of reservable property there being a legitimate daughter of Severina
Faz de Leon with the right to succeed her in all her rights, property and actions; that the restraints of the law
whereby said property may not passed into the possession of strangers are void, inasmuch as the said widow had
no obligation to reserve same, as Mercedes Florentino is a forced heiress of her mother Severina Faz de Leon; that,
in the present case, there is no property reserved for the plaintiffs since there is a forced heiress, entitled to the
property left by the death of the widow Severina Faz de Leon who never remarried; that the obligation to reserve is
secondary to the duty of respecting the legitime; that in the instant case, the widow Severina Faz de Leon was in
duty bound to respect the legitime of her daughter Mercedes the defendant; that her obligation to reserve the
property could not be fulfilled to the prejudice of the legitime which belongs to her forced heiress, citing in support of
these statements the decision of the supreme court of Spain of January 4, 1911; that, finally, the application of
article 811 of the Civil Code in favor of the plaintiffs would presuppose the exclusion of the defendant from here right
to succeed exclusively to all the property, rights and actions left by her legitimate mother, although the said
defendant has a better right than the plaintiffs; and that there would be injustice if the property claimed be
adjudicated to the plaintiffs, as well as violation of section 5 of the Jones Law which invalidates any law depriving
any person of an equal protection. Wherefore they prayed that the demurrer be sustained, with costs against the
plaintiffs.

After the hearing of the demurrer, on August 22, 1918, the judge absolved the defendants from the complaint and
condemned the plaintiffs to pay the costs.

Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a new trial; said motion was
overruled; the plaintiffs expected thereto and filed the corresponding bill of exceptions which was allowed, certified
and forwarded to the clerk of this court.

On appeal the trial judge sustained the demurrer of the defendants to the complaint of the plaintiffs, but, instead of
ordering the latter to amend their complaint within the period prescribed by the rules undoubtedly believing that
the plaintiffs could not alter nor change the facts constituting the cause of action, and that, as both parties were
agreed as to the facts alleged in the complaint as well as in the demurrer, every question reduced itself to one of the
law, already submitted to the decision of the court the said judge, disregarding the ordinary procedure
established by law, decided the case by absolving the defendants from the complaint and by condemning the
plaintiffs to pay the costs of the instance.

There certainly was no real trial, inasmuch as the defendants, instead of answering the complaint of the plaintiffs,
confined themselves to filing a demurrer based on the ground that the facts alleged in the complaint do not
constitute a cause of action. However, the judge preferred to absolve the defendants, thereby making an end to the
cause, instead of dismissing the same, because undoubtedly he believed, in view of the controversy between the
parties, that the arguments adduced to support the demurrer would be the same which the defendants would allege
in their answer those dealing with a mere question of law which the courts would have to decide and that, the
demurrer having been sustained, if the plaintiffs should insist they could do no less upon alleging the same
facts as those set out in their complaint and if another demurrer were afterwards set up, he would be obliged to
dismiss said complaint with costs against the plaintiffs in spite of being undoubtedly convinced in the instant case
that the plaintiffs absolutely lack the right to bring the action stated in their complaint.

Being of the opinion that the emendation of the indicated defects is not necessary as in this case what has been
done does not prejudice the parties the appellate court will now proceed to decide the suit according to its merits,
as found in the record and to the legal provisions applicable to the question of law in controversy so that
unnecessary delay and greater expense may be avoided, inasmuch as, even if all the ordinary proceedings be
followed, the suit would be subsequently decided in the manner and terms that it is now decided in the opinion
thoughtfully and conscientiously formed for its determination.

In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of
the Civil Code, and whether the same article is applicable to the question of law presented in this suit, it is
necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of
reservable property; and if so, whether in accordance with the provision of the Civil Code in article 811, Severina
Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited said property from her son
Apolonio Florentino III (born after the death of his father Apolonio Isabelo) had the obligation to preserve and
reserve same for the relatives, within the third degree, of her aforementioned deceased son Apolonio III.

The above mentioned article reads:

Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some
other ascendant, or from a brother or sister, is obliged to reserve such of the property as he may have
acquired by operation of law for the benefit of relatives within the third degree belonging to the line from
which such property came.

During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were born, namely the
defendant Mercedes Florentino and Apolonio Florentino III (born after the death of his father). At the death of
Apolonio Isabelo Florentino under a will, his eleven children succeeded to the inheritance he left, one of whom, the
posthumos son Apolonio III, was given, as his share, the aforementioned property enumerated in the complaint. In
1891 the said posthumos son Apolonio Florentino III died and was succeeded by his legitimate mother Severina Faz
de Leon, who inherited the property he left and who on dying, November 18, 1908, instituted by will as her sole
heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property left
by her father, same constituting the inheritance. Included in said inheritance is the property, specified in by the
posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino, and which, at the death of the
said posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if Severina left in her will
said property, together with her own, to her only daughter and forced heiress, Mercedes Florentino, nevertheless
this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants,
Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his
legitimate mother and ascendant, Severina Faz de Leon.

The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title
or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II. Although said property
was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of
the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the
line from which such property came.

According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust,
merely for the reason that said law imposes the obligation to reserve and preserve same for certain designated
persons who, on the death of the said ascendants reservists, (taking into consideration the nature of the line from
which such property came) acquire the ownership of said property in fact and by operation of law in the same
manner as forced heirs (because they are also such) said property reverts to said line as long as the
aforementioned persons who, from the death of the ascendant-reservists, acquire in fact the right
of reservatarios(person for whom property is reserved), and are relatives, within the third degree, of the descendant
from whom the reservable property came.

Any ascendant who inherits from his descendant any property, while there are living, within the third degree,
relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property received. He is,
however, the legitimate owner of his own property which is not reservable property and which constitutes his
legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within the third degree, of
the descendant (from whom came the reservable property) die or disappear, the said property becomes free
property, by operation of law, and is thereby converted into the legitime of the ascendant heir who can transmit it at
his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable
property, pertaining thereto at the death of the relatives, called reservatarios, who belonged within the third degree
to the line from which such property came. lawphil.net

Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the
third degree, the right of the nearest relative, called reservatario, over the property which the reservista (person
holding it subject to reservation) should return to him, excludes that of the one more remote. The right of
representation cannot be alleged when the one claiming same as a reservatario of the reservable property is not
among the relatives within the third degree belonging to the line from which such property came, inasmuch as the
right granted by the Civil Code in article 811 is in the highest degree personal and for the exclusive benefit of
designated persons who are the relatives, within the third degree, of the person from whom the reservable property
came. Therefore, relatives of the fourth and the succeeding degrees can never be considered as reservatarios,
since the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his right
asreservatario who is not within the third degree of relationship, nevertheless there is right of representation on the
part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased
person from whom the reservable property came. These reservatarios have the right to represent their ascendants
(fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in
accordance with article 811 of the Civil Code.

In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are
the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel,
Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his
deceased son, Jose Florentino; that the same have the right to represent their aforementioned father, Jose
Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased Espirita
Florentino, one of the daughters of the deceased Apolonio Isabelo Florentino II, and represent the right of their
aforementioned mother; and that the other plaintiffs, Jose and Asuncion, have also the right to represent their
legitimate father Pedro Florentino one of the sons of the aforementioned Apolonio Isabelo Florentino II. It is a fact,
admitted by both parties, that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II
died without issue so that this decision does not deal with them.

There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III; the
posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children of his first marriage
Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own
twelve children respectively; and Mercedes Florentino, his daughter by a second marriage. All of the plaintiffs are
the relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his
half-brothers and the remaining twelve being his nephews as they are the children of his three half-brothers). As the
first four are his relatives within the third degree in their own right and the other twelve are such by representation,
all of them are indisputably entitled as reservatarios to the property which came from the common ancestor,
Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his
legitimate mother, Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II.

