Section 3. — Substitution of Heirs

Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir origi- nally instituted.1

Concept of Substitution of Heirs.

The testator may not only designate the heirs, devisees or legatees

also permitted by law to make a second or subsequent designation in case the heirs, devisees or legatees originally appointed should die before him or should not want or cannot accept the inheritance.

substitution of heirs appointment of another heir so that he may enter into the

inheritance in default of the heir originally instituted definition not broad enough to cover fideicommissary

substitutions substitution is the appointment of another heir so that he

may enter into the inheritance in default of or subsequent to the heir originally instituted.

substitution of heirs is nothing more than a subsidiary institution of a second or subsequent heir, devisee or legatee, subordinated to the principal or original institution and dependent upon some event which is more or less uncertain

it is a conditional institution Although the institution of an heir is no longer necessary for

the validity of a will, and dying intestate is no longer considered a disgrace, substitution of heirs still subsists

recognition of the principle of freedom of disposition which, with certain limitations, is the supreme law in testamentary succession

General Limitation

If the heir for whom a substitute is appointed is a compulsory heir, the rule is that the substitution cannot affect the legitime of such heir.

right to appoint a substitute for the heir instituted is based on the testator’s freedom of disposition

same limitation which is imposed upon such freedom of disposition must also be imposed upon such right to appoint a substitute

clear from the provisions of Arts. 842, 864, 872, and 904.

Advantage of Substitution in a will

prevents the effect of preterition prevents the falling of property in the wrong hands awards those who are good to the testator, but are not

compulsory heirs

Art. 858. Substitution of heirs may be:

(1) Simple or common;

(2) Brief or compendious;

(3) Reciprocal;or

(4) Fideicommissary.6

Kinds of Substitution

four classes of substitutions but only distinct types of substitution are simple or

common substitution and fideicommissary substitution others are merely variations of the first.

Simple or common (vulgar) substitution

is that which takes place when the testator designates one or more persons to substitute the heir or heirs instituted in case such heir or heirs 1. should die before him2. or should not wish to accept the inheritance3. or should be incapacitated to accept the inheritance

If reason of substitution expressly stated, only for that reason may the heir be substituted

o Ex. If heir predecease testator- only for that reason may substitution take place, substitution may not take place if the heir become incapacitated

But where simple substitution is without any statement of the cases to which it refers, it shall comprise of the 3

o Any of the 3 instances may be a cause for substitution

Brief of Compendious

Brief

When there are two or more persons designated by the testator to substitute for only one heir

Compendious

when there is only one person designated to substitute for two or more heirs

Reciprocal

When two or more persons are not only instituted as heirs, but are also designated mutually as substitutes for each other, the substitution is called

Fideicommissary substitution

is that which takes place when the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, provided such substitution1. does not go beyond one degree from the heir

originally instituted2. that the fiduciary or first heir and the second heir are

living at the time of the death of the testator

old Code, there were six classes of substitutions of heirs. vulgar or common, pupilar, ejemplar, fideicomisaria,

brevilocua o compendiosa, and reciproca. All retained except pupilar and ejemplar pupilar

o was a type of substitution by which parents and other ascendants may appoint substitutes to take the place of their descendants of both sexes

under eighteen years of age in case the latter dies before attaining such age

ejemplar o was one by which any ascendant may appoint a

substitute for his descendant over eighteen years of age who has been legally declared to be incapacitated on account of mental alienation

these two classes of substitution were not retained in the New Civil Code because they are out of use and impracticable.

no known record that any parent or ascendant in this country has ever made use of these two provisions of the Spanish Code

Art. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapaci- tated to accept the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preced- ing paragraph, unless the testator has otherwise provided.14

Art. 860. Two or more persons may be instituted for one; and one person for two or more heirs.15

Art. 861. If heirs instituted in unequal shares should be recip- rocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly ap- pears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution.16

Art. 862. The substitute shall be subject to the same charges and conditions imposed upon the Instituted heir, unless the testa- tor has expressly provided the contrary, or the charges or condi- tions are personally applicable only to the heir instituted.17

Simple or Common Substitution

the designation made by the testator of one or more persons to substitute the heir or heirs instituted in case such heir or heirs should

o die before himo or should not wish to accept the inheritanceo or should be incapacitated to accept the

inheritance true basis of this type of substitution, whether simple, brief

or compendious, or reciprocal, rests not merely upon convenience

but upon the principle that the testator should have the freedom to reward those individuals, who, although they may not legally occupy the first place in his heart, yet they are more deserving of his liberality than those to whom the inheritance would pass if substitution is not allowed

purpose of this type of substitution is to prevent the inheritance from passing by operation of law to those to whom the same would pass either

o by right of representationo or by right of accretiono or by right of intestate succession, were it not for

the substitution.

When Substitution Takes Place

in case the heir instituted should die before the testator; in case he should be incapacitated to succeed from the

testator; in case he should not wish to accept the inheritance If there is no statement of the case or cases to which the

substitution refers, the presumption is that it shall comprise all of the three above-mentioned cases

Number of Substitutes.

no limitation upon the number of persons who may be designated as substitutes

two or more persons who are designated as substitutes for only one heir; the substitution is brief (breuiloeua);

if there is only one person who is designated as substitute for two or more heirs, it is compendious (compendiosa)

Shares of Substitutes

When two or more persons are instituted by the testator as heirs and they are also designated mutually or reciprocally as substitutes for each other, the substitution is reciprocal (reciproca).

Like the other types of vulgar or common substitution, it may also take place in case anyone of the heirs dies before the testator, or repudiates his share of the inheritance, or is incapacitated to succeed from the testator.

If there are only two instituted heirs and they are designated mutually as substitutes for each other

o the substitute shall acquire the entire share of the heir who dies, renounces, or is incapacitated, even if the shares of both are unequal

ex. if A is instituted to 2/3 of the entire inheritance and B is instituted to 1/3, and the former dies before the testator, or is incapacitated to inherit, or repudiates his inheritance, the result is that the latter shall acquire the 2/3 portion which is rendered vacant as a substitute and the remaining 1/3 as an instituted heir.

