Wills Finals - Copy

7/27/2019 Wills Finals - Copy

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EN BANC

[G.R. No. 31703. February 13, 1930.]

CARMEN G. DE PEREZ, trustee of the estate of AnaMaria Alcantara, plaintiff-appellee , vs. MARIANO

GARCHITORENA, and JOSE CASIMIRO, Sheriff of theCourt of First Instance of Manila, defendants-appellants.

L.D. Lockwoodand Jose M. Casal, for appellants.

Eduardo Gutierrez Repide and Leoncio B. Monzon, for appellee.

SYLLABUS

1.WILLS; INSTITUTION OF HEIRS; FIDEICOMMISSARY HEIR. The institution of heirs made in the will in question is in the nature of afideicommissum: there is an heiress primarily called to enjoy the estate;

an obligation clearly imposed upon her to preserve and transmit thewhole of the estate to certain third persons; and there are secondaryheirs.

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

D E C I S I O N

ROMUALDEZ, Jp:

The amount of P21,428.58 is on deposit in the plaintiff's namewith the association known as La Urbana in Manila, as the final paymentof the liquidated credit of Ana Maria Alcantara, deceased, whose heiressis said plaintiff, against Andres Garchitorena, also deceased, representedby his son, the defendant Mariano Garchitorena.

And as said Mariano Garchitorena held a judgment forP7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff,Carmen G. de Perez, the sheriff pursuant to the writ of execution issuedin said judgment, levied an attachment on said amount deposited with La

Urbana.

The plaintiff, alleging that said deposit belongs to thefideicommissary heirs of the decedent Ana Maria Alcantara, secured apreliminary injunction restraining the execution of said judgment on thesum so attached. The defendants contend that the plaintiff is thedecedent's universal heiress, and pray for the dissolution of theinjunction.

The court below held that said La Urbana deposit belongs to theplaintiff's children as fideicommissary heirs of Ana Maria Alcantara, andgranted a final writ of injunction.

The defendants insist in their contentions, and, in their appealfrom the decision of the trial court, assign the following errors:

"1.The lower court erred in holding that a trustwas created by the will of Doa Ana Maria Alcantara.

"2.The lower court erred in concluding and

declaring that the amount of P21,428.58 deposited withLa Urbana is the property of the children of the plaintiff as'herederos fidei-comisarios.'

"3.The lower court erred in making the injunctionpermanent and condemning defendant to pay the costs."

The question here raised is confined to the scope and meaningof the institution of heirs made in the will of the late Ana Maria Alcantaraalready admitted to probate, and whose legal force and effect is not indispute.

The clauses of said will relevant to the points in dispute,between the parties are the ninth, tenth, and eleventh, quoted below:

"Ninth. Being single and without any forced heir,to show my gratitude to my niece-in-law, CarmenGarchitorena, of age, married to my nephew, JoaquinPerez Alcantara, and living in this same house with me, I

institute her as my sole and universal heiress to the

remainder of my estate after the pand legacies, so that upon my deaththis will, and after the report of the and appraisal has been rendered anreceive from my executrix the prophereditary estate, that she may enjblessing and my own.

"Tenth. Should my heiress Cdie, I order that my whole estate sha

her surviving children; and should ashare shall serve to increase the porbrothers (and sisters) by accretion, iestate shall never pass out of the haher children in so far as it is legally p

"Eleventh. Should my aforeGarchitorena, die after me while hetheir minority, I order that my estatemy executrix, Mrs. Josefa Laplana, aAttorney Ramon Salinas and in hisRamon Salinas; but the direction hbe considered as an indication of lacnephew Joaquin Perez Alcantara, whduties of administering my estate, that his character is not adapted tadministration."

The appellants contend that in thesordered a simple substitution, while the appfideicommissary substitution.

This will certainly provides for a subthree cases that might give rise to a simple Code), only the death of the instituted heiress the instant case give place to such substitutsaid of the waiver of inheritance, or incapacityfact, however, clause XI provides for the adcase the heiress instituted should die aftersubstitute heirs are still under age. And it is enature of simple substitution by the heir's dethe fact by clause XI in connection with clordered where the heiress instituted dies aftera case of simple substitution.

The existence of a substitution in th

denied, and since it cannot be a simple sub


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considerations above stated, let us now see whether the instant case is afideicommissary substitution.

In clause IX, the testatrix institutes the plaintiff herein her soleand universal heiress, and provides that upon her death (the testatrix's)and after probate of the will and approval of the report of the committeeon claims and appraisal, said heiress shall receive and enjoy the wholehereditary estate. Although this clause provides nothing explicit aboutsubstitution, it does not contain anything in conflict with the idea offideicommissary substitution. The fact that the plaintiff was instituted the

sole and universal heiress does not prevent her children from receiving,upon her death and in conformity with the express desire of the testatrix,the latter's hereditary estate, as provided in the following (above quoted)clauses, which cannot be disregarded if we are to give a correctinterpretation of the will. The word sole does not necessarily exclude theidea of substitute heirs; and taking these three clauses together, suchword means that the plaintiff if the sole heiress instituted in the firstinstance.

The disposition contained in clause IX, that said heiress shallreceive and enjoy the estate, is not incompatible with a fideicommissarysubstitution (it certainly is incompatible with the idea of simplesubstitution, where the heiress instituted does not receive theinheritance). In fact the enjoyment of the inheritance is in conformity withthe idea of fideicommissary substitution, by virtue of which the heirinstituted receives the inheritance and enjoys it, although at the sametime he preserves it in order to pass it on to the second heir. On this pointthe illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th

ed.), says:

"Or, what amounts to the same thing, thefideicommissary substitution, as held in the Resolutions ofJune 25, 1895, February 10, 1899, and July 19, 1909,requires three things:

"1.A first heircalledprimarily to the enjoymentofthe estate.

"2.An obligation clearly imposed upon him topreserve and transmit to a third person the whole or apart of the estate.

"3.A second heir.

"To these requisites, the decision of November18, 1918 adds another, namely that the fideicommissariusbe entitled to the estate from the time the testator dies,

since he is to inherit from the latter and not from thefiduciary." (Emphasis ours.)

It appears from this quotation that the heir instituted or thefiduciary to enjoy the inheritance. And it might here be observed, as atimely remark, that the fideicommissum arising from a fideicommissarysubstitution, which is of Roman origin, is not exactly equivalent to, normay it be confused with, the English "trust."

It should also be noted that said clause IX vests in the heiressonly the right to enjoy but not the right to dispose of the estate. It says,she may enjoy it, but does not say she may dispose of it. This is anindication of the usufruct inherent in fideicommissary substitution.

Clause X expressly provides for the substitution. It is true that itdoes not say whether the death of the heiress herein referred to is beforeor after that of the testatrix; but from the whole context it appears that inmaking the provisions contained in this clause X, the testatrix had in minda fideicommissary substitution, since she limits the transmission of herestate to the children of the heiress by this provision, "in such wise thatmy estate shall never pass out of the hands of my heiress or her childrenin so far as it is legally possible." Here it clearly appears that the testatrixtried to avoid the possibility that the substitution might later be legallydeclared null for transcending the limits fixed by article 781 of the CivilCode which prescribes that fideicommissary substitutions shall be valid"provided they do not go beyond the second degree."