In spite of the provisions of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of
the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint on the ground that said
article is absolutely inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino survived her
brother, Apolonio III, from whom the reservable property came and her mother, Severina Faz de Leon, the widow of
her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de
Leon, is likewise her forced heiress; that when she inherited the property left at the death of her mother, together
with that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was
thereby complied with, inasmuch as the danger that the property coming from the same line might fall into the hands
of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire
the property of the deceased Apolonio III never did come into existence because there is a forced heiress who is
entitled to such property.

The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the
system of legitimate succession and that the pretension of the plaintiffs to apply said article in the instant case would
be permitting the reservable right to reduce and impair the forced legitimate which exclusively belongs to the
defendant Mercedes Florentino, in violation of the precept of article 813 of the same Code which provides that the
testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he
impose upon it any burden, condition, or substitution of any kind whatsoever, saving the provisions concerning the
usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911.

The principal question submitted to the court for decision consists mainly in determining whether they property left at
the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not invested with the character of
reservable property when it was received by his mother, Severina Faz de Leon.

The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever,
from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III without issue the same
passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable
property, in accordance with the provision of article 811 of the Code, with the object that the same should not fall
into the possession of persons other than those comprehended within the order of person other than those
comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property.
If this property was in fact clothed with the character and condition of reservable property when Severina Faz de
Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but
only the right of usufruct or of fiduciary with the necessary obligation to preserve and to deliver or return it as such
reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes
Florentino.

Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and
receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of
his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died
(reservista) in which case said reservable property losses such character.

With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living
daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her will concerning the
reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the
other reservatarios, the half brothers and nephews of her daughter Mercedes, is unlawful, null and void, inasmuch
as said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve
and to deliver same to the reservatarios, one of whom is her own daughter, Mercedes Florentino.

It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the
reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or
forms parts of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and
exclusive property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant Mercedes, could
not inherit all by operation of law and in accordance with the order of legitimate succession, because the other
relatives of the deceased Apolonio III, within the third degree, as well as herself are entitled to such reservable
property.

For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the
inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the application of article 811
of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as
she is entitled to a part only of the reservable property, there being no lawful or just reason which serves as real
foundation to disregard the right to Apolonio III's other relatives, within the third degree, to participate in the
reservable property in question. As these relatives are at present living, claiming for it with an indisputable right, we
cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be
granted equal participation with the defendant in the litigated property.

The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the property received
from the deceased son Apolonio III lost the character, previously held, of reservable property; and that the mother,
the said Severina, therefore, had no further obligation to reserve same for the relatives within the third degree of the
deceased Apolonio III, is evidently erroneous for the reason that, as has been already stated, the reservable
property, left in a will by the aforementioned Severina to her only daughter Mercedes, does not form part of the
inheritance left by her death nor of the legitimate of the heiress Mercedes. Just because she has a forced heiress,
with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received
from her deceased son, nor did same lose the character of reservable property, held before
the reservatariosreceived same.

It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of the property in
question, same did not pass into the hands of strangers. But it is likewise true that the said Mercedes is not the
onlyreservataria. And there is no reason founded upon law and upon the principle of justice why the
other reservatarios, the other brothers and nephews, relatives within the third degree in accordance with the precept
of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain
to them.

From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain on January 4,
1911, for the violation of articles 811, 968 and consequently of the Civil Code is not applicable in the instant case.

Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the forced heirs cannot
be reduced or impaired and said article is expressly respected in this decision.

However, in spite of the efforts of the appellee to defend their supposed rights, it has not been shown, upon any
legal foundation, that the reservable property belonged to, and was under the absolute dominion of, the reservista,
there being relatives within the third degree of the person from whom same came; that said property, upon passing
into the hands of the forced heiress of the deceased reservista, formed part of the legitime of the former; and that
the said forced heiress, in addition to being a reservataria, had an exclusive right to receive all of said property and
to deprive the other reservatarios, her relatives within the third degree of certain portions thereof.

Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the fruits collected,
it is not proper to grant the first for there is no evidence of any damage which can give rise to the obligation of
refunding same. As to the second, the delivery of the fruits produced by the land forming the principal part of the
reservable property, the defendants are undoubtedly in duty bound to deliver to the plaintiffs six-sevenths of the
fruits or rents of the portions of land claimed in the complaint, in the quantity expressed in paragraph 11 of the
same, from January 17, 1918, the date the complaint was filed; and the remaining seventh part should go to the
defendant Mercedes.

For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare,
as we hereby do, that the aforementioned property, inherited by the deceased Severina Faz de Leon from her son
Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within
the third degree, are entitled to six-sevenths of said reservable property; that the defendant Mercedes is entitled to
the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the
plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said portion of the land and of the quantity claimed,
from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in
the complaint is denied, without special findings as to the costs of both instances. So ordered.
G.R. No. L-34395 May 19, 1981

BEATRIZ L. GONZALES, petitioner,

vs.
COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDEZ,
ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO LEGARDA Y FERNANDEZ,
CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y
HERNANDEZ, ALEJANDRO LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA
LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO
LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT,
JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT,
EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DONA FILOMENA ROCES
DE LEGARDA, respondents.

AQUINO, J.: 1wph1. t

Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance of Manila, dismissing her
complaint for partition, accounting, reconveyance and damages and holding, as not subject to reserve troncal, the
properties which her mother Filomena Races inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The
facts are as follows:

Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died [Manila] on June 17, 1933. He was survived
by his widow, Filomena Races, and their seven children: four daughters named Beatriz, Rosario, Teresa and
Filomena and three sons named Benito, Alejandro and Jose.

On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his
daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz who were represented
by Benito F. Legarda.

Filomena Legarda y Races died intestate and without issue on March 19, 1943. Her sole heiress was her mother,
Filomena Races Vda. de Legarda.

Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she
inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following: 1wph1.t

(a) Savings deposit in the National City Bank of New York with a credit balance of P3,699.63.

(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in certain shares
of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular Life
Assurance Company and the Manila Times.

(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260, 80261 and
57512 of the Manila registry of deeds.

1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203, 48206,
48160 and 48192 of the Manila registry of deeds;

1/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now Quezon City;
1/14th of the property described in TCT No. 966 of the registry of deeds of Baguio;

1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila registry of
deeds; 1/7th of the lots and improvements at 181 San Rafael describe in TCT Nos. 50495 and
48161 of the Manila registry of deeds;

1/7th of the property described in TCT No. 48163 of the Manila registry of deeds (Streets);
 l/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of deeds
(Streets and Estero):

2/21st of the property described in TCT No. 13458 of tile registry of deeds of T0ayabas.

These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Races
succeeded her deceased daughter Filomena Legarda as co-owner of the properties held proindiviso by her other six
children.

Mrs. Legarda on March 6, 1953 executed two handwritten Identical documents wherein she disposed of the
properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose
(sixteen grandchildren in all). The document reads:1wph1.t

A mis hijos :

Dispongo que se reparta a todos mis nietos hijos de Ben, Mandu y Pepito, los bienes que he
heredado de mi difunta hija Filomena y tambien los acciones de la Destileria La Rosario'
recientemente comprada a los hermanos Values Legarda.