If there are three or more instituted heirs and they are designated mutually as substitutes for each other, the substitutes shall have the same share in the substitution as in the institution

Problem — The testator instituted A to 1/2 of the entire inheritance, B to 1/4, C to 1/6, and D to 1/12, and, at the same time, designated each and everyone of them as a substitute of the others. The net remainder of the estate is P36,000. B, how- ever, repudiated his share. What will happen to this vacant share?

Solution — It is evident that as a result of B’s repudiation, 1/4 of the inheritance, or P9,000, is rendered vacant. This vacant share shall pass to A, C, and D in proportion to their respective shares in the institution. Reducing such shares to their lowest common denominator, the share of A in the vacant portion be- comes 6/12, the share of C becomes 2/12, while the share of D is 1/12. The proportion of their respective shares is, therefore, 6:2:1. As substitutes, A is entitled to 6/9 of P9,000, or P6,000, C is entitled to 2/9 of P9,000, or P2,000, and D is entitled to 1/9 of P9,000, or P1,000. As instituted heirs, A is entitled to 1/2 of P36,000 or P18,000, C is entitled to 1/6 of P36,000, or P6,000, and D is entitled to 1/12 of P36,000, or P3,000. Hence, A shall receive a total amount of P24,000, C, P8,000, and D, P4,000.

Effect of Substitution.

Once the substitution has taken place

o the substitute shall not only take over the share that would have passed to the instituted heir

o he shall be subject to the same charges and conditions imposed upon such instituted heir.

two exceptions to the second ruleo when the testator has expressly provided the

contrary;o ,when the charges or conditions are personally

applicable only to the heir instituted ex. testator has imposed upon his nephew condition that

he shall get married to a certain girl, and a niece of the testator is substituted for the nephew, it is evident that the condition is personally applicable only to such nephew.

Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of death of the testator

Art. 864. A fideicommissary substitution can never burden the legitime

Art. 865. Every fideicommissary substitution must be expressly made in order that it may be valid.

The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise

Art. 866. The second heir shall acquire a right to the succes- sion from the time of the testator’s death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs.

Fideicommissary Substitution.

Spanish Civil Code

“Fideicommissary substitutions, by virtue of which the heir is charged with the preservation and transmission to a third party of the whole or part of the inheritance, shall be valid and shall be effective, provided they do not go beyond the second degree, or they are made in favor of persons living at the time of the death of the testator.

considered necessary for the prosperity and prestige of the family bearing in mind the lack of intelligence, weakness of character, vanity and prodigality of the descendants to whom the property may go.

power to appoint a fideicommissary substitute is a complement of the freedom of disposition which gives powerful stimulus to the accumulation of wealth, and thus maintains the tradition and the social standing of the family.

prevents the free circulation of the property because the testator may institute heirs and appoint substitutes under diversified terms and conditions which may render the ownership of property very unstable

an instance of suspended ownership. property involved may be locked up or entailed in the same

family for many years original purpose of this substitution is feudalistic and is not

in accord with the modern concept of ownership which puts the welfare of society over and above that of a particular family.

New Code

fideicommissary substitutions cannot go beyond one degree for the heir originally instituted, and provided the first and second heirs are living at the time of the death of the testator

property cannot stay in the family for the same length of time authorized in the provision of Article 781 of the Spanish Civil Code.

does not unreasonably impair the freedom of disposition of the property by the testator.

nature and requisites of fideicommissary substitution are still the same.

Fideicommissary or indirect substitution

the substitution which takes place whenever the testator institutes a person as heir, entrusting him with the obligation to preserve and to transmit to a second heir the whole or a part of the inheritance.

This substitution exists with the concurrence of three persons:

o the testator who orders the substitution, sometimes known as the fideicomitente;

o the first heir charged with the preservation and the transmission of the inheritance, known as the heredero fiduciario or fiduciary;

o the second heir to whom the inheritance is transmitted, known as the heredero fideicomisario or fideicommissary.

essential difference between the fidocommissary and trust lies in the fact that, in the first, both the fiduciary and the fideicommissary heirs are true heirs of the testator, which cannot be said of the trustee.

As a consequence, the fiduciary heir in fideicommissary substitutions is entitled to the enjoyment of the property, while the trustee in trusts is not.

Requisites

1. There must be a first heir primarily called to the enjoyment of the estate.

2. There must be a second heir. 3. There must be an obligation clearly imposed upon the first

heir to preserve the estate and to transmit it to the second heir

4. The second heir or fideicommissary should be entitled to the estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary not a requisite, but merely a consequence of the

substitution.

Navarro Notes:

1. There must be a fiduciary and fideicommissary2. Obligations to preserve and transmit on the part of the

fiduciary3. They must be one degree apart in relationship4. Both must be living at the time of death of testator

Limitations.

1. the substitution must not go beyond one degree from the heir originally instituted;

2. the fiduciary and the fideicommissary must be living at the time of the death of the testator;

3. the substitution must not burden the legitime of compulsory heirs

4. the substitution must be made expressly

First Limitation.

the substitution must not go beyond one degree from the heir originally instituted

How shall the word “degree” be interpreted? 2 views 1st view :

o “degree” means “degree of relationship or refers to genereation

o traditional viewo substitution must not go beyond one degree

from the heir originally institutedo what is meant is that the fideicommissary

substitute must not be beyond one degree of relationship from the fiduciary heir.

o only the child or parent of the latter can be appointed as fideicommissary heir.

o Second heir must be related to and be one genertation from the first heir

2nd viewo “degree” (grado) is the equivalent of

designation or transmission (llamamiento)o refers to transmission of propertyo substitution must not go beyond one degree

from he heir originally institutedo substitution must not extend beyond one

degree of designation from the heir originally instituted.

o any person, whether natural or juridical, or any entity not disqualified by law to inherit from the testator can be appointed as fideicomissary heir

o What is, therefore, prohibited by the law to inherit from the testator can be appointed as fideicomissary heir.

o What is, therefore, prohibited by the law under this view is a case where three or more persons including the fiduciary heir would be entitled to the successive enjoyment of the estate.

New Civil Code, the members Code Commission adhered to, the traditional view.

it described fideicommissary substitution as “an instance of suspended ownership, aside from the fact that the property involved is locked up or entailed in the same family for many years.”

But modern view is more sound for the following reasons:(1) It is more in conformity with public policy which is

designed to increase the circulation or socialization of wealth.