Another clear and outstanding indication of fideicommissarysubstitution in clause X is the provision that the whole estate shall pass

unimpaired to the heiress's children, that is to say the heiress is requiredto preserve the whole estate, without diminution, in order to pass it on indue time to the fideicommissary heirs. This provision complies withanother of the requisites of fideicommissary substitution according to ourquotation from Manresa inserted above.

Lastly, clause XI clearly indicates the idea of fideicommissarysubstitution, when a provision is therein made in the event the heiressshould die after the testatrix. That is, said clause anticipates the case-where the instituted heiress should die after the testatrix and afterreceiving and enjoying the inheritance.

The foregoing leads us to the conclusion that all the requisites ofa fideicommissary substitution, according to the quotation from Manresaabove inserted, are present in the case of substitution now underconsideration, to wit:

1.A first heir primarily called to the this case the plaintiff was instituted an heiressthe estate, according to clause IX of the will.

2.An obligation clearly imposed upotransmit to a third person the whole or a pobligation is imposed in clause X which provshall pass unimpaired to her (heiress's) surviof leaving the heiress at liberty to dispose leaving the law to take its course in case she

not only disposes of the estate in favor of theprovides for the disposition thereof in castestatrix.

3.A second heir. Such are the childrwho are referred to as such second heirs botXI.

Finally, the requisite added by the 1918, to wit, that the fideicommissarius or seto the estate from the time of the testator's case, is, rather than a requisite, a necessarythe nature of the fideicommissary substitutiondoes not inherit from the heir first instituted, bu

By virtue of this consequence, the innot belong to the heiress instituted, the plainproperty, but to her children, from the motestatrix, Ana Maria Alcantara.

Therefore, said inheritance, of whichthe beginning, which is on deposit with theUrbana in the plaintiff's name, is a part, does be subject to the execution of the judgment agnot one of the fideicommissary heirs.

The judgment appealed from is affirappellant, Mariano Garchitorena. So ordered.

Johnson, Malcolm, Villamor, Ostrandconcur.

Street, J., I reserve my vote.

[G.R. Nos. L-27860 & L-27896. Sept


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PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,Administrator of the Testate Estate of CharlesNewton Hodges (Sp. Proc. No. 1672 of the Court ofFirst Instance of Iloilo), petitioner,vs . THEHONORABLE VENICIO ESCOLIN, presiding Judge ofthe Court of First Instance of Iloilo, Branch II, andAVELINA A. MAGNO, respondents .

[G.R. Nos. L-27936 & L-27937. September 30, 1975.]

TESTATE ESTATE OF THE LATE LINNIE JANE HODGES(Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATECHARLES NEWTON HODGES (Sp. Proc. No. 1672)PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,administrator-appellant, vs . LORENZO CARLES, JOSEPABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN,BELCESAR CAUSING, FLORENIA BARRIDO,PURIFICACION CORONADO, GRACIANO LUCERO, ARITEOTHOMAS JAMIR, MELQUIADES BATISANAN, PEPITOIYULORES, ESPERIDION PARTISALA, WINIFREDOESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON,SANTIAGO PACAONSIS, and AVELINA MAGNO, the last asAdministratrix in Sp. Proc. No. 1307, appellees, WESTERNINSTITUTE OF TECHNOLOGY, INC.,movant-appellee .

SYNOPSIS

In regard to a decision decided by the Supreme Court on March 29, 1974 thefollowing pleadings were filed before the Court: a motion for reconsideration ofthe decision of the petitioner-appellant, a motion for modification of thejudgment by the heirs of t he testator, and a motion for the assessment ofdamages suffered by reason of the lifting of the preliminary injunction filed byrespondent-appellee Magno.

The Supreme Court, not finding any new matter in the said motions sufficientto induce a modification of its judgment, reaffirmed its previous opinion,denied the first two motion, and authorized the trial court to make theassessment to the damages prayed for. Because of the length of time that thesubject estates have been pending judicial settlement, the parties wereenjoined to exert all efforts to have the inventories of said estates finalizedand to extrajudicially settle their remaining differences. The respondent court

was likewise directed to expedite proceedings and to close the same upon thepayment of the corresponding taxes due within three months from notice.

SYLLABUS

1.JUDGMENT MOTION FOR RECONSIDERATION OR MODIFICATIONTHEREOF; DENIAL OF THE SAME WHERE NO NEW MATTERS AREPRESENTED SUFFICIENT TO CHANGE THE PREVIOUS DECISION OF

THE COURT. Where the Court, upon consideration of the motions filed inregard to a previously decided case, had not found any new matter thereinsufficiently persuasive to induce a modification of its judgment, the previousdecision is reaffirmed and the motions for reconsideration and for modificationof its judgment are denied.

TEEHANKEE, J., concurring:

1.JUDGMENTS; MOTION FOR RECONSIDERATION OR MODIFICATIONTHEREOF; DENIAL OF THE SAME WHERE NO NEW MATTERS AREPRESENTED SUFFICIENT TO CHANGE THE PREVIOUS DECISION OFTHE COURT; DIRECTIVE TO RESPONDENT COURT TO EXPEDITE ANDTERMINATE PROCEEDINGS WITHIN THREE MONTHS SUPERSEDESPRO TANTO THE DISPOSITION IN THE ORIGINAL DECISION. Theresolution's directive to respondent court to expedite and terminate theprotracted proceedings within three months supersedes pro tanto the

disposition in the original decision of March 29, 1974 for the segregation of theminimum one-fourth of the community properties adjudged to be the estate ofLinnie Jane Hodges for delivery and to exclusive administration by respondentas her estate's administrator, with the other one-fourth to remain under thejoint administration of said respondent and petitioner and Charles NewtonHodges' one-half share to be administered by petitioner exclusively as hisestate's administrator, since such physical segregation and separateadministration could not possibly be accomplished before the more pressingand indispensable matters of submittal of the two estates' inventories anddetermination by respondent court within the limited three-month period givenin the Court's resolution.

R E S O L U T I O N

BARREDO, Jp:

Motion for reconsideration followed by a supplemreconsideration filed by petitioner-appellant PhiliIndustrial Bank and motion for modification filed heirs of Charles Newton Hodges" in regard to theMarch 29, 1974.

Upon consideration of said motions, the Court ha

therein sufficiently persuasive to induce a modifiwhich reason, the Court, with its members reaffirand vote resolved unanimously to DENY as it hereconsideration and modification above referred

Anent the motion of respondent-appellee Ave linathe damages she claims she and the Estate Linnsuffered by reason of the preliminary injunction iper resolution of 1 Court of September 8, 1972, tauthorize trial court to make the assessment prathis Court, if necessary.

Considering the substantial value of the subject have already been pending judicial settlement anpayment of the corresponding taxes thereon arebecause the properties of said estates have to b

before May 27, 1976, the Court enjoins the partiethe inventories of said states finalized without furextrajudicially settle their remaining differences texpenses and unnecessary loss time. The respoexpedite processing by giving due priority theretsubmit the inventories within thirty days from notremaining issues as delineated in the Court's deproceedings upon payment of the correspondingfrom notice hereof. Respondent judge is further dfrom time to time the action taken by him hereon

Castro, Acting C.J., Ferrando, Muoz Palma, Aq

Makalintal, C.J, Esguerra and Concepcion, Jr., J

Separate Opinion


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TEEHANKEE, J., concurring:

I join in the resolution denying the motions f reconsideration for the reasonsand considerations already indicated in my separate concurring anddissenting opinion of March 29, 1974.