De los bienes de mi hija Filomena se deducira un tote de terreno que yo he 0donada a las Hijas de
Jesus, en Guipit

La case No. 181 San Rafael, la cede a mi hijo Mandu solo la casa; proque ella esta construida sobre
terreno de los hermanos Legarda Races. 1wph1.t

(Sgd.) FILOMENA ROCES LEGARDA

6 Marzo 1953

During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving children partitioned the
properties consisting of the one-third share in the estate of Benito Legarda y Tuason which the children inherited in
representation of their father, Benito Legarda y De la Paz.

Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will in the order dated
July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of Filomena
Races Vda. de Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzales, CA-
G.R. No. 43480-R, July 30,1976.

In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix, filed on May 20, 1968 a motion to
exclude from the inventory of her mother's estate the properties which she inherited from her deceased daughter,
Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena
Legarda's three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all surnamed
Legarda. That motion was opposed by the administrator, Benito F. Legarda.

Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968 an ordinary civil action against
her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a declaration that the
said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her
grandchildren to the exclusion of her three daughters and her three sons (See Paz vs. Madrigal, 100 Phil. 1085).

As already stated, the lower court dismissed the action of Mrs. Gonzales. ln this appeal under Republic Act No.
5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in
question as reservable properties under article 891 of the Civil Code.

On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court erred
in not holding that Mrs. Legarda acquired the estate of her daughter Filomena] Legarda in exchange for her conjugal
and hereditary shares in the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs.
Gonzales waived her right to the reservable properties and that her claim is barred by estoppel, laches and
prescription.

The preliminary issue raised by the private respondents as to the timeliness of Mrs. Gonzales' petition for review is a
closed matter. This Court in its resolution of December 16, 1971 denied respondents' motion to dismiss and gave
due course to the petition for review.

In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the
basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are subject
to reserva troncal that is the only legal issue to be resolved in this appeal.

The other issues raised by the defendants-appellees, particularly those involving factual matters, cannot be resolved
in this appeal. As the trial court did not pass upon those issues, there is no ruling which can be reviewed by this
Court.

The question is whether the disputed properties are reservable properties under article 891 of the Civil Code,
formerly article 811, and whether Filomena Races Vda. de Legarda could dispose of them in his will in favor of her
grandchildren to the exclusion of her six children.

Did Mrs. Legarda have the right to convey mortis causa what she inherited from her daughter Filomena to the
reservees within the third degree and to bypass the reservees in the second degree or should that inheritance
automatically go to the reservees in the second degree, the six children of Mrs. Legarda?

As will hereinafter be shown that is not a novel issue or a question of first impression. lt was resolved in Florentino
vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the doctrine in the Florentino case and
other pertinent rulings, it may be useful to make a brief discourse on the nature of reserve troncal, also called lineal,
familiar, extraordinaria o semi-troncal.

Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature of reserve
troncal which together with the reserva viudal and reversion legal, was abolished by the Code Commission to
prevent the decedent's estate from being entailed, to eliminate the uncertainty in ownership caused by the
reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the
confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy,
and is incompatible with the socialization of ownership.

The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian unrest. Moreover,
the reserves, insofar as they penalize legitimate relationship, is considered unjust and inequitable.

However, the lawmaking body, not agreeing entirely with the Code Commission, restored the reserve troncal, a legal
institution which, according to Manresa and Castan Tobenas has provoked questions and doubts that are difficult to
resolve.

Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891, which reads: 1w ph1.t

ART. 811. El ascendiente que heredare de su descendiente bienes que este hubiese adquirido por
titulo lucrative de otro ascendiente, o de un hermano, se halla obligado a reservas los que hubiere
adquirido por ministerio de la ley en favor de los parientes que eaten dentro del tercer grade y
pertenezcan a la linea de donde los bienes proceden

ART. 891. The ascendant who inherits from his descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such
property as he may have acquired by operation of law for the benefit of relatives who are within the
third degree and who belong to the line from which said property came.
In reserve troncal (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a
brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law
from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives
who are within the third degree from the deceased descendant (prepositus) and who belong to the line from which
the said property came.

So, three transmissions are involved: (I) a first transmission by lucrative title (inheritance or donation) from an
ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law
(intestate succession or legitime) from the deceased descendant (causante de la reserve) in favor of another
ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third
transmissions of the same property (in consequence of the reservation) from the reservor to the reservees
(reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the first
ascendant, brother or sister of the deceased descendant (6 Castan Tobenas Derecho Civil, Part l, 1960, 6th Ed., pp.
198-9).

If there are only two transmissions there is no reserve. Thus, where one Bonifacia Lacerna died and her properties
were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited by his half-sister,
to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article
811 (Lacerna vs. Vda. de Corcino, l l l Phil. 872).

The persons involved in reserve troncal are (1) the ascendant or brother or sister from whom the property was
received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus (prepositus) who
received the property, (3) the reservor (reservista) the other ascendant who obtained the property from the
(prepositus) by operation of law and (4) the reserves (reservatario) who is within the third degree from
theprepositus and who belongs to the (line o tronco) from which the property came and for whom the property
should be reserved by the reservor.

The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First
Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included
(Jardin vs. Villamayor, 72 Phil. 392).

The rationale of reserve troncal is to avoid "el peligro de que bienes poseidos secularmente por una familia pasen
bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras or impeder que,
por un azar de la vide personas extranas a una familia puedan adquirir bienes que sin aquel hubieran quedado en
ella (6 Castan Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203; Padura vs. Baldovino, 104 Phil. 1065).

An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295. ln that case, Pedro Sablan inherited two
parcels of land from his father Victorians. Pedro died in 1902, single and without issue. His mother, Marcelina
Edroso, inherited from him the two parcels of land.

It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and
Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina could register the land under the
Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law,
should they survive her, should be noted in the title.

In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel of conjugal land
was inherited by her daughter, Juliana Maalac. When Juliana died intestate in 1920, said one-half share was
inherited by her father, Anacleto Maalac who owned the other one-half portion.

Anacleto died intestate in 1942, survived by his second wife and their six children. lt was held that the said one-half
portion was reservable property in the hands of Anacleto Maalac and, upon his death, should be inherited by
Leona Aglibot and Evarista Aglibot, sisters of Maria and materna aunts of Juliana Maalac, who belonged to the line
from which said one-half portion came (Aglibot vs. Maalac 114 Phil. 964).

Other illustrations of reserva troncal are found in Florentino vs Florentino, 40 Phil. 480; Nieva and Alcala vs. Alcala
and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita 46 Phil. 551; Lunsod vs. Ortega, 46 Phil.
664;Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno 52 Phil. 322; Velayo
Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G. 1784.

The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from
which the property came and upon whom the property last revolved by descent. He is called the prepositus(Cabardo
vs. Villanueva. 44 Phil. 186, 190).

In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo. When Cornelia died,
her estate passed to her father, Lorenzo Abordo. ln his hands, the property was reservable property. Upon the death
of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest
relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their
parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil.
480).

Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the
representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065).

Reserva troncal contemplates legitimate relationship. illegitimate relationship and relationship by affinity are
excluded.

Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as
donacion and succession (Cabardo vs. Villanueva, 44 Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th Ed.,
195 l, p. 360).

The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the
survival, at the time of his death, of relatives within the third degree belonging to the line from which the property
came
(Sienes vs. E Esparcia l l l Phil. 349, 353).

The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that
such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the reservable
property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership
of the reservor. The transferee's rights are revoked upon the survival of the reservees at the time of the death of the
reservor but become indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349,
353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480:
Director of Lands vs. Aguas, 63 Phil. 279.)

The reservor's title has been compared with that of the vendee a retro in a pacta de retro sale or to a fideicomiso
conditional.

The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of
the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees. lf there
are no reservees at the time of the reservor's death, the transferee's title would become absolute. (Lunsod vs.
Ortega, 46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Mono vs. Nequia 93 Phil. 120).