(2) The law itself says that the “substitution” (it does not use the word “substitute”) must not go beyond one degree from the heir originally instituted. If we accept the traditional view, the

law would read as follows: “provided that the substitution does not go beyond one degree of relationship from the heir originally instituted,” which would not make any sense at all, where as if we accept the modern view the law would read as follows “provided that the substitution does not go beyond one degree of transfer from the heir originally instituted,” which would certainly make sense.

(3) Besides, construing No. 3 of Art. 867 of the Code in re- lation to Art. 863, it is clear that the only way by which the first limitation prescribed in the latter article can possibly be violated by the testamentary disposition referred to in the former would be to interpret the phrase “one degree” as “one degree of transfer” and not as “one degree of relationship.”

(4) Finally, although this is merely persuasive in character, the modern view has been upheld by the Supreme Tribunal of Spain in decisions promulgated in 1940 and 1949.42

Second Limitation.

fiduciary and the fideicommissary must be living at the time of the death of the testator

Duality of the inheritance rule is in conformity with the requirement that there must be

a duality of heirs or a double institution of heirs in the substitution.

Since both the fiduciary and the fideicommissary are true heirs of the testator, it is essential that “in order to be capacitated to inherit” both of them “must be living at the moment the succession opens.”

Third limitation.

the substitution must not burden the legitime of compulsory heirs

reiteration of the principle that the legitime of compulsory heirs cannot be impaired.

refer only to the disposable free portion if the testator institutes his own son as the first heir or

fiduciary imposing upon him the obligation to preserve and to transmit to the second heir or fideicommissary the whole or part of the inheritance

the substitution shall be understood to refer only to the disposable free portion of such inheritance.

Fourth limitation.

it is essential for the validity of a fideicommissary substitution that it must be expressly made.

two ways whereby the substitution may be expressly madeo first is by giving it the name of a fideicomissary

substitution testator institutes two heirs and he calls

one the fiduciary heir and the other the fideicommissary substitute

o second is by imposing upon the fiduciary the absolute obligation to preserve and to deliver the property to a second heir

testator imposes upon the former the absolute obligation to preserve the estate for a stated period and, after the

expiration of the period, to transmit it to the latter

no fideicommissary substitution, because the substitution has not been made expressly

o if the testator merely designates a second heir to succeed in default of the first heir

there is only a simple or common substitution.

o or merely provides that the second heir shall succeed in case of the death of the first heir

there is only a simple or common substitution.

o testator institutes two heirs and it is provided that in case of the death of one or of both, the portion rendered vacant shall be assigned to the legal heirs or to other persons.

Rights of Fiduciary.

Code does not expressly state what is the nature of the right of the first heir or fiduciary over the property or inheritance pending its transmission or delivery to the second heir or fideicommissary.

cannot be a mere agent of the fideicomitente or a mere administrator of the property.

he acquires upon the death of the fideicomitente all of the rights of a usufructuary until the moment of delivery to the fideicommissary.

pending the transmission or delivery, he possesses the beneficial ownership of the property, although the naked ownership is vested in the fideicommissary

no power to alienate property but may alienate right of usufructuary over the property

if fiduciary has creditors they cannot run after the property subject to fideicommissary substitution

o but they may recover the fruits of the property while the same is still in the hands of the fiduciary

Obligations of Fiduciary

two obligations of the first heir or fiduciary. 1. to preserve the property or inheritance 2. to transmit the said property or inheritance to the

second heir or fideicommissary In order that the fideicommissary substitution shall be valid,

it is essential that such obligation must be clearly imposed it is required that there must be an order or charge upon

the first heir to preserve and transmit to a third person or entity the entire inheritance or a part thereof.

Corollary to the obligation, of the fiduciary heir to preserve is the obligation to make an inventory

o since it would be impossible for the fiduciary to make the necessary deductions for legitimate expenses, credits and improvements once the property is delivered to the fideicommissary unless there had been a previous inventory.

Preservation of inheritance.

first heir or fiduciary is a true heir of the testator but his rights as such over the property which is transmitted

to him upon the death of the testator is necessarily limited by his obligation to preserve the said property.

obligation to preserve excludes the right to dispose the property either by an act inter vivos or an act mortis causa.

fiduciary heir has all the qualities of a usufructuary

but he also has those of an absolute owner without the power of alienation

But he may alienate his right of usufruct over the property.

Transmission of inheritance.

Code is silent with regard to the time when the property or inheritance shall be transmitted by the fiduciary to the fideicomissary.

Because it is subject to the testator’s freedom of disposition.

testator can make the substitution purely, with a term, or even conditionally.

Rule:o If he designates a day for the transmission or

delivery by limiting the period in which the fiduciary heir may enjoy the property or inheritance, such designation shall be respected.

o If he does not fix a period for the transmission or delivery, it is presumed that he leaves the matter to the discretion of the fiduciary.

o If there is doubt or litigation regarding the time for such transmission or delivery, it is presumed that it will be made after the death of such fiduciary.

when the substitution is conditional the fideicommissary has only a mere hope or expectancy pending the fulfillment of the condition

but once the condition is fulfilled, the obligation to transmit or deliver the property arises

Right to deductions

“Legitimate expenses” o refer to those which were made for the

acquisition and preservation of the property or inheritance.

“Improvements,” o refer to necessary as well as to useful expenses.

Other expenses, such as those for pure luxury or mere pleasure, are excluded.

amount of the deductions to which the fiduciary is entitled is not the actual amount of the expenses

o but the increase in value of the property or inheritance.

o Consequently, the property is really preserved

Rights of Fideicommissary

the second heir or fideicommissary inherits not from the first heir or fiduciary, but from the testator or fideicomitente.

Perez vs. Garchitorenao the fact that the fideicommissary is entitled to the

estate from the time the testator dies, since he is to inherit from the latter and not from the fiduciary, is a natural consequence of a fideicommissary substitution rather than a requisite.

the nature a the right of the fideicommissary heir pending the delivery or transmission of the property or inheritance is that of a naked owner

he acquires a right to the inheritance from the moment of the death of the testator.

this right is subject or without prejudice to the corresponding right of the fiduciary heir

fiduciary is entitled to all of the rights of a usufructuary

fideicommissary is also entitled to all of the rights of a naked owner.

if the testator designates A and B as the fiduciary and fideicommissary heirs, respectively, of his entire state, imposing the obligation upon A to preserve and to transmit the entire estate to B after the expiration of ten years, there is no question that the latter shall be entitled to the entire estate from the moment of the death of the testator. If he dies before the expiration of the period and before the death of the fiduciary, his right to the estate shall be transmitted to his own heirs.