I specially welcome the resolution's directive to respondent court to expediteand terminate these long-drawn proceedings (for over 18 years now sinceLinnie Jane Hodges' death on May 23, 1957) and to "resolve the remaining

issues as delineated in the Court's decision" and to cause the payment in theestate and inheritance taxes long overdue to the Government "within threemonths from notice hereof." (See pp. 19-20, writer's separate opinion).

I take it that the resolution's directive to respondent court to expedite andterminate the protracted proceedings three months supersedes pro tanto thedisposition original decision of March 29, 1974 for the segregation minimumone-fourth of the community properties adjudged to be the estate of LinnieJane Hodges for delivery to and exclusive administration by respondent asher estate's administrator, with the other one-fourth to remain under the jointadministration of said respondent and petitioner and Charles Newton Hodges'one-half share to be administered by petitioner exclusively as his estate'sadministrator, since such physical segregation and separate administrationcould not possibly be accomplished before the more pressing andindispensable matters of submittal of the two estates' inventories anddetermination by respondent court of the remaining issues are attended to byrespondent court within the limited three-month period given in the Court's

resolution. (See pages 7-8, writer's separate opinion).

The remaining issues to be resolved by respondent court revolve on the twoquestions ofrenvoiand renunciation. In his separate opinion (at page 7 etseq.), as concurred in by the Chief Justice and Justice Makasiar and Antonio,the writer urged that these two questions should be resolved "preferentiallyand expeditiously" by respondent court, since aside from the time problem,these proceedings have "apparently degenerated into running battle betweenthe administrators of the two estates to the common prejudice of all the heirs."(at page 20).

Since respondent court is now again presided by still another judge in a longline of judges who have come and gone with even terminating theproceedings, and since as is clear from the decision itself, no consensus onthe best means of expediting the closing of the estates was reached by amajority of the Court (see pages 8 and 10, separate opinion), I trust that those

who did not concur with the "suggested guidelines" in the writer's separate

opinion (at pages 8-20) either because they were not ready to express theirdefinite opinion thereon or because they felt that respondent court should begiven a free hand, will understand that the writer now commends anew to thenew judge presiding respondent court the careful reading the said suggestedguidelines in the hope that they may lighten his work and help find theappropriate measures and solutions to "expedite the closing of the protractedestate proceedings below to the mutual satisfaction of the heirs and withoutneed of a dissatisfied party elevating his resolution of this only remainingissue once more to this Court and dragging out indefinitely the proceedings."(page 10, separate opinion), and thus enable him to comply timely with the

Court's directive to close out the estates within three months from notice.

Makasiarand Antonio, JJ., concur.

[G.R. No. 22595. November 1, 1924.]

"Testate Estate of Joseph G. Brimo. JUAN MICIANO,administrator, petitioner-appellee , vs. ANDRE BRIMO,opponent-appellant.

Ross, Lawrence & Selph for appellant.

Camus & Delgado for appellee.

SYLLABUS

1.FOREIGN LAWS; PRESUMPTION. In the absence ofevidence to the contrary foreign laws on a particular subject arepresumed to be the same as those of the Philippines. (Lim and Lim vs.Collector of Customs, 36 Phil., 472.)

2.POSTPONEMENT OF PROCEEDING; DISCRETION. It isdiscretionary on the part of the court to postpone or not to postpone aparticular proceeding in a case, and when the person applying for it hasalready been given ample opportunity to present the evidence that hewishes to introduce, the court commits no abuse of discretion in denyingit.

3.SUCCESSIONS; CONDITIONAL LCONTRARY TO LAW; NULLITY OF. If the legatee is that he respect the testator's order tdistributed in accordance with the laws of the accordance with the laws of his nation, said coaccording to article 10 of the Civil Code, said ltestamentary disposition, and, being illegal, shthus making the institution unconditional.

D E C I S I O N

ROMUALDEZ, Jp:

The partition of the estate left by the is in question in this case.

The judicial administrator of this estapartition. Andre Brimo, one of the brothers of tThe court, however, approved it.

The errors which the oppositor-appelapproval of said scheme of partition; (2) the dethe inheritance; (3) the denial of the motion fororder approving the partition; (4) the approval Pietro Lanza of the deceased's business and tbusiness; and (5) the declaration that the Turkthis cause, and the failure not to postpone the partition and the delivery of the deceased's buthe receipt of the depositions requested in refe

The appellant's opposition is based oin question puts into effect the provisions of Joare not in accordance with the laws of his Turkreason they are void as being in violation of arwhich, among other things, provides the follow

"Nevertheless, legal and tessuccessions, in respect to the order oas to the amount of the successionalintrinsic validity of their provisions, shthe national law of the person whose


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question, whatever may be the nature of the property orthe country in which it may be situated."

But the fact is that the oppositor did not prove that saidtestamentary dispositions are not in accordance with the Turkish laws,inasmuch as he did not present any evidence showing what the Turkishlaws are on the matter, and in the absence of evidence on such laws,they are presumed to be the same as those of the Philippines. (Lim andLim vs. Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish

laws are. He, himself, acknowledges it when he desires to be given anopportunity to present evidence on this point; so much so that he assignsas an error of the court in not having deferred the approval of the schemeof partition until the receipt of certain testimony requested regarding theTurkish laws on the matter.

The refusal to give the oppositor another opportunity to provesuch laws does not constitute an error. It is discretionary with the trialcourt, and, taking into consideration that the oppositor was granted ampleopportunity to introduce competent evidence, we find no abuse ofdiscretion on the part of the court in this particular.

There is, therefore, no evidence in the record that the nationallaw of the testator Joseph G. Brimo was violated in the testamentarydispositions in question which, not being contrary to our laws in force,must be complied with and executed.

Therefore, the approval of the scheme of partition in this respect

was not erroneous.In regard to the first assignment of error which deals with the

exclusion of the herein appellant as a legatee, inasmuch as he is one ofthe persons designated as such in the will, it must be taken intoconsideration that such exclusion is based on the last part of the secondclause of the will, which says:

"Second. I likewise desire to state that although,by law, I am a Turkish citizen, this citizenship having beenconferred upon me by conquest and not by free choice,nor by nationality and, on the other hand, having residedfor a considerable length of time in the Philippine Islandswhere I succeeded in acquiring all of the property that Inow possess, it is my wish that the distribution of myproperty and everything in connection with this, my will,be made and disposed of in accordance with the laws inforce in the Philippine Islands, requesting all of myrelatives to respect this wish, otherwise, I annul and

cancel beforehand whatever disposition found in this willfavorable to the person or persons who fail to comply withthis request."

The institution of legatees in this will is conditional, and thecondition is that the instituted legatees must respect the testator's will todistribute his property, not in accordance with the laws of his nationality,but in accordance with the laws of the Philippines.

