SUBSTITUTION OF HEIRS

PEREZ V. GARCHITORENA

The institution of heirs made in the will in question is in the nature of a fideicommissum: there is an
heiress primarily called to enjoy the estate; an obligation clearly imposed upon her to preserve and
transmit the whole of the estate to certain third persons; and there are secondary heirs.||| he heir
instituted, or fideicommissioner, as article 783 of the Civil Code has it, is entitled to the enjoyment of the
estate. The fideicommissum thus arising from a fideicommissary substitution, which is of Roman origin,
is not exactly equivalent to, and should not be confused with, the English "trust."|||

PCIB V. ESCOLIN

There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles
857-870), namely, (1) simple or common substitution, sometimes referred to as vulgar substitution
(Article 859), and (2) fideicommissary substitution (Article 863). All other substitutions are merely
variations of these. The substitution provided for by paragraph four of the Will of Linnie Jane Hodges is
not fideicommissary substitution, because there is clearly no obligation on the part of C. N. Hodges as
the first heir designated, to preserve the properties for the substitute heirs. At most, it is
a vulgar or simple substitution. However, in order that a vulgar or simple substitution can be valid, three
alternative conditions must be present, namely, that the first designated heir (1) should die before the
testator; or (2) should not wish to accept the inheritance; or (3) should be incapacitated to do so. None
of these conditions apply to C. N. Hodges, and, therefore, the substitution provided for by the above-
quoted provision of the Will is not authorized by the Code, and, therefore, it is void. Manresa,
commenting on these kisses of substitution, meaningfully stated that: "... cuando el testador instituyeun
primer heredero, y por fallecimiento de este nombra otro u otros, ha de entenderse que estas segundas
designaciones solo han de llegar a tener efectividad en el caso de que el primer instituido muera antes
que el testador, fuera o no esta su verdadera intencion. ...". (6 Manresa, 7 a ed., pag. 175.) In other
words, when another heir is designated to inherit upon the death of a first heir, the second designation
can have effect only in case the first instituted heir dies before the testator, whether or not that was the
true intention of said testator. Since C. N. Hodges did not die before Linnie Jane Hodges, the provision
for substitution contained in Linnie Jane Hodges' Willis void.