When the fideicommissary substitution is conditional, however, the fideicommissary heir has only a mere hope or expectancy.

if the fideicommissary dies before the condition has been fulfilled, he acquires no right to the object of the fideicomisum, and, as a consequence, he transmits no right whatsoever to his own heirs

Art. 867. The following shall not take effect:

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing, upon the fiduciary the absolute obligations to deliver the property to a second heir;

(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in Article 863;

(3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in Article 863, a certain Income or pension;

(4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator.55

Art. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written.

Void Substitutions

intended to implement the limitations upon fideicommissary substitutions which are prescribed in Art. 863

as well as the requirement which is stated in the first paragraph of Art. 865.

rules are necessary because without sanction or implementation, it would be relatively easy for the testator to attain by indirect means those ends or objects which such limitations or requirements are intended to prevent.

first rule

it is also a confirmation of the principle that in fideicommissary substitutions there must always be an obligation clearly imposed upon the first heir or fiduciary to preserve and to transmit the property or inheritance to the second heir or fideicommissary

second rule

designed to prevent the perpetual or temporary entailment

by the testator of his property. Purpose:

o To give more impetus to the socialization of the ownership of property

o To prevent the perpetuation of large holdings, which give rise to agrarian trouble

the phraseology of the law is rather confusing limitation which can possibly be violated is that provided for

in Art. 870 of the Code. prohibition to alienate is good only for twenty years Beyond that, it is void. It is submitted that this is what is

really meant by the law Prohibition of more than 20 years before alienation is to

prevent entail of property or its withdrawal from circulation if the testator had appointed A as the fiduciary heir and B

as the fideicommissary substitute, and in the will, there is a provision prohibiting the alienation of the estate for a period of forty years, it is clear that there is no violation or infringement of any of the limitations pre- scribed in Art. 863. It is, however, evident that there is a violation of the limitation prescribed in Art. 870. Consequently, if the testator died in 1960 and A, the fiduciary heir, died in 1965, the prohibition imposed by the testator would still be good up to 1980 in conformity with the rule stated in Art. 870. B, the fideicomissary substitute, will still be bound by the prohibition to alienate up to 1980. It must be observed, however, that if the testator died in 1950, although the prohibition to alienate ceased to apply in 1970 in conformity with the rule stated in Art. 870, A, the fiduciary heir, could not yet alienate the property. This is so, because of another mandate of the testator that he must preserve and transmit the property to B, the fideicomissary heir. Once the property is transmitted to B, it becomes free property.

Navarro notes:

Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in Article 863

limit refers to one degree moreover, following 870, if the testator prohibits alienation

for a definite period, it cant exceed 20 years prohibition is to prevent the entail of property or its

withdrawal from circulation prohibition to alienate apply only if fideicommissary

substitution is within 1 degree of fiduciary there can be several transfers and prohibition may apply to

several fiduciary substitution it is possible to establish fideicomissary substitution in favor

of an unlimited number of persons, provided, that all of them are one generation from the first heir and are living at the time of death of the testator

as long as all fideicommissary are all one degree removed from fiduciary

prohibition against permanent or temporary prohibition for alienation with one degree limitation applies only to fideicommissary substitution

if substitution not fideicommissary and only simple 870 (20 years) shall apply

third rule

seeks to implement the limitations prescribed in Art. 863 by declaring as ineffective those dispositions which would render such limitations illusory.

there is in reality no substitution but an institution of an heir

with a charge however, the Code applies by analogy to the beneficiaries

the same limitations which are applied to fideicommissary substitutions.

fourth rule

its object is for the prevention of the transmission of property by secret instructions

so that it may not be applied for purposes which are illegal or illicit

or in order that it may not pass to those who are incapacitated to inherit from the testator.

there is no fideicomissary substitution since there is no duality of heirs;

there is a simple institution of heirs, but the inheritance is not for the benefit of the instituted heir

since it will be applied or invested according to the secret instructions which had been communicated to such heir by the testator.

In such case, the institution of heir is valid, although the instructions are void.

no conflict between this rule and the rule stated in No. 4 of Art. 867

Art. 786 of the Codeo the testator may entrust to a third person the

distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums of money are to be given or applied.

o in 786 testator has already determined the persons to whom the property shall go, such as the poor, relatives, establishments, and so forth

o he merely empowers another person to make the distribution among such poor, relatives or establishments

867o testator does not determine, but instead institutes

an heir with a charge upon his conscience regarding the destination, application or investment of the property, without saying precisely to what or in whose favor such property shall be given or applied

o the act does not fall within the purview of Art. 786o enters the sphere of Art. 867o law considers that there is a substitution in such

case since the property shall pass from a first heir to a second heir, but inasmuch as the second heir is not known, it declares the substitution to be without effect.

Effect of Void Fideicommissary Substitutions

nullity of the fideicomissary substitution does not prejudice the validity of the institution of the heirs first designated;

the fideicomissary clause shall simply be considered as not written.

Rule logical considering that the fideicomissary substitution is the subsidiary institution, while the first institution of heirs is the principal institution.

Navarro notes:

If testator died before fideicommissary, he acquires right to the property upon death of testator and upon fideicommssary’s death his right is passed to his children

o 866 provides that the second heir shall acquire a right to the succession from the time of the testator’s death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs.

o The property is part of fiduciary’s estate and fiduciary’s heirs may not claim, fiduciary only has beneficial ownership over the property

If fideicommissary died before testator, fiduciary will get the property

o 868 provides nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written

o fideicommissary’s heirs cannot claim property and inherit it because in order that the transmission of the rights of the fideicommissary to his own heirs take place, its is necessary that he should survive the testator

o if he dies before the testator, the substitution is extinguished

if fiduciary died before testator o 2 viewso 1st view: strictly speaking NOo 2nd view : liberally speaking :yes

because ultimately, the property subject of fideicommissary will go to the fideicommissary

the fiduciary has only a temporary possession

furthermore, the same may now be considered as a simple substitution

Art. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply.