If this condition as it is expressed were legal and valid, anylegatee who fails to comply with it, as the herein oppositor who, by his

attitude in these proceedings has not respected the will of the testator, asexpressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, beingcontrary to law, for article 792 of the Civil Code provides the following:

"Impossible conditions and those contrary to lawor good morals shall be considered as not imposed andshall not prejudice the heir or legatee in any mannerwhatsoever, even should the testator otherwise provide."

And said condition is contrary to law because it expresslyignores the testator's national law when, according to article 10 of theCivil Code above quoted, such national law of the testator is the one togovern his testamentary dispositions.

Said condition then, in the light of the legal provisions abovecited, is considered unwritten, and the institution of legatees in said will isunconditional and consequently valid and effective even as to the herein

oppositor.

It results from all this that the second clause of the will regardingthe law which shall govern it, and to the condition imposed upon thelegatees, is null and void, being contrary to law.

All of the remaining clauses of said will with all their disposi tionsand requests are perfectly valid and effective it not appearing that saidclauses are contrary to the testator's national laws.

Therefore, the orders appealed from are modified and it isdirected that the distribution of this estate be made in such a manner asto include the herein appellant Andre Brimo as one of the legatees, andthe scheme of partition submitted by the judicial administrator is approvedin all other respects, without any pronouncement as to costs. So ordered.

Street, Malcolm, Avancea, Villamor, and Ostrand, JJ., concur.

Johnson, J., dissents.

FIRST DIVISION

[G.R. No. 113725. June 29

JOHNNY S. RABADILLA,1petitioneAPPEALS AND MARIA MARLENA2BELLEZA VILLACARLOS, responde

Romeo S. Perezfor petitioner.

Benjamin Santos & Ofelia Calcetas-Santos Law for respondent Marlene C. Villacarlos.

Garcia Ines Villacarlos Garcia and Recina Law Orespondents.

SYNOPSIS

Dr. Jorge Rabadilla, in a codicil of Aledevisee of Lot No. 1392 with an area of 511,8obligation to deliver 100 piculs of sugar to hereevery year during the latter's lifetime. The codobligation is imposed not only on the institutedsuccessors-in-interest and that in case of failurespondent shall seize the property and turn itdescendants." Dr. Rabadilla died and was survchildren, one of whom is herein petitioner. Privfailure of the heirs to comply with their obligatithe RTC praying for the reconveyance of the ssurviving heirs of the testatrix. During the pre-tagreement was concluded between the partiesproperty assumed the delivery of 100 piculs ofrespondent. However, only partial delivery wascourt dismissed the complaint for lack of causAppeals, on appeal, r eversed the decision andDr. Rabadilla is in the nature of a modal instituin favor of private respondent arose when petitheir obligation under the codicil, and in orderinto the estate of testatrix. Aggrieved, petitioner
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Successional rights are transmitted from the moment of death and compulsoryheirs succeed the decedent not only to all the property but also to his rightsand obligations. Hence, the heirs of Dr. Rabadilla is also obliged under thecodicil to deliver 100 piculs of sugar to private respondent every year.

There is no substitution of heir where no substitute was provided by thetestatrix in case the instituted heir predecease her or in case of the latter'sincapacity or renunciation nor was the instituted heir mandated to preservethe property and to transmit it to the second heir.

SYLLABUS

1.CIVIL LAW; WILLS AND SUCCESSION; SUCCESSIONAL RIGHTSTRANSMITTED FROM MOMENT OF DEATH OF DECEDENT. It is ageneral rule under the law on succession that successional rights aretransmitted from the moment of death of the decedent and compulsory heirsare called to succeed by operation of law. The legitimate children anddescendants, in relation to their legitimate parents, and the widow or widower,are compulsory heirs. Thus, the petitioner, his mother and sisters, ascompulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded thelatter by operation of law, without need of further proceedings, and thesuccessional rights were transmitted to them from the moment of death of thedecedent, Dr. Jorge Rabadilla.

2.ID.; ID.; INHERITANCE INCLUDES ALL PROPERTY, RIGHTS ANDOBLIGATIONS NOT EXTINGUISHED BY DEATH. Under Article 776 of theNew Civil Code, inheritance includes all the property, rights and obligations ofa person, not extinguished by his death. Conformably, whatever rights Dr.Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forcedheirs, at the time of his death. And since obligations not extinguished by deathalso form part of the estate of the decedent; corollarily, the obligationsimposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewisetransmitted to his compulsory heirs upon his death.

3.ID.; ID.; SUBSTITUTION, DEFINED. Substitution is the designation bythe testator of a person or persons to take the place of the heir or heirs firstinstituted. Under substitutions in general, the testator may either (1) providefor the designation of another heir to whom the property shall pass in case theoriginal heir should die before him/her, renounce the inheritance or beincapacitated to inherit, as in a simple substitution, or (2) leave his/herproperty to one person with the express charge that it be transmitted

subsequently to another or others, as in a fideicommissary substitution. dctai

4.ID.; ID.; SIMPLE SUBSTITUTIONS DIFFERENT FROM CODICIL; CASEAT BAR. In simple substitutions, the second heir takes the inheritance indefault of the first heir by reason of incapacity, predecease or renunciation. Inthe case under consideration, the provisions of subject Codicil do not providethat should Dr. Jorge Rabadilla default due to predecease, incapacity orrenunciation, the testatrix's near descendants would substitute him. What theCodicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill theconditions imposed in the Codicil, the property referred to shall be seized andturned over the testatrix's near descendants.

5.ID.; ID.; FIDEICOMMISSARY SUBSTITUTION DIFFERENT FROMCODICIL; CASE AT BAR. Neither is there a fideicommissary substitutionhere and on this point, petitioner is correct. In a fideicommissary substitution,the first heir is strictly mandated to preserve the property and to transmit thesame later to the second heir. In the case under consideration, the institutedheir is in fact allowed under the Codicil to alienate the property provided thenegotiation is with the near descendants or the sister of the testatrix. Thus, avery important element of a fideicommissary substitution is lacking; theobligation clearly imposing upon the first heir the preservation of the propertyand its transmission to the second heir. "Without this obligation to preserveclearly imposed by the testator in his will, there is no fideicommissarysubstitution." Also, the near descendants' right to inherit from the testatrix isnot definite. The property will only pass to them should Dr. Jorge Rabadilla orhis heirs not fulfill the obligation to deliver part of the usufruct to privaterespondent. Another important element of a fideicommissary substitution isalso missing here. Under Article 863, the second heir or the fideicommissaryto whom the property is transmitted must not be beyond one degree from thefirst heir or the fiduciary. A fideicommissary substitution is therefore, void if thefirst heir is not related by first degree to the second heir. In the case underscrutiny, the near descendants are not at all related to the instituted heir, Dr.Jorge Rabadilla.

6.ID.; ID.; MODAL INSTITUTION DISTINGUISHED FROM CONDITIONALTESTAMENTARY DISPOSITION. The institution of an heir in the mannerprescribed 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 testatorstates (1) the object of the institution, (2) the purpose or application of theproperty left by the testator, or (3) the charge imposed by the testator uponthe heir. A "mode" imposes an obligation upon the heir or legatee but it doesnot affect the efficacy of his rights to the succession. On the other hand, in aconditional testamentary disposition, the condition must happen or be fulfilledin order for the heir to be entitled to succeed the testator. The conditionsuspends but does not obligate; and the mode obligates but does not

suspend. To some extend, it is similar to a resolutory condition.