On the other hand, the reserves has only an inchoate, expectant or contingent right. His expectant right would
disappear if he predeceased the reservor. lt would become absolute should the reservor predecease the reserves.

The reserves cannot impugn any conveyance made by the reservor but he can require that the reservable character
of the property be recognized by the purchaser (Riosa vs. Rocha 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-
3; Gueco vs. Lacson, 118 Phil. 944).

There is a holding that the renunciation of the reservee's right to the reservable property is illegal for being a
contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96).
And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The
condition is that the alienation shall transfer ownership to the vendee only if and when the reserves survives the
reservor (Sienes vs. Esparcia, 111 Phil. 349, 353). 1w ph1.t

The reservatario receives the property as a conditional heir of the descendant (prepositus) said
property merely reverting to the line of origin from which it had temporarily and accidentally stayed
during the reservista's lifetime. The authorities are all agreed that there being reservatarios that
survive the reservists, the latter must be deemed to have enjoyed no more than a than interest in the
reservable property. (J. J. B. L. Reyes in Cane vs. Director of Lands, 105 Phil. l5.)

Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the
property, can already assert the right to prevent the reservista from doing anything that might
frustrate their reversionary right, and, for this purpose, they can compel the annotation of their right
in the registry of property even while the (reservista) is alive (Ley Hipotecaria de Ultramar, Arts. 168,
199; Edroso vs. Sablan, 25 Phil. 295).

This right is incompatible with the mere expectancy that corresponds to the natural heirs of the
reservista lt is likewise clear that the reservable property is no part of the estate of the reservista who
may not dispose of them (it) by will, so long as there are reservatarios existing (Arroyo vs. Gerona,
58 Phil. 226, 237).

The latter, therefore, do not inherit from the reservista but from the descendant (prepositus) of whom
the reservatarios are the heirs mortis causa, subject to the condition that they must survive
thereservista. (Sanchez Roman, Vol. VI Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed.,
pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104
Phil. 1065).

Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by
operation of law, the owner of the reservable property." (Cane vs. Director of Lands, 105 Phil. l5.)

In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda.
Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the reservees
or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda.

So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by
will or mortis causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of the
reservees in the second degree, her three daughters and three sons. As indicated at the outset, that issue is
alreadyres judicata or cosa juzgada.

We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable
properties which she had inherited from her daughter Filomena because the reservable properties did not form part
of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of
the reservable properties as long as the reservees survived the reservor.

As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from
theprepositus, not from the reservor.

Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the
third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not select the
reservees to whom the reservable property should be given and deprive the other reservees of their share therein.

To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the
reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a glaring
violation of article 891. That testamentary disposition cannot be allowed.
We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar
case, where it was ruled: 1wph1.t

Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together
with his own property in favor of another of his descendants as forced heir, forms no part of the
latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be
reservable, the heir receiving the same as an inheritance from his ascendant has the strict obligation
of its delivery to the relatives, within the third degree, of the predecessor in interest (prepositus),
without prejudicing the right of the heir to an aliquot part of the property, if he has at the same time
the right of areservatario (reserves).

ln the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two
children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio III death in
1891, his properties were inherited by his mother, Severina, who died in 1908. ln her will, she instituted her daughter
Mercedes as heiress to all her properties, including those coming from her deceased husband through their son,
Apolonio III.

The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the
deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the reservable
properties, which Severina de Leon had inherited from Apolonio III which the latter had inherited from his father
Apolonio II and which Severina willed to her daughter Mercedes.

Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in Severina's will in
favor of Mercedes only. That theory was sustained by this Court.

It was held that the said properties, being reservable properties, did not form part of Severina's estate and could not
be inherited from her by her daughter Mercedes alone.

As there were seven reservees, Mercedes was entitled, as a reserves, to one-seventh of the properties. The other
six sevenths portions were adjudicated to the other six reservees.

Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine of
theFlorentino case. That doctrine means that as long as during the reservor's lifetime and upon his death there are
relatives within the third degree of the prepositus regardless of whether those reservees are common descendants
of the reservor and the ascendant from whom the property came, the property retains its reservable character. The
property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reserves to
whom the reservable property should be awarded.

The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives within the third
degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged to
reserve is irrelevant and sans binding force in the light of the ruling in the Florentino case.

It is contended by the appellees herein that the properties in question are not reservable properties because only
relatives within the third degree from the paternal line have survived and that when Mrs. Legarda willed the said
properties to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda and who belong to the
paternal line, the reason for the reserva troncal has been satisfied: "to prevent persons outside a family from
securing, by some special accident of life, property that would otherwise have remained therein".

That same contention was advanced in the Florentino case where the reservor willed the reservable properties to
her daughter, a full-blood sister of the prepositus and ignored the other six reservors, the relatives of the half-blood
of the prepositus.

In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter
does not form part of the reservor's estate nor of the daughter's estate but should be given to all the seven
reservees or nearest relatives of the prepositus within the third degree.
This Court noted that, while it is true that by giving the reservable property to only one reserves it did not pass into
the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of the reservees
and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in
the reservable property (pp. 894-5).

Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in
question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The said
properties, by operation of Article 891, should go to Mrs. Legarda's six children as reservees within the second
degree from Filomena Legarda.

It should be repeated that the reservees do not inherit from the reservor but from the reservor but from the
prepositus, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the
reservor (Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).

The trial court said that the disputed properties lost their reservable character due to the non-existence of third-
degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the
Legarda family, "except third-degree relatives who pertain to both" the Legarda and Races lines.

That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the
time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the
second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said
properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with
the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate. (Cane vs. Director of
Lands, 105 Phil. l, 4).

WHEREFORE, the lower court's decision is reversed and set aside. lt is hereby adjudged that the properties
inherited by Filomena Roces Vda. de Legarda from her daughter Filomena Legarda, with all the fruits and
accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose,
all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda, who died in
1969 and 1973, respectively, should pertain to their respective heirs. Costs against the private respondents.

SO ORDERED.
G.R. No. L-28032 September 24, 1986

FRANCISCA TIOCO DE PAPA, MANUEL TIOCO, NICOLAS TIOCO and JANUARIO PAPA, plaintiffs-appellees,
vs.
DALISAY TONGKO CAMACHO, PRIMO TONGKO and GODOFREDO CAMACHO, defendants-appellants.

NARVASA, J.:

This case, which involves the application of Article 891 of the Civil Code on reserva troncal, was submitted for
judgment in the lower court by all the parties on the following "Stipulation of Facts and Partial Compromise":

1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the plaintiffs, Francisco Tioco
de Papa, Manuel Tioco and Nicolas Tioco, are legitimate relatives, plaintiffs being said defendant's
grandaunt and granduncles.

2. They stipulate that plaintiffs and defendant Dalisay D. Tongo-Camacho have as a common
ancestor the late Balbino Tioco (who had a sister by the name of Romana Tioco), father of plaintiffs
and great grandfather of defendant. The family relationship of the parties is as shown in the chart
attached hereto as Annex 'A' and made an integral part of this stipulation.

3. They stipulate that Romana Tioco during her lifetime gratuitously donated four (4) parcels of land
to her niece Toribia Tioco (legitimate sister of plaintiffs), which parcels of land are presently covered
by Transfer Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds of Manila,
copies of which are attached to this stipulation as Annexes 'B', 'B-l', and 'B-2'.

4. They stipulate that Toribia Tioco died intestate in l9l5, survived by her husband, Eustacio Dizon,
and their two legitimate children, Faustino Dizon and Trinidad Dizon (mother of defendant Dalisay D,
Tongko-Camacho) and leaving the afore-mentioned four (4) parcels of land as the inheritance of her
said two children in equal pro-indiviso shares.