Disposition of Usufruct to Various Persons.

Rule in first sentence is a logical consequence of the principle that the owner of a thing has the power to dispose of not only the whole but also any part of his right of ownership over the thing.

rule in the second sentenceo although the rules regarding fideicomissary

substitution are applicableo in reality, there is no fideicommissary substitutiono but merely a simple institution of heir combined

with a legacy.

Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.

Disposition Declaring Estate Inalienable.

provision is added in order “to give more impetus to the socialization of the ownership of property

and to prevent the perpetuation of large holdings which give rise to agrarian troubles

if the testator states in his will that the property bequeathed or devised shall not be alienated for a period of fifty years, under this provision, the prohibition shall be valid only for twenty years

o but with respect to the excess it is null and void. If the prohibition to alienate is perpetual, there is no reason

why the entire prohibition should be nullified. In order to effectuate the testatorial intent, it shall be valid

but only for twenty years. if it so happens that in addition to the prohibition to alienate

there is a fideicomissary substitution expressly madeo such prohibition shall not only be limited to

twenty years o but it shall have to be complemented by another

mandate of the testator the obligation of the first heir to

preserve the property for the benefit of the second heir.

o Consequently, there can be no conflict between the provision of this article and that of No. 2 of Art. 867.

Section 4 — Conditional Testamentary Dispositions

Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.1

Freedom of Disposition.

restatement of the testator’s freedom of disposition. Although the article speaks only of institution of heirs, there

is no reason why the provision cannot be applied to any kind of testamentary disposition.

whether the testamentary disposition is an institution of heir, or a devise or legacy, under this article, the testator is free to impose any condition, or mode, or term

Conditional Testamentary Dispositions.

testamentary disposition is conditional when its effectivity is subordinated to the fulfillment or nonfulfillment of a future and uncertain fact or event.

condition o future and uncertain fact or event upon the

fulfillment of which the testamentary disposition is made to depend

testamentary disposition conditional o it is necessary that the condition must fairly

appear from the language used in the willo If it does not appear in the will itself, or in a

document executed with the same formalities as a will, it is not binding.

o In such case the testamentary disposition is pure, and not conditional.

If condition is not attached to the legacies and devises, or without stating that failure to comply with the order shall result in the nullity of the legacies and devices

o such legacies and devises are not conditionalo since the condition does not fairly appear from

the language used in the will. But condition without prejudice to legitime of heir

Art. 872. The testator cannot impose any charge, condition, or

substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.

Conditions Which Impair Legitime

rule reiterates the principle of the untouchability of the legitime of compulsory heirs.

only one instance under our law where the testator is allowed to impose a charge upon the legitime of compulsory heirs

Exception:o when the testator declares that the hereditary

estate shall not be partitioned for a period which shall not exceed twenty years

o Art. 1083 of the Codeo this power of the testator to prohibit the division

of the estate applies even to the legitime of compulsory heirs.

condition imposed upon the legitime of a compulsory heir is a condition which is contrary to law

even looking at it from the viewpoint of Art. 873, the same shall be considered as not imposed.

Art. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide.

Impossible Conditions

condition is impossible o when it is not possible of realization because it is

contrary to either, physical, juridical or moral laws effect if impossible conditions and those contrary to law or

good customs imposedo it shall be considered as not imposed even if the

testator should otherwise provide even if expressly stated

o but the institution of heir or the devise or legacy is not affected

o presumption that the condition is due to mistake or oversight or merely a whim or caprice of the testator

o condition must be disregarded as a matter of justice to the instituted heirs, devisees or legatees

time considered in determining whether the condition is impossible or not is the time when the condition is to be fulfilled

effect of an impossible condition when it is attached to a testamentary disposition and its effect when it is attached to a civil obligation different

Art. 1183 : “Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them.”

o the conditional obligation itself is void. Art. 873

o the condition is void but the disposition is valido testator bequeaths to a certain woman P10,000 if

she will consent to be the mistress of a certain person

the condition is void, but the legacy is valid

o if A obligates himself to give P10,000 to B if the

latter consents to be his mistress for six months the obligation is a complete nullity.

Reason:o 873: the testamentary disposition, strictly

speaking, does not depend upon the fulfillment of the condition for its perfection but upon the death of the testator

o 1183: the obligation depends for its perfec- tion upon the condition which is impossible or which is contrary to law or good customs.

“no-contest and forfeiture” clause valid Testamentary disposition subject to the condition that if the

designated legatee or devisee opposes the probate of the will, he will then forfeit the legacy or devise

not contrary to public policy testator’s freedom of disposition if testator dies, and the designated legatee or devisee

interposes his opposition to the probate and subsequently, after hearing, the probate court issues an order allowing the will, has the legatee or devisee forfeited his right under the will?

everything will depend upon whether the beneficiary had acted in good faith in opposing the probate of the will or not.

If he had acted in good faith, he does not forfeit the legacy or devise;

if he had acted in bad faith, he forfeits the legacy or devise.

Art. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter’s ascendants or descendants.

Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood.

Absolute Conditions Not to Contract Marriage.

condition which is frequently imposed by a testator upon an instituted heir, or upon a devisee or legatee is the condition not to contract a first or a subsequent marriage.

condition is contrary to morals and public policy because it would deprive a person of one of his inherent or

inalienable rights — the right to choose his own status the Code in Art. 874 considers it as not imposed.

Condition not to contract first marriage.

absolute condition not to contract a first marriage shall be considered as not written

rule is absolute in character As in the case of impossible conditions the validity of the institution of heirs or of the devise or

legacy is not affected, although the condition is void. if a person institutes one of his daughters as heir to the free

portion of his estate subject to the condition that she will never get married

o the institution is valido but the condition is void

the institution shall be considered as pure and not conditional.