7.ID.; ID.; OBLIGATION IMPOSED ON HEIRS SCONSIDERED A CONDITION UNLESS IT CLEAWILL ITSELF THAT SUCH WAS THE INTENTIOSince testamentary dispositions are generally acimposed upon the heir should not be consideredappears from the Will itself that such was the intof doubt, the institution should be considered as

8.ID.; ID.; UNCERTAINTY ON APPLICATION O

INTERPRETED ACCORDING TO TESTATOR'Sinterpretation of Wills, when an uncertainty arisethe application of any of its provisions, the testatascertained from the words of the Will, taking intcircumstances under which it was made. Such cuphold the Will in all its parts must be adopted.

9.ID.; ID.; CANNOT BE THE SUBJECT OF COMpersonal, solemn, revocable and free act by whicproperty, to take effect after his death. Since thewhich a person intends how his properties be disdesires of the testator must be strictly followed. Tsubject of a compromise agreement which wouldpurpose of making a Will.

VITUG, J., separate opinion:

1.CIVIL LAW; WILLS AND SUCCESSION; SUBSubstitution is the appointment of another heir soinheritance in defaultof the heir originally institut

when the testator designates one or more persoheirs instituted in case the latter should die beforshould be incapacitated to accept the inheritancestatement of the cases to which it refers shall coThere is no simple substitution that takes place winstituted is able to succeed. Fideicommissary soccurs when the fiduciary or first heir instituted isto preserve and to transmitto a second heir the inheritance. Every fideicommissary substitution sorder that it may be valid. The term "fideicommishowever, be used in the will; it is enough that thestatement that one shall enjoy usufructuary or otownership or title, over certain property of the tespreserve the property and to transmit it to a seco


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validity of a fideicommissary substitution that both heirs are living and qualifiedto succeed at the time of death by the testator and that the substitute does notgo beyond one degree from the heir originally instituted.

2.ID.; ID.; MODE DISTINGUISHED FROM CONDITION. A mode isdistinguished from a condition contemplated in the rules on succession in thatthe latter dictates the efficacy, either in a suspensive or resolutory manner, of

a testamentary disposition while the former obligates the instituted heir tocomply with the mandate made by the testator but does not prevent the heirfrom at once claiming the inheritance provided he gives a security to ensurecompliance with the will of the testator and the return of the thing receivedtogether with its fruits and interests, "should (the heir) disregard theobligation." The obligation imposed upon the heir or legatee is deemed not tobe a condition for his entry forthwith into the inheritance unless a contraryintention of the testator is evident. In case of doubt, the institution isconsidered modal, rather than conditional. Much of the variance in the legaleffects of the two classes, however, is now practically theoretical and merelyconceptual. Under the old Civil Code an institucion sub modo could be said tobe more akin to an institution sub demonstratione, or an expression of a wishor suggestion of the testator that did not have any real obligatory force, thatmatter being left instead to the discretion of the heir, i.e., whether to abide byit or not. The amendatory provisions of the new Civil Code now hardlydifferentiates between the principal effect of the non-compliance with themode and that of the occurrence of a resolutory condition expressed in the

will. In both instances, the property must be returned to the estate of thedecedent to then pass on under the rules on intestacy.

D E C I S I O N

PURISIMA, Jp:

This is a petition for review of the decision of the Court of Appeals,3datedDecember 23, 1993, in CA-G.R. No. CV-35555, which set aside the decisionof Branch 52 of the Regional Trial Court in Bacolod City, and ordered thedefendants-appellees (including herein petitioner), as heirs of Dr. JorgeRabadilla, to reconvey title over Lot No. 1392, together with its fruits andinterests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

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

"FIRST

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

(a) Lot No. 1392 of the Bacolod Cadastre, covered byTransfer Certificate of Title No. RT-4002 (10942), which isregistered in my name according to the records of theRegister of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, theaforementioned property and the rights which I shall setforth hereinbelow, shall be inherited and acknowledgedby the children and spouse of Jorge Rabadilla.

xxx xxx xxx

FOURTH

(a) It is also my command, in this my addition (Codicil),that should I die and Jorge Rabadilla shall have alreadyreceived the ownership of the said Lot No. 1392 of theBacolod Cadastre, covered by Transfer Certificate of TitleNo. RT-4002 (10942), and also at the time that the leaseof Balbinito G. Guanzon of the said lot shall expire, JorgeRabadilla shall have the obligation until he dies, everyyear to give Maria Marlina Coscolluela y Belleza, Seventy(75) (sic) piculs of Export sugar and Twenty Five (25)piculs of Domestic sugar, until the said Maria MarlinaCoscolluela y Belleza dies. Cdpr

FIFTH

(a) Should Jorge Rabadilla die, his hegive Lot No. 1392 of the Bacolod CadTransfer Certificate of Title No. RT-40have the obligation to still give yearlyspecified in the Fourth paragraph of hMaria Marlina Coscolluela y Belleza December of each year.

SIXTH

I command, in this my addition (Codi1392, in the event that the one to whbequeathed, and his heir shall later sthis said Lot, the buyer, lessee, mortgalso the obligation to respect and delHUNDRED (100) piculs of sugar to MCoscolluela y Belleza, on each montSEVENTY FIVE (75) piculs of Export(25) piculs of Domestic, until Maria Mlastly should the buyer, lessee or thelot, not have respected my command(Codicil), Maria Marlina Coscolluela yimmediately seize this Lot No. 1392 flatter's heirs, and shall turn it over to

(sic) and the latter shall then have thethe ONE HUNDRED (100) piculs of sMarlina shall die. I further command (Codicil) that my heir and his heirs ofthat they will obey and follow that shosell, lease, mortgage, they cannot nethan my near descendants and my s

Pursuant to the same Codicil, Lot No. 1392 was Dr. Jorge Rabadilla, and Transfer Certificate of Tin his name.

Dr. Jorge Rabadilla died in 1983 and was survivechildren Johnny (petitioner), Aurora, Ofelia and ZRabadilla.
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On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos broughta complaint, docketed as Civil Case No. 5588, before Branch 52 of theRegional Trial Court in Bacolod City, against the above-mentioned heirs of Dr.Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaintalleged that the defendant-heirs violated the conditions of the Codicil, in that:

1.Lot No. 1392 was mortgaged to the Philippine NationalBank and the Republic Planters Bank in disregard of thetestatrix's specific instruction to sell, lease, or mortgageonly to the near descendants and sister of the testatrix.

2.Defendant-heirs failed to comply with their obligation todeliver one hundred (100) piculs of sugar (75 piculsexport sugar and 25 piculs domestic sugar) to plaintiffMaria Marlena Coscolluela y Belleza from sugar cropyears 1985 up to the filing of the complaint as mandatedby the Codicil, despite repeated demands for compliance.

3.The banks failed to comply with the 6th paragraph ofthe Codicil which provided that in case of the sale, lease,or mortgage of the property, the buyer, lessee, ormortgagee shall likewise have the obligation to deliver100 piculs of sugar per crop year to herein privaterespondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirsto 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. JorgeRabadilla, and the issuance of a new certificate of title in the names of thesurviving heirs of the late Aleja Belleza.