5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his legitimate children by his
wife Marciana Felix (among them plaintiffs) and legitimate grandchildren Faustino Dizon and
Trinidad Dizon. In the partition of his estate, three (3) parcels of land now covered by Transfer
Certificates of Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of which are
attached hereto as Annexes 'C' and 'C-l', were adjudicated as the inheritance of the late Toribia
Tioco, but as she had predeceased her father, Balbino Tioco, the said three (3) parcels of land
devolved upon her two legitimate children Faustino Dizon and Trinidad Dizon in equal pro-indiviso
shares.

6. They stipulate that in 1937, Faustino Dizon died intestate, single and without issue, leaving his
one-half (1/2) pro-indiviso share in the seven (7) parcels of land above-mentioned to his father,
Eustacio Dizon, as his sole intestate heir, who received the said property subject to a reserva troncal
which was subsequently annotated on the Transfer Certificates of Title Annexes 'B', 'B-l', 'B-2', 'C'
and 'C-l'.

7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her rights and interests in
the parcels of land abovementioned were inherited by her only legitimate child, defendant Dalisay D.
Tongko-Camacho, subject to the usufructuary right of her surviving husband, defendant Primo
Tongko.

8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate, survived his only legitimate
descendant, defendant Dalisay D. Tongko-Camacho.

9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns one-half (1/2) of all the
seven (7) parcels of land abovementioned as her inheritance from her mother, Trinidad Dizon-
Tongko.
 10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice, the other half of the said
seven (7) parcels of land abovementioned by virtue of the reserva troncal imposed thereon upon the
death of Faustino Dizon and under the laws on intestate succession; but the plaintiffs, also upon
legal advice, oppose her said claim because they claim three-fourths (3/4) of the one-half pro-
indiviso interest in said parcel of land, which interest was inherited by Eustacio Dizon from Faustino
Dizon, or three-eights (3/8) of the said parcels of land, by virtue of their being also third degree
relatives of Faustino Dizon.

11. The parties hereby agree to submit for judicial determination in this case the legal issue of
whether defendant Dalisay D. Tongko-Camacho is entitled to the whole of the seven (7) parcels of
land in question, or whether the plaintiffs, as third degree relatives of Faustino Dizon are
reservatarios (together with said defendant) of the one-half pro-indiviso share therein which was
inherited by Eustacio Dizon from his son Faustino Dizon, and entitled to three-fourths (3/4) of said
one-half pro-indiviso share, or three eights (3/8) of said seven (7) parcels of land, and, therefore, to
three-eights (3/8) of the rentals collected and to be collected by defendant Dalisay P. Tongko
Camacho from the tenants of said parcels of land, minus the expenses and/or real estate taxes
corresponding to plaintiffs' share in the rentals.

12. In view of the fact that the parties are close blood relatives and have acted upon legal advice in
pursuing their respective claims, and in order to restore and preserve harmony in their family
relations, they hereby waive all their claims against each other for damages (other than legal interest
on plaintiffs' sore in the rentals which this Honorable Court may deem proper to award), attorney's
fees and expenses of litigation which shall be borne by the respective parties. 1

On the basis thereof, the lower Court declared the plaintiffs Francisco Tioco, Manuel Tioco and Nicolas Tioco, as
well as the defendant Dalisay Tongko-Camacho, entitled, as reservatarios, to one-half of the seven parcels of land
in dispute, in equal proportions, rendering judgment as follows:

... . Resolving, therefore, the legal question submitted by the parties, the court holds that plaintiffs
Francisca Tioco, Manuel Tioco and Nicolas Tioco are entitled to three-fourths (3/4) of one-half (1/2)
pro-indiviso shares or three-eights (3/8) of the seven (7) parcels of land involved in this action.
Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals collected and to be
collected by the defendant Dalisay D. Tioco-Camacho from the tenants of the said parcels of land,
minus the expenses and/or real estate taxes corresponding to plaintiffs' share in the rentals.

IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived all their claims
against each other for damages including attorney's fees and expenses of litigation other than the
legal interests on plaintiffs' share in the rentals, the court renders judgment adjudging the plaintiffs
entitled to three-eights (3/8) of the seven (7) parcels of land described in Transfer Certificate of Title
Nos. T-64165, T-64166, T-64167, T-16546 and T-16554 of the Registry of Deeds of Manila. The
defendant Dalisay D. Tioco-Camacho is hereby ordered to make an accounting of all rents received
by her on the properties involved in this action for the purpose of determining the legal interests
which should be paid to the plaintiffs on their shares in the rentals of the property in question.

SO ORDERED. 2

Not satisfied, the defendant appealed to this Court.

The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the lower Court, all relatives of
the praepositus within the third degree in the appropriate line succeed without distinction to the reservable property
upon the death of the reservista, as seems to be implicit in Art. 891 of the Civil Code, which reads:

Art. 891. The ascendant who inherits from his descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such
property as he may have acquired by operation of law for the benefit of relatives who are within the
third degree and who belong to the line from which said property came. (811),
or, as asserted by the defendant-appellant, the rights of said relatives are subject to, and should be determined by,
the rules on intestate succession.

That question has already been answered in Padura vs. Baldovino, 3 where the reservatario was survived by eleven nephews and
nieces of the praepositus in the line of origin, four of whole blood and seven of half blood, and the claim was also made that all eleven were entitled to the
reversionary property in equal shares. This Court, speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be controlling, and ruled that
the nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with Article 1006
of the Civil Code. Said the Court:

The issue in this appeal may be formulated as follows: In a case of reserva troncal, where the
onlyreservatarios (reservees) surviving the reservista, and belonging to the fine of origin, are
nephews of the descendant (prepositus), but some are nephews of the half blood and the others are
nephews of the whole blood, should the reserved properties be apportioned among them equally, or
should the nephews of the whole blood take a share twice as large as that of the nephews of the half
blood?

xxx xxx xxx

The case is one of first impression and has divided the Spanish commentators on the subject. After
mature reflection, we have concluded that the position of the appellants is correct. The reserva
troncalis a special rule designed primarily to assure the return of the reservable property to the third
degree relatives belonging to the line from which the property originally came, and avoid its being
dissipated into and by the relatives of the inheriting ascendant (reservista).

xxx xxx xxx

The stated purpose of the reserva is accomplished once the property has devolved to the specified
relatives of the line of origin. But from this time on, there is no further occasion for its application. In
the relations between one reservatario and another of the same degree there is no call for applying
Art. 891 any longer; wherefore, the respective share of each in the reversionary property should be
governed by the ordinary rules of intestate succession. In this spirit the jurisprudence of this Court
and that of Spain has resolved that upon the death of the ascendant reservista, the reservable
property should pass, not to all the reservatarios as a class but only to those nearest in degree to the
descendant (prepositus), excluding those reservatarios of more remote degree (Florentino vs.
Florentino, 40 Phil. 489-490; T.S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March 1905).
And within the third degree of relationship from the descendant (prepositus), the right of
representation operates in favor of nephews (Florentino vs. Florentino, supra).

Following the order prescribed by law in legitimate succession when there are relatives of the
descendant within the third degree, the right of the nearest relative, called reservatarios over the
property which the reservista (person holding it subject to reservation) should return to him, excludes
that of the one more remote. The right of representation cannot be alleged when the one claiming
same as a reservatario of the reservable property is not among the relatives within the third degree
belonging to the line from which such property came, inasmuch as the right granted by the Civil
Code in Article 811 is in the highest degree personal and for the exclusive benefit of designated
persons who are within the third degree of the person from whom the reservable property came.
Therefore, relatives of the fourth and the succeeding degrees can never be considered as
reservatarios, since the law does not recognize them as such.