Condition not to contract subsequent marriage.

absolute condition not to contract a subsequent marriage the rule is subject to several exceptions

1. when it is imposed by the deceased spouse himself; 2. when it is imposed by the ascendants of the deceased

spouse 3. when it is imposed by the descendants of the

deceased spouse. if the testator institutes his wife, as heir, or appoints her as

a devisee or legatee, he may validly impose upon her the absolute condition not to contract a subsequent marriage.

same is true if a person institutes his daughter-in-law, who was formerly married to a deceased son, or his stepmother, who is the widow of his deceased father.

basis of these exceptions o love which transcends even death itselfo conjugal and family affection as a means of

securing more fidelity, even beyond the grave o to allow the property of the deceased spouse or

of his or her ascendants or descendants to be enjoyed by the person who has taken his or her place in the survivor’s heart would be an offense against his or her memory

the descendants referred to in Art. 874 are any of the descendants of the deceased spouse

o common children of deceased and surviving spouse

o legitimate children of the deceased spouse in a prior marriage

no distinction should be made because the law makes no such distinction.

Whether the descendant is exclusively of the deceased spouse or begotten with the widow or widower is immaterial

reason for upholding the prohibition is the same in either case.

ascendants or the descendants of the surviving spouse, had from a prior marriage, cannot impose the prohibition

o because they are not ascendants or descendants of the deceased spouse

Nature of condition when validly imposed.

absolute condition not to contract marriage when validly imposed is resolutory in character.

Art. 874 is concerned with heirs, devisees or legatees, who are entitled to the inheritance, devise or legacy upon the death of the testator, but lose their right thereto upon the fulfillment of the condition if validly imposed.

if the testator institutes his wife as heir subject to the condition that she will never marry again

o she immediately acquires a right to the inheritance upon the death of the testator

o but if she violates the condition by contracting a second marriage

o she loses her right to the said inheritanceo legitime, however, is not affected.

Relative Conditions Regarding Marriage.

Art. 874 applicable only when the prohibition to contract a first or subsequent marriage is absolute in character

if the prohibition is relative with respect to persons, time or place, the rule does not apply;

the prohibition or condition is valid if the testator institutes A as his heir subject to the condition

that she will not get married until she reaches the age of twenty-five, the condition not to marry is relative in character; hence, it is valid.

There are cases, however, when a relative prohibition to marry becomes in effect absolute in character rendering it practically impossible for the heir, devisee or legatee to get married at all.

o In such cases, the rule stated in Art. 873 is applicable

o Relative prohibition to contract a first or subsequent marriage must not be onerous or else it becomes an absolute prohibition in its effect

o Still void because its effect is onerous on part of the surviving spouse

o Ex. Surviving spouse prohibited to marry until he reaches age 80

Art. 874 is not applicable to a condition to get married. o Although such a condition will also have the

effect of preventing a person from choosing his own status

o nevertheless it must be considered valid since the law does not prohibit it.

authorized conditions: 1. A generic condition to contract marriage; 2. a specific condition to contract marriage with a

determinate person;3. a specific condition not to contract marriage with a

determinate person.

Navarro notes:

Summary of rules on marriage

1. The prohibition is void only when it is absolute; that is, when the heir, devisee or legatee is forbidden to marry any person at any time or place, or when is required to remain unmarried or in widowhood

2. A prohibition on a first marriage is always void, and the condition containing it will be considered as not written

3. When the prohibition refers to subsequent marriages, the general rule is that, it is void, but it is valid when imposed upon a widow or widower by :

a. the deceased spouse himself; b. the ascendants of the deceased spouse c. descendants of the deceased spouse

4. When the prohibition refers only to particular persons or group of persons, or to particular periods or places, it is not absolute but only relative, and therefore validHowever when by its terms the prohibition appears to be relative, it will be understood as absolute, if the conditions required by the testator

Art. 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void

Conditions Captatoria.

condition captatoriao the condition that the heir shall make some

provision in his will in favor of the testator or of any other person

if the testator makes a testamentary disposition in his will subject to such a condition, it is known as disposicion

captatoria. effect of a condition captatoria is to nullify the disposition

itself not only condition void but also disposition no effect and nobody inherits therein reason

o testamentary succession is an act of liberality, not a contractual agreement.

o to permit it would impair the heir’s freedom of testamentary disposition with respect to his own property as well as allow the testator to dispose of the property of another after the latter’s death

o renders will a contractual agreement , thus it will bind both parties

binding contract contrary to essence of a will which is revocable

Art. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator’s death.

This rule shall not apply when the condition, already complied with, cannot be fulfilled again.

Art. 877. If the condition is casual or mixed, it shall be sufficient if it happens or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise.

Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with.

If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again.

Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term.

Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests.

Potestative, Casual, and Mixed Conditions.

purely potestative condition

is one whose fulfillment depends exclusively upon the will of the heir, devisee or legatee and must be performed by him personally

Ex. if A is instituted as heir if he shall study law in a certain college, or if B is appointed as a devisee or legatee if she shall not get married before reaching the age of twenty- five, the condition in both cases is purely potestative.

casual condition

is one whose fulfillment depends exclusively upon chance

and/or upon the will of a third person. Ex. if a certain person is appointed as a devisee or legatee

with respect to certain properties if the testator’s race horse shall win the Senior Grand Derby, the condition is casual because its fulfillment depends upon chance.

Ex. If the testator bequeaths his law library to a certain friend, provided his son does not become a lawyer within five years after his death, the condition is also casual, because its fulfillment depends upon the will of a third person.

mixed condition

is one whose fulfillment depends jointly upon the will of the heir, devisee or legatee and upon chance and/or the will of a third person

ex. if the testator bequeaths P10,000 to A subject to the condition that A shall get married to B within five years after the testator’s death, the condition is mixed because its fulfillment depends partly upon the will of the legatee, partly upon the will of a third person, and partly upon chance.

If

Time of fulfillment.

purely potestative

general rule is that the heir must fulfill it as soon as he learns of the testator’s death.

not applicable when the condition already complied with, cannot be fulfilled again

rules are applicable only when the potestative conditions is of a positive, not a negative, character.

casual or mixed

it shall be sufficient if it happens or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise

two secondary rules1. If the condition had already been fulfilled at the time of

the execution of the will and the testator was unaware thereof, it shall be deemed to have been complied with.

Ex. if the condition imposed upon the instituted heir A is that he must get married to B, and at the time of the execution of the will the two were already married without the testator’s knowledge, the condition shall be deemed to have been complied with.

2. If the condition has already been fulfilled at the time of the execution of the will and the testator had knowledge thereof, the condition shall, as a rule, still have to be complied with, unless it is of such a nature that it can no longer exist or be complied with again.