On February 26, 1990, the defendant-heirs were declared in default but onMarch 28, 1990 the Order of Default was lifted, with respect to defendantJohnny 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 AlanAzurin, son-in-law of the herein petitioner who was lessee of the prope rty andacting as attorney-in-fact of defendant heirs, arrived at an amicable settlementand entered into a Memorandum of Agreement on the obligation to deliverone hundred piculs of sugar, to the following effect:

"That for crop year 1988-89, the annuity mentioned inEntry No. 49074 of TCT No. 44489 will be delivered notlater 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 RoseRabadilla y Azurin or Alan Azurin, duringDecember of each sugar crop year; in AzucarSugar Central; and, this is consideredcompliance of the annuity as mentioned, and inthe same manner will compliance of the annuitybe in the next succeeding crop years.

That the annuity above stated for crop year1985-86, 1986-87, and 1987-88, will becomplied in cash equivalent of the number ofpiculs as mentioned therein and which is asherein agreed upon, taking into considerationthe composite price of sugar during each sugarcrop year, which is in the total amount of ONEHUNDRED FIVE THOUSAND PESOS(P105,000.00).

That the above-mentioned amount will be paidor 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 TWOHUNDRED FIFTY (P26,250.00) Pesos, payableon or before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWOHUNDRED FIFTY (P26,250.00) Pesos, payableon or before December of crop year 1989-90;

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

For 1988-89, TWENTY SIX HUNDRED FIFTY (P26,250on or before December of c

However, there was no compliance with the aforAgreement except for a partial delivery of 50.80 to sugar crop year 1988-1989.

On July 22, 1991, the Regional Trial Court came

dismissing the complaint and disposing as follow

"WHEREFORE, in the light of the afoCourt finds that the action is prematucause of action against the defendanin favor of plaintiff. While there may bperformance of the command as manthem simply because they are the chRabadilla, the title holder/owner of thdoes not warrant the filing of the presremedy at bar must fall. Incidentally, as creditor of the left estate, it is opininitiate the intestate proceedings, if oheirs of Jorge Rabadilla and in order and semblance to her claim under th

In the light of the aforegoing findings,prematurely filed is DISMISSED with

SO ORDERED."6

On appeal by plaintiff, the First Division of the Codecision of the trial court; ratiocinating and order

"Therefore, the evidence on record hplaintiff-appellant's right to receive 10annually out of the produce of Lot Noappellee's obligation under Aleja Bellheirs of the modal heir, Jorge Rabadamount of sugar to plaintiff-appellant

appellee's admitted non-compliance
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since 1985; and, the punitive consequences enjoined byboth the codicil and the Civil Code, of seizure of Lot No.1392 and its reversion to the estate of Aleja Belleza incase of such non-compliance, this Court deems it properto order the reconveyance of title over Lot No. 1392 fromthe estates of Jorge Rabadilla to the estate of AlejaBelleza. However, plaintiff-appellant must instituteseparate proceedings to re-open Aleja Belleza's estate,secure the appointment of an administrator, and distributeLot No. 1392 to Aleja Belleza's legal heirs in order to

enforce her right, reserved to her by the codicil, to receiveher legacy of 100 piculs of sugar per year out of theproduce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDEand 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 ofAleja Belleza.

SO ORDERED."7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitionerfound his way to this Court via the present petition, contending that the Courtof Appeals erred in ordering the reversion of Lot 1392 to the estate of thetestatrix 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 institutionwithin 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 inaccordance with Article 882 of the New Civil Code on modal institutions and indeviating from the sole issue raised which is the absence or prematurity of thecause of action. Petitioner maintains that Article 882 does not find applicationas there was no modal institution and the testatrix intended a mere simplesubstitution i.e., the instituted heir, Dr. Jorge Rabadilla, was to besubstituted by the testatrix's "near descendants" should the obligation todeliver the fruits to herein private respondent be not complied with. And sincethe testatrix died single and without issue, there can be no valid substitutionand such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for thereason that the substituted heirs are not definite, as the substituted heirs aremerely referred to as "near descendants" without a definite identity orreference as to who are the "near descendants" and therefore, under Articles8438and 8459of the New Civil Code, the substitution should be deemed asnot written.

The contentions of petitioner are untenable. Contrary to his supposition thatthe Court of Appeals deviated from the issue posed before it, which was thepropriety of the dismissal of the complaint on the ground of prematurity ofcause of action, there was no such deviation. The Court of Appeals found thatthe private respondent had a cause of action against the petitioner. Thedisquisition made on modal institution was, precisely, to stress that the privaterespondent had a legally demandable right against the petitioner pursuant tosubject Codicil; on which issue the Court of Appeals ruled in accordance withlaw.

It is a general rule under the law on succession that successional rights aretransmitted from the moment of death of the decedent10and compulsoryheirs are called to succeed by operation of law. The legitimate children anddescendants, in relation to their legitimate parents, and the widow or widower,are compulsory heirs.11Thus, the petitioner, his mother and sisters, ascompulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded thelatter by operation of law, without need of further proceedings, and thesuccessional rights were transmitted to them from the moment of death of thedecedent, Dr. Jorge Rabadilla. dctai

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 subjectCodicil were transmitted to his forced heirs, at the time of his death. And sinceobligations not extinguished by death also form part of the estate of thedecedent; corollarily, the obligations imposed by the Codicil on the deceasedDr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs uponhis death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. JorgeRabadilla, subject to the condition that the usufruct thereof would be deliveredto the herein private respondent every year. Upon the death of Dr. JorgeRabadilla, his compulsory heirs succeeded to his rights and title over saidproperty, and they also assumed his (decedent's) obligation to deliver thefruits of the lot involved to herein private respondent. Such obligation of theinstituted heir reciprocally corresponds to the right of private respondent over

the usufruct, the fulfillment or performance of whby the latter through the institution of the case atrespondent has a cause of action against petitiondismissing the complaint below.

Petitioner also theorizes that Article 882 of the Ninstitutions is not applicable because what the tesubstitution Dr. Jorge Rabadilla was to be subdescendants should there be non-compliance wpiculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of the place of the heir or heirs first instituted. Undetestator may either (1) provide for the designatioproperty shall pass in case the original heir shourenounce the inheritance or be incapacitated to isubstitution,12or (2) leave his/her property to ocharge that it be transmitted subsequently to anofideicommissary substitution.13The Codicil sueof the two.

In simple substitutions, the second heir takes thefirst heir by reason of incapacity, predecease or under consideration, the provisions of subject Coshould Dr. Jorge Rabadilla default due to predecrenunciation, the testatrix's near descendants woCodicil provides is that, should Dr. Jorge Rabadiconditions imposed in the Codicil, the property returned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution hpetitioner is correct. In a fideicommissary substitmandated to preserve the property and to transmsecond heir.15In the case under consideration,allowed under the Codicil to alienate the propertywith the near descendants or the sister of the teselement of a fideicommissary substitution is lackimposing upon the first heir the preservation of thtransmission to the second heir. "Without this obimposed by the testator in his will, there is no fid

16Also, the near descendants' right to inherit fro
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The property will only pass to them should Dr. Jorge Rabadilla or his heirs notfulfill the obligation to deliver part of the usufruct to private respondent.