In spite of what has been said relative to the right of representation on the part of one alleging his
right as reservatario who is not within the third degree of relationship, nevertheless there is right of
representation on the part of reservatarios who are within the third degree mentioned by law, as in
the case of nephews of the deceased person from whom the reservable property came. ... .
(Florentino vs. Florentino, 40 Phil. 480, 489-490) (Emphasis supplied) See also Nieva and Alcala vs.
Alcala and de Ocampo, 41 Phil. 915)
 Proximity of degree and right of representation are basic principles of ordinary intestate succession;
so is the rule that whole blood brothers and nephews are entitled to a share double that of brothers
and nephews of half blood. If in determining the rights of the reservatarios inter se, proximity of
degree and the right of representation of nephews are made to apply, the rule of double share for
immediate collaterals of the whole blood should be likewise operative.

In other words, the reserva troncal merely determines the group of relatives reservatarios to whom
the property should be returned; but within that group, the individual right to the property should be
decided by the applicable rules of ordinary intestate succession, since Art. 891 does not specify
otherwise. This conclusion is strengthened by the circumstance that the reserva being an
exceptional case, its application should be limited to what is strictly needed to accomplish the
purpose of the law. As expressed by Manresa in his Commentaries (Vol. 6, 6th Ed., p. 250):

... creandose un verdadero estado excepcional del derecho, no debe ampliarse, sino mas bien
restringirse, el alcance del precepto, manteniendo la excepcion mientras fuere necesaria y estuviese
realmente contenida en la disposicion, y aplicando las reglas generales y fundamentales del Codigo
en materia de sucesi6n, en aquehos extremes no resueltos de un modo expreso, y que quedan
fuera de la propia esfera de accion de la reserva que se crea.

The restrictive interpretation is the more imperative in view of the new Civil Code's hostility to
successional reservas and reversions, as exemplified by the suppression of the reserva viudal and
thereversion legal of the Code of 1889 (Art. 812 and 968-980).

Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appellees
must be held without any right thereto because, as aunt and uncles, respectively, of Faustino Dizon
(thepraepositus), they are excluded from the succession by his niece, the defendant-appellant, although they are
related to him within the same degree as the latter. To this effect is Abellana vs. Ferraris 4 where Arts. 1001, 1004, 1005 and
1009 of the Civil Code were cited and applied:

Nevertheless, the trial court was correct when it held that, in case of intestacy nephews and nieces
of the de cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the
succession. This is readily apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of
the Philippines, that provide as follows:

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter
shall be entitle to one-half of the inheritance and the brothers and sisters or their children to the other
half.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in
equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and nieces who are the
children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita,
and the latter per stirpes.

Art. 1009. Should there be neither brothers nor sisters, nor children of brothers and sisters, the other
collateral relatives shall succeed to the estate.

Under the last article (1009), the absence of brothers, sisters, nephews and nieces of the decedent
is a precondition to the other collaterals (uncles, cousins, etc.) being called to the succession. This
was also and more clearly the case under the Spanish Civil Code of 1889, that immediately
preceded the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the Code of 1889
prescribed as follows:
 Art. 952. In the absence of brothers or sisters and of nephews or nieces, children of the former,
whether of the whole blood or not, the surviving spouse, if not separated by a final decree of divorce
shall succeed to the entire estate of the deceased.

Art. 954. Should there be neither brothers nor sisters, nor children of brothers or sisters, nor a
surviving spouse, the other collateral relatives shall succeed to the estate of deceased.

The latter shall succeed without distinction of lines or preference among them by reason of the
whole blood.

It will be seen that under the preceding articles, brothers and sisters and nephews and nieces
inheritedab intestato ahead of the surviving spouse, while other collaterals succeeded only after the
widower or widow. The present Civil Code of the Philippines merely placed the spouse on a par with
the nephews and nieces and brothers and sisters of the deceased, but without altering the preferred
position of the latter vis a vis the other collaterals.

xxx xxx xxx

We, therefore, hold, and so rule, that under our laws of succession, a decedent's uncles and aunts
may not succeed ab intestato so long as nephews and nieces of the decedent survive and are willing
and qualified to succeed. ...

This conclusion is fortified by the observation, also made in Padura, supra, that as to the reservable property,
thereservatarios do not inherit from the reservista, but from the descendant praepositus:

... . It is likewise clear that the reservable property is no part of the estate of the reservista, who may
not dispose of it by will, as long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237).
The latter, therefore, do not inherit from the reservista, but from the descendant prepositus, of whom
the reservatarios are the heirs mortis causa, subject to the condition that they must survive
thereservista. (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed.,
pp. 274, 310) ... .

To the same effect is Cano vs, Director of Lands 5, where it was ruled that intestacy proceedings to determine the right of a reservatario are not
necessary where the final decree of the land court ordering issuance of title in the name of the reservista over property subject to reserva troncal Identifies
thereservatario and there are no other claimants to the latter's rights as such:

The contention that an intestacy proceeding is still necessary rests upon the assumption that
thereservatario win succeed in, or inherit, the reservable property from the reservista. This is not
true. Thereservatario is not the reservista's successor mortis causa nor is the reservable property
part of thereservista's estate; the reservatario receives the property as a conditional heir of the
descendant (prepositus), said property merely reverting to the line of origin from which it had
temporarily and accidentally strayed during the reservista's lifetime. The authorities are all agreed
that there beingreservatarios that survive the reservista, the matter must be deemed to have enjoyed
no more than a life interest in the reservable property.

It is a consequence of these principles that upon the death of the reservista, the reservatario nearest
to the prepositus (the appellee in this case) becomes, automatically and by operation of law, the
owner of the reservable property. As already stated, that property is no part of the estate of
the reservista, and does not even answer for the debts of the latter. ... .

Had the reversionary property passed directly from the praepositus, there is no doubt that the plaintiffs-appellees
would have been excluded by the defendant-appellant under the rules of intestate succession. There is no reason
why a different result should obtain simply because "the transmission of the property was delayed by the
interregnum of the reserva;" 6 i.e., the property took a "detour" through an ascendant-thereby giving rise to the reservation before its transmission to
thereservatario.
Upon the stipulated facts, and by virtue of the rulings already cited, the defendant-appellant Dalisay Tongko-
Camacho is entitled to the entirety of the reversionary property to the exclusion of the plaintiffs-appellees.

WHEREFORE, the appealed judgment of the lower Court is reversed and set aside and the complaint is dismissed,
with costs against the plaintiffs-appellants.

SO ORDERED.
G.R. No. L-26270 October 30, 1969

BONIFACIA MATEO, ET AL., petitioners,

vs.
GERVASIO LAGUA, ET AL., respondents.

REYES, J.B.L., J.:

This is a petition for review of the decision of the Court of Appeals (In CA-G.R. Nos. 30064-R and 30065-R), raising
as only issue the correctness of the appellate court's reduction of a donation propter nuptias, for being inofficious.

The established facts of this case are as follows:

Cipriano Lagua was the original registered owner of 3 parcels of land situated in Asingan, Pangasinan, referred to
as Lot No. 998, with an area of 11,080 sq.m., more or less and covered by O.C.T. No. 362; Lot No. 6541, with an
area of 808 sq.m., more or less, covered by O.C.T. No. 6618; and Lot No. 5106, with an area of 3,303 sq.m.,
covered by O.C.T. No. 8137. Sometime in 1917, Lagua and his wife Alejandra Dumlao, in a public instrument,
donated Lots 998 and 6541 to their son Alejandro Lagua, in consideration of the latter's marriage to Bonifacia
Mateo. The marriage was celebrated on 15 May 1917, and thereafter, the couple took possession of the properties,
but the Certificates of Title remained in the donor's name.