Ex. heir who is instituted subject to the condition that he must first get married when, as a matter of fact, the testator is well aware at the time of the execution of the will that he was already married.

condition is of such a nature that it cannot be complied with

it is considered fulfilled but if the heir becomes a widower before the

death of the testator

o then the general rule will still have to apply

o in order to be entitled to the inheritance, he must get married again.

reason for difference in time of fulfillment:

special nature of both kinds of condition. potestative condition should be complied with after the

death of the testatoro because until then the will on which it depends

may be modified or even revokedo until the testator dies, there is really no condition

with which the heir, devisee or legatee could comply

o the conditional testamentary disposition is merely in potentia.

casual or mixed conditiono fulfillment is independent of or only partly

dependent upon the will of the heir, devisee or legatee

o it is sufficient that it happens or be fulfilled at anytime before or after the death of the testator

o immaterial to the testator when the condition is fulfilled

o unless knowing that said condition has already been complied with, he should again demand the fulfillment thereof

o if testator knew at the time he made his will that the condition already happened, it is presumed that he wants it to be fulfilled anew

o but despite his will, the condition will be considered fulfilled if it cannot be repeated or it cannot exist anew

Rule in negative potestative conditions.

Art. 879 refers to potestative conditions which are negative in character

potestative conditions which consist in not doing or not giving something,

there is neither reason nor motive for delaying the delivery of the property to the heir, devisee or legatee

since the effectivity of the right of such heir, devisee or legatee does not have to depend upon any act of the latter nor upon the fulfillment of any other requisite

right of the heir, devisee or legatee does not have to be held in suspense as in the case of the heir, devisee or legatee whose right is subject to a positive condition

he acquires his right as a matter of course without any limitation other than that of not doing or not giving something, upon the death of the testator

Code authorizes the immediate delivery of the property to the heir, devisee or legatee

But in order that such heir, devisee or legatee shall not perform or give that which is prohibited, he is required to give a security or bond

o “caucion muciana.” In case the mandate or order of the testator is violated

o the heir, devisee or legatee shall return whatever he may have received, together with its fruits and interests

o In case he cannot, the security shall have to

answer for the deficiency. Until the condition is violated he shall continue in the

possession and enjoyment of the property.

Who can demand for the constitution of the bond or security?

bond or security is constituted in favor of those to whom the property would pass in the event that the testator’s mandate is not complied with.

these same persons must have the right to demand for the constitution of the bond or security

they can compel the heir, devisee or legatee to file the required bond or security

if such heir, devisee or legatee fails to do so, then he shall be placed in the same position as an heir, devisee or legatee instituted or appointed under a suspensive condition

o according to the second paragraph of Art. 880o the estate shall be placed under administration

until the security is given o or until it is certain that it will be impossible to

perform that which is prohibited by the testator.

Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term.

The same shall be done if the heir does not give the security required in the preceding article.

Art. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court.

Suspensive and Resolutory Conditions

suspensive condition

a condition upon the fulfillment of which successional rights arising from an institution of heir or from a devise or legacy are acquired.

effectivity of the institution of heir, devise or legacy depends upon the fulfillment of the condition

to be entitled to claim their rights arising from the institution of heir and from the legacy, it is essential that the condition shall be complied with.

ex. A is instituted as heir if he gets married, and B is appointed as legatee with respect to certain properties if he passes the bar examination in his first attempt, the condition in both cases is suspensive in character

condition has the effect of suspending not only the demandability of the right, but the right itself.

Nature of right: o what is acquired by the heir, devisee or legatee is

only a mere hope or expectancy o a hope or expectancy that is protected by the lawo pending fulfillment of condition, heir, devisee or

legatee cannot demand yet for the delivery of inheritance

Pending its fulfillment, the estate, after the death of the testator, shall be placed under administration in accordance with the provision of Art. 880.

o an administrator who will take charge of the

estate shall have to be appointedo appointment of the administrator, as well as the

manner of administration and the rights and obligations of the said administrator shall be governed by Rules 78 to 90 of the New Rules of Court.

o The administration shall last until the condition is fulfilled or it becomes certain that it cannot be fulfilled

o administration shall be terminatedo The estate shall, therefore, pass to those who

are legally entitled to the same, such as the legal heirs

resolutory condition

condition upon the fulfillment of which rights already acquired by virtue of an institution of heir or of a devise or legacy are extinguished or lost.

testamentary disposition is already effective but subject to the threat of extinction

Upon the death of the testator, she acquires her rights as heir immediately. However, if the condition is fulfilled her rights are extinguished.

ex. widow had been designated as heir by the deceased spouse subject to the conditions that she will not get married again, the condition is resolutory in character.

when the institution of heir or the devise or legacy is subject to a resolutory condition, the rights of the heir, devisee or legatee are acquired immediately upon the death of the testator.

These rights, however, are subject to the threat of extinction.

If the event which constitutes the resolutory condition happens or is fulfilled, such rights are extinguished or lost.

The inheritance or the devise or legacy shall, therefore, pass to those who are legally entitled to the same, as for instance, the legal heirs

Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by 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.

Institution Modal.

mode

the statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him

modal institution modal sub modo if the testator attaches to an institution of heir, or to a

devise or legacy a statement of 1. the object of the institution of heir or of the devise or

legacy, or 2. the application of the inheritance, devise or legacy, or 3. a charge upon the heir, devisee or legatee, the

institution or the devise or legacy is modal, not

conditional, in character it should not be understood however that every expression

of the wish of the testator, not constituting a condition, should be considered as a mode

testator may make indications, suggestions etc. which do not have a coercive or obligatory force

in case of doubt, the statement of the testator should not be considered as a mode, which imposes an obligation

o but merely a suggestion which the heir or legatee may follow or not

should not be confused with a condition.o condition

suspends, but does not obligate fulfilled in order to acquire perfect right

as heir or legateeo mode

obligates, but does not suspend complied with because of being already

an heir or legatee in general, obligatory except when

imposed for the purpose of the heir of legatee himself

following principle that the testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir or legatee 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, institution should be considered as modal and not conditional

Fulfillment or compliance

The person or persons who are entitled to demand compliance with the mode or obligation are those who are directly interested in the obligation.