Another important element o f a fideicommissary substitution is als o missinghere. Under Article 863, the second heir or the fideicommissary to whom theproperty is transmitted must not be beyond one degree from the first heir orthe fiduciary. A fideicommissary substitution is therefore, void if the first heir isnot related by first degree to the-second heir. 17In the case under scrutiny,the near descendants are not at all related to the instituted heir, Dr. JorgeRabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. JorgeRabadilla under subject Codicil is in the nature of a modal institution andtherefore, Article 882 of the New Civil Code is the provision of law in point.Articles 882 and 883 of the New Civil Code provide:

ARTICLE 882.The statement of the object of theinstitution or the application of the property left by thetestator, or the charge imposed on him, shall not beconsidered as a condition unless it appears that such washis intention.

That which has been left in this manner may be claimedat once provided that the instituted heir or his heirs givesecurity for compliance with the wishes of the testator andfor the return of anything he or they may receive, togetherwith its fruits and interests, if he or they should disregardthis obligation.

ARTICLE 883.When without the f ault of the heir, aninstitution referred to in the preceding article cannot takeeffect in the exact manner stated by the testator, it shallbe complied with in a manner most analogous to and inconformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what isknown in the law of succession as an institucion sub modo or a modalinstitution. In a modal institution, the testator states (1) the object of theinstitution, (2) the purpose or application of the property left by the testator, or(3) the charge imposed by the testator upon the heir. 18A "mode" imposes an

obligation upon the heir or legatee but it does not affect the efficacy of hisrights to the succession.19On the other hand, in a conditional testamentarydisposition, the condition must happen or be fulfilled in order for the heir to beentitled to succeed the testator. The condition suspends but does not obligate;and the mode obligates but does not suspend.20To some extent, it is similarto a resolutory condition.21

From the provisions of the Codicil litigated upon, it can be gleaned unerringlythat the testatrix intended that the subject property be inherited by Dr. JorgeRabadilla. It is likewise clearly worded that the testatrix imposed an obligationon the said instituted heir and his successors-in-interest to deliver onehundred piculs of sugar to the herein private respondent, Marlena CoscolluelaBelleza, during the lifetime of the latter. However, the testatrix did not makeDr. Jorge Rabadilla's inheritance and the effectivity of his institution as adevisee, dependent on the performance of the said obligation. It is clear,though, that should the obligation be not complied with, the property shall beturned over to the testatrix's near descendants. The manner of institution ofDr. Jorge Rabadilla under subject Codicil is evidently modal in nature becauseit imposes a charge upon the instituted heir without, however, affecting theefficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, anobligation imposed upon the heir should not be considered a condition unlessit 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 notconditional.22

Neither is there tenability in the other contention of petitioner that the privaterespondent has only a right of usufruct but not the right to seize the propertyitself from the instituted heir because the right to seize was expressly limitedto violations by the buyer, lessee or mortgagee.

In the interpretation of Wills, when an uncertainty arises on the face of theWill, as to the application of any of its provisions, the testator's intention is tobe ascertained from the words of the Will, taking into consideration thecircumstances under which it was made.23Such construction as will sustainand uphold the Will in all its parts must be adopted.24

Subject Codicil provides that the instituted heir is under obligation to deliverOne Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Suchobligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, andtheir 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 Belleza Coscuella shall seize the property and tunear descendants. The non-performance of the ssanction of seizure of the property and reversiondescendants. Since the said obligation is clearly only on the instituted heir but also on his succesimposed by the testatrix in case of non-fulfillmenequally apply to the instituted heir and his succe

Similarly unsustainable is petitioner's submissionsettlement, the said obligation imposed by the Cthe lessee, and whatever obligation petitioner hathe lessee; that petitioner is deemed to have maconstructive compliance of his obligation throughsettlement between the lessee and the private reconsummated a settlement with the petitioner, threspondent is the fulfillment of the obligation undand not the seizure of subject property.

Suffice it to state that a Will is a personal, solemwhich a person disposes of his property, to take Since the Will expresses the manner in which a properties be disposed, the wishes and desires ofollowed. Thus, a Will cannot be the subject of a which would thereby defeat the very purpose of

WHEREFORE, the petition is hereby DISMISSECourt of Appeals, dated December 23, 1993, in CAFFIRMED. No Pronouncement as to costs. prc

SO ORDERED.

Melo, J., I concur as well in the separate opinion

Vitug, J., see separate opininon (concurring in re

Panganiban, J., I join the separate opinion of Jus

Gonzaga-Reyes, J., took no part.

Separate Opinion
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11/79

VITUG, J., concurring:

By virtue of a codicil appended to her will, Aleja Belleza devised a 511,856-square meter parcel of land in Bacolod City, denominated Lot No. 1392 of theBacolod Cadastral Survey, to Jorge Ravadilla (predecessor-in-interest ofpetitioner),1carrying with it an obligation to deliver to private respondent,Maria Marlena Coscolluela y Belleza, one hundred piculs of sugar per cropyear during her lifetime. The portions of the codicil, pertinent to the instantcontroversy, read:

"FIRST

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

"(a)Lot No. 1392 of the Bacolod Cadastre, covered byTransfer Certificate of Title No. RT-4002(10942), which isregistered in my name according to the records of theRegister of Deeds of Negros Occidental.

"b)That should Jorge Rabadilla die ahead of me, theaforementioned property and the rights which I shall setforth hereinbelow, shall be inherited and acknowledgedby the children and spouse of Jorge Rabadilla.

xxx xxx xxx

FOURTH

"(a)It is also my command, in this my addition (codicil),that should I die and Jorge Rabadilla shall have alreadyreceived the ownership of the said Lot No. 1392 of theBacolod Cadastre, covered by Transfer Certificate of TitleNo. RT-4002(10942), and also at the time that the leaseof Balbinito Guanzon of the said lot shall expire, JorgeRabadilla shall have the obligation until he dies, everyyear 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 MarlinaCoscolluela y Belleza dies.

"FIFTH

"(a)Should Jorge Rabadilla die, his heir to whom he shallgive Lot No. 1392 of the Bacolod Cadastre, covered byTransfer Certificate of Title No. RT-4002 (10942), shallhave the obligation to still give yearly, the sugar asspecified in the Fourth paragraph of this testament, toMaria Marlina Coscolluela y Belleza on the month ofDecember 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 andbequeathed, and his heir shall later sell, lease, mortgagethis said Lot, the buyer, lessee, mortgagee, shall havealso the obligation to respect and deliver yearly ONEHUNDRED (100) piculs of sugar to Maria MarlinaCoscolluela 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 thislot, not have respected my command in this my addition(Codicil), Maria Marlina Coscolluela y Belleza, shallimmediately seize this Lot No. 1392 from my heir and thelatter's heirs, and shall turn it over to my near

descendants,2and the latter shall then have theobligation to give the ONE HUNDRED (100) piculs ofsugar until Maria Marlina shall die. I further command inthis my addition (Codicil) that my heir and his heirs of thisLot No. 1392, that they will obey and follow that shouldthey decide to sell, lease, mortgage, they cannotnegotiate with others than my near descendants and mysister."3

Pursuant to the above provisions of the codicil, ownership of Lot No. 1392was transferred to Jorge Rabadilla and Transfer Certificate of Title No. T-44498 was issued in his name. LexLib

Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, andtheir children Johnny, Aurora, Ofelia and Zenaida.