In 1923, the son, Alejandro, died. His widow, Bonifacia Mateo, and her infant daughter lived with her father-in-law,
Cipriano Lagua, who then undertook the farming of the donated lots. It seems that at the start, Cipriano Lagua was
giving to Bonifacia the owner's share of the harvest from the land. In 1926, however, Cipriano refused to deliver the
said share, thus prompting Bonifacia to resort to the Justice of the Peace Court of Asingan, Pangasinan, from where
she obtained a judgment awarding to her possession of the two lots plus damages.

On 31 July 1941, Cipriano Lagua, executed a deed of sale of the same two parcels of land in favor of his younger
son, Gervasio. This sale notwithstanding, Bonifacia Mateo was continuously given the owner's share of the harvest
until 1956, when it was altogether stopped. It was only then that Bonifacia Mateo learned of the sale of the lots to
her brother-in-law, who had the sale in his favor registered only on 22 September 1955. As a consequence, TCT
Nos. 19152 and 19153 of the Register of Deeds of Pangasinan were issued to Gervasio.

Bonifacia Mateo and her daughter, Anatalia, assisted by her husband, Luis Alcantara, went to the Court of First
Instance of Pangasinan (Civil Case No. T-339), seeking annulment of the deed of sale in favor of Gervasio Lagua
and for recovery of possession of the properties. On 3 January 1957, judgment was rendered in the case

... declaring the sale executed by Cipriano Lagua in favor of the other defendants, Gervasio Lagua and
Sotera Casimero, as null and void and non-existent; ordering the Register of Deeds for the Province of
Pangasinan, to cancel Transfer Certificates of Title Nos. 19152 and 19153; condemning the defendants to
pay jointly and severally to the plaintiffs the sum of P200.00; ordering the defendants Gervasio Lagua and
Sotera Lagua to vacate and deliver the possession over the two parcels of land to the plaintiffs, and to pay
the costs of this suit.

The decision became final, and Bonifacia Mateo, and her daughter, Anatalia Lagua, were installed in possession of
the land.

On 18 August 1957, the spouses Gervasio Lagua and Sotera Casimero commenced in the Justice of the Peace
Court of Asingan, Pangasinan, an action against Bonifacia Mateo and her daughter for reimbursement of the
improvements allegedly made by them on Lots 998 and 6541, plus damages. Dismissed by the Justice of the Peace
Court for being barred by the judgment in Civil Case No. T-339, therein plaintiffs appealed to the Court of First
Instance of Pangasinan where the case was docketed as Civil Case No. T-433. At about the same time, another
case was filed, this time by Gervasio Lagua and Cipriano Lagua, for annulment of the donation of the two lots,
insofar as one-half portion thereof was concerned (civil Case No. T-442). It was their claim that in donating the two
lots, which allegedly were all that plaintiff Cipriano Lagua owned, said plaintiff not only neglected leaving something
for his own support but also prejudiced the legitime of his forced heir, plaintiff Gervasio Lagua.
Being intimately related, the two cases were heard jointly. On November 12, 1958, while the cases were pending
final resolution, plaintiff Cipriano Lagua died. On 23 December 1960, the court rendered a single decision dismissing
Civil Case No. T-433 for lack of cause of action, plaintiffs spouses Gervasio Lagua and Sotera Casimero having
been declared possessors in bad faith in Civil Case No. T-339 and, therefore, not entitled to any reimbursement of
the expenses and improvements put up by them on the land. The other suit, Civil Case No. T-442, was, likewise,
dismissed on the ground of prescription, the action to annul the donation having been brought only in 1958, or after
the lapse of 41 years. Defendants' counterclaims were similarly dismissed although they were awarded attorneys'
fees in the sum of P150.00.

Plaintiffs appealed the decision to the Court of Appeals (CA-G.R. Nos. 30064 and 30065-R). Said tribunal, on 18
March 1966, affirmed the ruling of the trial court in Civil Case No. T-433 denying plaintiffs' claim for reimbursement
of the improvements said to have been made on the land. In regard to the annulment case (C.F.I. No. T-442),
however, the Court of Appeals held that the donation to Alejandro Lagua of the 2 lots with a combined area of
11,888 square meters execeeded by 494.75 square meters his (Alejandro's) legitime and the disposable portion that
Cipriano Lagua could have freely given by will, and, to the same extent prejudiced the legitime of Cipriano's other
heir, Gervasio Lagua. The donation was thus declared inofficious, and defendants-appellees were ordered to
reconvey to plaintiff Gervasio Lagua a portion of 494.15 square meters to be taken from any convenient part of the
lots. The award of attorneys' fees to the defendants was also eliminated for lack of proper basis.

Bonifacia Mateo, et al., then resorted to this Court, assailing the decision of the Court of Appeals insofar as it
ordered them to reconvey a portion of the lots to herein respondent Gervasio Lagua. It is petitioners' contention that
(1) the validity of the donation proper nuptias having been finally determined in Civil Case No. T-339, any question
in derogation of said validity is already barred; (2) that the action to annul the donation, filed in 1958, or 41 years
after its execution, is abated by prescription; (3) that a donation proper nuptias is revocable only for any of the
grounds enumerated in Article 132 of the new Civil Code, and inofficiousness is not one of thorn; and (4) that in
determining the legitime of the Lagua brothers in the hereditary estate of Cipriano Lagua, the Court of Appeals
should have applied the provisions of the Civil Code of 1889, and not Article 888 of the new Civil Code.

Petitioners' first two assigned errors, it may be stated, are non-contentious issues that have no bearing in the actual
controversy in this case. All of them refer to the validity of the donation a matter which was definitively settled in
Civil Case No. T-339 and which, precisely, was declared by the Court of Appeals to be "beyond the realm of judicial
inquiry." In reality, the only question this case presents is whether or not the Court of Appeals acted correctly in
ordering the reduction of the donation for being inofficious and in ordering herein petitioners to reconvey to
respondent Gervasio Lagua an unidentified 494.75 square-meter portion of the donated lots.

We are in accord with the Court of Appeals that Civil Case No. 442 is not one exclusively for annulment or
revocation of the entire donation, but of merely that portion thereof allegedly trenching on the legitime of respondent
Gervasio Lagua;1 that the cause of action to enforce Gervasio's legitime, having accrued only upon the death of his
father on 12 November 1958, the dispute has to be governed by the pertinent provisions of the new Civil Code; and
that a donation proper nuptias property may be reduced for being inofficious. Contrary to the views of appellants
(petitioners), donations proper nuptias (by reason of marriage) are without onerous consideration, the marriage
being merely the occasion or motive for the donation, not its causa. Being liberalities, they remain subject to
reduction for inofficiousness upon the donor's death, if they should infringe the legitime of a forced heir.2

It is to be noted, however, that in rendering the judgment under review, the Court of Appeals acted on several
unsupported assumptions: that the three (3) lots mentioned in the decision (Nos. 998, 5106 and 6541) were
the onlyproperties composing the net hereditary estate of the deceased Cipriano Lagua; that Alejandro Lagua and
Gervasio Lagua were his only legal heirs; that the deceased left no unpaid debts, charges, taxes, etc., for which the
estate would be answerable.3 In the computation of the heirs' legitime, the Court of Appeals also considered only the
area, not the value, of the properties.