If no person is directly interested in its fulfillment, or the identity of the person interested cannot be determined, the obligation is a mere advise or recommendation of the testator without any coercive force

o It becomes a mere imperfect obligation of the heir, devisee or legatee.

When may the inheritance or property be claimed by the heir, devisee or legatee?

the delivery or payment of the inheritance, devise or legacy can be claimed immediately.

necessary condition before delivery or payment that he shall file a bond as security for the performance or fulfillment of the obligation

purpose of securityo so that heir/devisee/legatee may comply with the

wishes of the testator and for the return of anything he may receive, together with its fruits and interests, if he should disregard the obligation

failure to comply with the mode or obligation o the heir, devisee or legatee shall be compelled to

return whatever he may have received by virtue of the institution or of the devise or legacy, together with its fruits or interests.

o In case he cannot, the bond or security can be made to answer for any deficiency.

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.

If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with.

Manner of Fulfillment or Compliance.

first paragraph is applicable only to instituciones sub modo second paragraph is applicable only to conditional

testamentary dispositions. o If condition is mixed and another person did not

agree or prevented t from happening, the instituted heir still cant inherit

both paragraphs are applicable whether the institution of heirs, devise or legacy is modal or conditional in character.

doctrine of constructive fulfillment

first paragraph when applied to conditional testamentary dispositions

o if condition is casual the doctrine is evidently not applicable since the fulfillment of the event which

constitutes the condition is independent of the will of the heir, devisee or legatee.

Navarro notes: since the performance does not depend on the will of the heir, legatee or devisee there must always be fulfillment as a fact or actual compliance

o if the condition is potestative or mixed the doctrine is applicable it may happen that the heir, devisee or

legatee is willing to obey the wishes of the testator, doing all that is in his power towards the realization of the condition, which however is not fulfilled for the reasons not imputable to the fault or neglect of such heir, devisee or legatee.

In such case, the condition should be considered as fulfilled

o If the condition is mixed Since the will of a 3rd party intervenes,

a distinction should be made If the heir, legatee or devisee has

done everything within his power towards the fulfillment of the condition, but this is not fulfilled because of the failure of the 3rd party to comply with what is expected of him

The condition is deemed fulfilled, if such 3rd party has an interest in the fulfillment of non-fulfillment of the condition

Otherwise, the condition cannot be considered as fulfilled, and the institution is annulled

Art. 884. Conditions imposed by the testator upon the heirs

shall be governed by the rules established for conditional obligations in all matters not provided for by this Section.

Art. 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid.

In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir.

Testamentary Dispositions With a Term.

Testamentary dispositions with a term or period o are those demandability or extinguishment are

subject to the expiration of a term or period term or period

o an interval of time, which, exerting an influence upon a testamentary disposition as a consequence of a juridical act, either suspends its demandability or produces its extinguishment.

A term or period may be either suspensive (ex die) or resolutory (in diem).

suspensive o when the rights of the instituted heir, devisee or

legatee to the inheritance, devise or legacy are suspended until the arrival of the date or time designated by the testator;

resolutory o when such rights are immediately demandable,

although they are extinguished upon the arrival of the date or time designated by the testator.

Rule if term is suspensive

the term shall suspend the effects of the institution or of the devise or legacy

the heir, devisee or legatee can demand for the delivery of the inheritance, devise or legacy only upon the expiration of the term or period

right of the heir, devisee or legatee is acquired at the time of the death of the testator

but the demandability of the right itself is suspended until the arrival of the date or time designated by the testator

ex. if a parcel of land is devised to A, but it is stated in the will that the said land shall be delivered to him only after the expiration of a term or period of five years to be counted from the time of the death of the testator, there is no question that A shall acquire a right to the land immediately upon the death of the testator; however, he can demand for its delivery only upon the expiration of the designated term or period.

Pending the arrival of the date or time designated by the testator, the inheritance, devise or legacy shall be given to the legal or intestate heirs of the said testator

o in conformity with the rule stated in the first sentence of the second paragraph of Art. 885

o but these legal heirs shall not enter into the possession of the property without giving sufficient security, with the intervention of the instituted heir or of the devisee or legatee.

provision directly conflicts with the provision of Art. 880o 880 limited to suspensive conditions o suspensive period or term governed by 885

o one instance where it is possible to apply the provision of Art. 880

If the legal heirs cannot file the required bond or security

then the inheritance or property shall have to be placed under administration.

Transmissibility of rights.

If the instituted heir or the devisee or legatee should die before the expiration of the suspensive term or period

o his right to the inheritance, devise or legacy shall be transmitted to his own heirs.

principle is now enshrined in Art. 878 in order that this rule shall be applicable, the heir, devisee

or legatee should have died after the death of the testator, but before the expiration of the term or period.

rule in conformity with the principle that if the institution of heir or the devise or legacy is with a suspensive term, what is suspended by the term or period is not the acquisition of the right to the inheritance, devise or legacy, but merely the demandability of the right itself.

Rule if term is resolutory

the heir, devisee or legatee can demand immediately for the delivery of the inheritance, devise or legacy

but after the expiration of the designated term or period, his rights thereto are terminated

o the inheritance, devise or legacy shall pass to the legal heirs of the testator

ex. if a parcel of land is devised to X, but it is stated in the will that he shall enjoy the land only for a period of five years after the death of the testator, the devise is subject to a resolutory term.

Upon the expiration of the term of five years after the death of the testator, the property shall pass to the legal heirs of the said testator in accordance with the rules of intestate succession.

Navarro notes: Reason for difference in suspensive and resolutory term in

posting bondo Because in institution ex-die(suspensive term), the

legal heirs, who are called to the property until the day arrives, are not merely administrators who must account; but usufructuaries who have the right to enjoy the property

o If it involves suspensive term, a bond is necessary because the legal heir may alienate the property, causing injury to the instituted heir

o If it is resolutory condition, there is no need for the legal heir to post bond, because after the resolutory condition is fulfilled or has occurred, ownership is consolidated on the legal heirs. So there is no need for protection

Ex die(suspensive term)o When the institution is from a certain dayo The testator may designate a person, who will enjoy

the property, until the day comes when the instituted heir shall take it

In diem (resolutory term)o When the institution is to a day certaino The testator may appoint another to succeed the

instituted heir

Hence 885 should be considered merely suppletory, apply it only when the testator has provided otherwise