On 21 August 1989, on account of the failure of comply with the obligation under the codicil, privadocketed Civil Case No. 5588, against the RabaTrial Court, Branch 52, of Bacolod City for the rethe heirs of Aleja Belleza and the cancellation ofNo. 44498 covering the property in the name of J

The trial court dismissed the complaint "without by private respondent to the Court of Appeals, ththe appealed decision and held:

"Therefore, the evidence on record hplaintiff-appellant's right to receive 10annually out of the produce of Lot Noappellees' obligation under Aleja Bellheirs of the modal heir, Jorge Rabadamount of sugar to plaintiff-appellantappellees' admitted non-compliance since 1985; and, the punitive conseqboth the codicil and the Civil Code, o1392 and its reversion to the estate ocase of such non-compliance, this Coto order the reconveyance of title ovethe estate of Jorge Rabadilla to the eBelleza. However, plaintiff-appellant separate proceedings to re-open Alej

secure the appointment of an adminiLot No. 1392 to Aleja Belleza's legal enforce her right, reserved to her by ther legacy of 100 piculs of sugar per produce of Lot No. 1392 until she die

"Accordingly, the decision appealed fand another one entered ordering deas heirs of Jorge Rabadilla, to reconv1392, together with its fruits and interAleja Belleza.

SO ORDERED."5
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12/79

Petitioner, in the instant petition for review, submits that the appellate courthas erred in: (1) ordering the reversion of Lot 1392 to the estate of AlejaBelleza on the basis of paragraph six of the codicil, and (2) in ruling that thetestamentary institution of Dr. Jorge Rabadilla is a modalinstitution within thepurview of Article 882 of the Civil Code. Additionally, he avers that respondentcourt has improvidently deviated from the sole issue raised which is theprematurity of the action before the court a quo. Upon the other hand,respondent would have this Court sustain the assailed decision of the Court ofAppeals contending tha t the appellate cour t is completely justified in delvinginto the nature of the institution in the codicil, the same having a direct

significance on the issue of whether or not the complaint before the trial courthas been prematurely filed. Private respondent adds that the institution inquestion is modal within the context of Article 882 of the Civil Code whichgives her the right to seize the subject property.

I agree with my colleagues that "substitution" is not here apropos. Substitutionis the appointment of another heir so that he may enter into the inheritance indefaultof the heir originally instituted.6Substitution is simple when thetestator designates one or more persons to substitute the heir or heirsinstituted in case the latter should die before him, or should not wish, orshould be incapacitated to accept the inheritance, and a substitution without astatement of the cases to which it refers shall comprise all said three cases.7There is no simple substitution that takes place where the heir originallyinstituted is able to succeed.8Fideicommissary substitution, on the otherhand, occurs when the fiduciary or first heir instituted is entrusted with theobligation to preserve and to transmit to a second heirthe whole or part of the

inheritance.9Every fideicommissary substitution should be expressly made in

order that it may be valid.10The term "fideicommissary substitution" neednot, however, be used in the will; It is enough that there is a clear andunequivocal statement that one shall enjoy usufructuary or other rights, shortof naked ownership or title, over certain property of the testator with theobligation to preserve the property and to transmit it to a second heir. 11It isessential for the validity of a fideicommissary substitution that both heirs areliving and qualified to succeed at the time of death by the testator and that thesubstitute does not go beyond one degree from the heir originally instituted.The term "one degree" has been the subject of varied interpretation. One viewis to the effect that the term means one transfer, citing the Supreme Tribunalof Spain and as advocated by eminent civilists as Justices J.B.L. Reyes, R.Puno, E. Caguioa, and D. Jurado. In Ramirez vs. Ramirez,12decided on 15February 1982, the Court, however, adopted the literal view that "one decree"means relationship or generation as so advanced by equally eminent writersDr. A. Padilla, Justice E. Paras and Dr. A. Tolentino. In the subsequent caseof the Testate Estate case of Fr. Aranas,13however, the Court upheld the

usufructuary right of the Roman Catholic Church under a legacy that nowrenders doubtful the continued validity of the Ramirez doctrine. dctai

The institution of Jorge Rabadilla in the Belleza codicil partook the nature ofan institution sub modo, rather than one of substitution, governed by theprovisions of Article 882 of the Civil Code. This law provides:

"ARTICLE 882.The statement of the object of theinstitution, or the application of the property left by the

testator, or the charge imposed by him, shall not beconsidered as a condition unless it appears that such washis intention.

"That which has been left in this manner may be claimedat onceprovided that the insti tuted heir or his heirs g ivesecurity for compliance with the wishes of the testator andfor the return of anything he or they may receive, togetherwith its fruits and interests, if he or they should disregardthis obligation." (Italics supplied)

A mode is distinguished from a condition contemplated in the rules onsuccession in that the latter dictates the efficacy, either in a suspensive orresolutory manner, of a testamentary disposition while the former obligatesthe instituted heir to comply with the mandate made by the testator but doesnot prevent the heir from at once claiming the inheritance provided he givessecurity to ensure compliance with the will of the testator and the return of the

thing received together with its fruits and interests, "should (the heir) disregardthis obligation." The obligation imposed upon the heir or legatee is deemednot to be a condition for his entry forthwith into the inheritance unless acontrary intention of the testator is evident. In case of doubt, the institution isconsidered modal, rather than conditional. Much of the variance in the legaleffects of the two classes,14however, is now practically theoretical andmerely conceptual. Under the Old Civil Code15an institucion sub modo couldbe said to be more akin to an institution sub demonstratione, or an expressionof a wish or suggestion of the testator that did not have any real obligatoryforce, that matter being left instead to the discretion of the heir, i.e., whether toabide by it or not. The amendatory provisions of the New Civil Code nowhardly differentiates between the principal effect of the non-compliance withthe mode and that of the occurrence of a resolutory condition expressed in thewill. In both instances, the property must be returned to the estate of thedecedent to then pass on under the rules of intestacy.

ACCORDINGLY, I also vote for the dismissal of the instant petition.

Panganiban, J., concurs.

[G.R. No. 149017. Novembe

VALENTE RAYMUNDO, petitioner,ISAGON VDA. DE SUAREZ, DANIL

EUFROCINA SUAREZ, MARCELO EVELYN SUAREZ, ET AL., respond

D E C I S I O N

NACHURA, Jp:

This petition, filed under Rule 65 of the Rules of Appeals (CA) Decision1and Resolution2in CAreversed, set aside and recalled the Regional TrCivil Case No. 51203.

First, the long settled facts.

Marcelo and Teofista Isagon Suarez'4marriagematerial wealth and progeny in herein respondeEufrocina, Marcelo Jr., Evelyn, and Reggineo,6their marriage, governed by the conjugal partneracquired numerous properties, which included thland situated in Barrio Caniogan, Pasig with an acovered by Transfer Certificate of Title (TCT) Noin Pinagbuhatan, Pasig, with an area of 1,020 sqDeclaration No. A-016-01003; and (3) Lot Nos. 5Tax Declaration No. A-01700723 (subject prope

After the death of Marcelo Sr. in 1955, Teofista awell as Elpidio Suarez,7executed an Extrajudicpartitioning Marcelo Sr.'s estate, thus: DHTCaI
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