The infirmity in the above course of action lies in the fact that in its Article 908 the new Civil Code specifically
provides as follows:

ART. 908. To determine the legitime, the value of the property left at the death of the testator shall be
considered, deducting all debts, and charges, which shall not include those imposed in the will.
 To the net value of the hereditary estate, shall be added the value of all donations by the testator that are
subject to collation, at the time he made them.

In other words, before any conclusion about the legal share due to a compulsory heir may be reached, it is
necessary that certain steps be taken first. The net estate of the decedent must be ascertained, by deducting an
payable obligations and charges from the value of the property owned by the deceased at the time of his death;
then, all donations subject to collation would be added to it. With the partible estate thus determined, the legitimes of
the compulsory heir or heirs can be established; and only thereafter can it be ascertained whether or not a donation
had prejudiced the legitimes. Certainly, in order that a donation may be reduced for being inofficious, there must be
proof that the value of the donated property exceeds that of the disposable free portion plus the donee's share as
legitime in the properties of the donor.4 In the present case, it can hardly be said that, with the evidence then before
the court, it was in any position to rule on the inofficiousness of the donation involved here, and to order its reduction
and reconveyance of the deducted portion to the respondents.

FOR THE FOREGOING CONSIDERATIONS, the decision of the Court of Appeals, insofar as Civil Case No. 442 of
the court a quo is concerned, is hereby set aside and the trial court's order of dismissal sustained, without prejudice
to the parties' litigating the issue of inofficiousness in a proper proceeding, giving due notice to all persons interested
in the estate of the late Cipriano Lagua. Without costs.
G.R. No. L-65800 October 3, 1986

PARTENZA LUCERNA VDA. DE TUPAS, petitioner-appellant,

vs.
BRANCH XLIII of the HON. REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL, respondent, and TUPAS
FOUNDATION, INC., private respondent-appellee.

NARVASA, J.:

Involved in this appeal is the question of whether or not a donation inter vivos by a donor now deceased is
inofficious and should be reduced at the instance of the donor's widow.

Epifanio R. Tupas died on August 20, 1978 in Bacolod City, childless, leaving his widow, Partenza Lucerna, as his
only surviving compulsory heir. He also left a win dated May 18, 1976, which was admitted to probate on September
30, 1980 in Special Proceedings No. 13994 of the Court of First Instance of Negros Occidental. Among the assets
listed in his will were lots Nos. 837, 838 and 839 of the Sagay Cadastre, admittedly his private capital. However, at
the time of his death, these lots were no longer owned by him, he having donated them the year before (on August
2, 1977) to the Tupas Foundation, Inc., which had thereafter obtained title to said lots.

Claiming that said donation had left her practically destitute of any inheritance, Tupas' widow brought suit against
Tupas Foundation, Inc. in the same Court of First Instance of Negros Occidental (docketed as Civil Case No. 16089)
to have the donation declared inofficious insofar as it prejudiced her legitime, therefore reducible " ... by one-half or
such proportion as ... (might be deemed) justified ... and " ... the resulting deduction ... " restored and conveyed or
delivered to her. The complaint also prayed for attorney's fees and such other relief as might be proper.

The Trial Court did not see things her way. Upon the facts above stated, on which the parties stipulated, 1 said Court
dismissed the complaint for lack of merit, rejecting her claim on several grounds, viz.:

... (1) Article 900 relied upon by plaintiff is not applicable because the properties which were
disposed of by way of donation one year before the death of Epifanio Tupas were no longer part of
his hereditary estate at the time of his death on August 20, 1978; (2) the donation properties were
Epifanio's capital or separate estate; and (3) Tupas Foundation, Inc. being a stranger and not a
compulsory heir, the donation inter vivos made in its favor was not subject to collation under Art. 106
1, C.C. 2

The Trial Court is in error on all counts and must be reversed.

A person's prerogative to make donations is subject to certain limitations, one of which is that he cannot give by
donation more than he can give by will (Art. 752, Civil Code). 3 If he does, so much of what is donated as exceeds what
he can give by will is deemed inofficious and the donation is reducible to the extent of such excess, though without
prejudice to its taking effect in the donor's lifetime or the donee's appropriating the fruits of the thing donated (Art. 771,
Civil Code). Such a donation is, moreover, collationable that is, its value is imputable into the hereditary estate of the
donor at the tune of his death for the purpose of determining the legitime of the forced or compulsory heirs and the
freely disposable portion of the estate. This is true as well of donations to strangers as of gifts to compulsory heirs,
although the language of Article 1061 of the Civil Code would seem to limit collation to the latter class of donations. And
this has been held to be a long-established rule in Liguez vs. Honorable Court of Appeals, et al., 4 where this Court said:

... Hence, the forced heirs are entitled to have the donation set aside in so far as inofficious: i.e., in
excess of the portion of free disposal (Civil Code of 1889, Articles 636, 645), computed as provided
in Articles 818 and 819, and bearing in mind that collationable gifts' under Article 818 should include
gifts made not only in favor of the forced heirs, but even those made in favor of strangers, as
decided by the Supreme Court of Spain in its decision of 4 May 1899 and 16 June 1902. So that in
computing the legitimes, the value of the property donated to herein appellant, Conchita Liguez,
should be considered part of the donor's estate. Once again, only the court of origin has the requisite
data to determine whether the donation is inofficious or not. 5
The fact, therefore, that the donated property no longer actually formed part of the estate of the donor at the time of
his death cannot be asserted to prevent its being brought to collation. Indeed, it is an obvious proposition that
collation contemplates and particularly applies to gifts inter vivos. 6 The further fact that the lots donated were admittedly capital or
separate property of the donor is of no moment, because a claim of inofficiousness does not assert that the donor gave what was not his, but that he gave more
than what was within his power to give.

Since it is clear that the questioned donation is collationable and that, having been made to a stranger (to the donor)
it is, by law 7 chargeable to the freely disposable portion of the donor's estate, to be reduced insofar as inofficious, i.e., it exceeds said portion and thus
impairs the legitime of the compulsory heirs, in order to find out whether it is inofficious or not, recourse must be had to the rules established by the Civil Code for
the determination of the legitime and, by extension, of the disposable portion. These rules are set forth in Articles 908, 909 and 910 of the Code, on the basis of
which the following step-by-step procedure has been correctly outlined:

(1) determination of the value of the property which remains at the time of the testator's death;

(2) determination of the obligations, debts, and charges which have to be paid out or deducted from
the value of the property thus left;

(3) the determination of the difference between the assets and the liabilities, giving rise to the
hereditary estate;

(4) the addition to the net value thus found, of the value, at the time they were made, of donations
subject to collation; and

(5) the determination of the amount of the legitimes by getting from the total thus found the portion
that the law provides as the legitime of each respective compulsory heir. 8

Deducting the legitimes from the net value of the hereditary estate leaves the freely disposable portion by which the
donation in question here must be measured. If the value of the donation at the time it was made does not exceed
that difference, then it must be allowed to stand. But if it does, the donation is inofficious as to the excess and must
be reduced by the amount of said excess. In this case, if any excess be shown, it shall be returned or reverted to the
petitioner-appellant as the sole compulsory heir of the deceased Epifanio R. Tupas.

For obvious reasons, this determination cannot now be made, as it requires appreciation of data not before this
Court and may necessitate the production of evidence in the Court a quo.

WHEREFORE, the appealed decision is reversed and petitioner-appellant Partenza Lucerna Vda. de Tupas is
adjudged entitled to so much of the donated property in question, as may be found in excess of the freely
disposable portion of the estate of Epifanio B. Tupas, determined in the manner above-indicated. Let the case be
remanded to the Trial Court for further appropriate proceedings in accordance with this decision.

SO ORDERED.