XVI.

INSTITUTION OF HEIRS
A. In General
Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to
succeed him in his property and transmissible rights and obligations. (n)
The will of the testator is the supreme law which succession is governed, thus, the beneficiaries under the will must be designated
with clearness so that there can be no doubt as to who are intended by the testator.
Since the institution of heirs and the designation of legatees and devisees spring exclusively from the will of the testator, only the
portion of the inheritance that is subject to the disposal of the testator would be affected by such institution or designation. It cannot
affect the portion known as the legitime.
Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions
which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a)
T: The matters mentioned in this article are testamentary in nature; they constitute expressions of the will or disposition of the
testator. Hence, pursuant to Art. 784, it cannot be delegated.
B: The ff. constitute the essence of will making or the exercise of the disposing power, and thus, non-delegable:
1.

the designation of heirs, devisees, legatees;

2.

the duration or efficacy of such designation including such things as conditions, terms, substitutions

3.

the determination of the portions they are to recieve

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine
whether or not it is to be operative. (n)
Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not
comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be
incapacitated to succeed.
The heir may be instituted to succeed to the whole or to an aliquot part of the inheritance. The existence of the institution does not
depend upon the designation or name which the testator gives to his testamentary disposition.
In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the
estate shall pass to the legal heirs. (764)
Art. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person
having capacity to succeed.
The article pertains to the principle of freedom of distribution by will. The extent of his freedom of disposition depends upon the
existence, knid, and number of compulsory heirs. When there are CH the law limits this freedom to such extent that legitime is not
impaired. Besides the civil law, special laws also restrict this freedom such as the Public Land Act which vests upon the heirs of the
applicant or grantee the ownership of land in such case that the latter dies. Thus, he does not have free disposal of the subject land.
The body of the deceased testator will not pass under his will or become part of the estate because it is not a property. But the
testator may be allowed to such extent for scientific or educational purposes.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs. (763a)
Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same
names, he shall indicate some circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be
no doubt as to who has been instituted, the institution shall be valid. (772)

Art. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in
any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even
with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)
Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes
and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the
oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the
application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into
consideration the circumstances under which it was made, excluding such oral declarations. (n)
T: The first part of this article pertains to patent or extrinsic ambiguity which appears upon the face of the instrument such as when
the testator gives a devise or legacy to SOME of the six children of his cousin Juan
The second part pertains to latent or intrinsic ambiguity which cannot be seen from a mere perusal or reading of the will but appears
only upon consideration of extrinsic circumstances, such as giving legacy to my cousin Pedro, when I fact he has two cousins
named Pedro. Thus. It occurs when:
1.

two or more persons or things answer the name or description;

2.

misdescription of the beneficiary or the gift

Extrinsic evidence is admissible to show the situation of the testator and all the relevant facts and circumstances surrounding him at
the time of making the will, for the purpose of explaining or resolving patent ambiguity.
B: method of resolving ambiguity, whether latent or patent is any evidence admissible and relevant excluding the oral declarations of
testator as to his intention.
Ratio for the exclusion: B: can a dead man refute a tale?
T: the testator whose lips have been sealed by death can no longer deny or affirm the truth of what witnesses may say he declared,
would create confusion and give rise to false claims.
Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity
becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)
Art. 786. 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 are to be given or applied. (671a)
T: the third person here does not make any disposition, but simply carries out details in the execution of the testamentary disposition
made by the testator himself in the will.
B: for this article to take effect the testator must determine the ff:
1.

the property or amount of money given and;

2.

the class or cause to be benefited

and the ff. may be delegated:

1.

designation of persons, institutions, or establishments within the class or cause;

2.

the manner of distribution.

Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)

Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the
inheritance shall be distributed equally unless a different intention appears. (770a)
Art. 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my
heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it
clearly appears that the intention of the testator was otherwise. (769a)
Art. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted
simultaneously and not successively. (771)
Art. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears
from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a)
Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal
succession takes place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do
not cover the whole inheritance. (n)
Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the
whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their
aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased
proportionally. (n)
Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the
whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n)
Art. 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)
B. Kinds of Institution
Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)
Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)
Viuda de Kilayko vs. Tengco
These consolidated cases seek to annul the orders 1 dated September 20, 1978, January 7, 1977 and January 31, 1977 of the
then Court of First Instance of Negros Occidental, Branch IV, respectively, cancelling the notice of lis pendens filed by Celsa L. Vda.
de Kilayko, et al. with the Register of Deeds of Negros Occidental, denying the motion for reconsideration of the order dated
September 20, 1976 filed by Celsa L. Vda. de Kilay ko, et al., and holding in abeyance the resolution of defendants' motion to
dismiss.
On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said "testamento" in the possession and custody of her
niece, Eustaquia Lizares. 3 On February 6, 1968, Eustaquia filed a petition for the settlement of the testate estate of Maria Lizares
y Alunan, before the Court of First Instance of Negros Occidental, Branch IV, docketed as Special Proceedings No. 8452. 4
On July 10, 1968, Eustaquia filed a project of partition 6 which was granted by the probate court in an order dated January 8, 1971.
Simultaneously, said court declared the heirs, devisees, legatees and usufructuaries mentioned in the project of partition as the only
heirs, devisees, legatees and usufructuaries of the estate; adjudicated to them the properties respectively assigned to each and
every one of them, and ordered the Register of Deeds of Negros Occidental and Bacolod City to effect the corresponding transfer of
the real properties to said heirs as well as the transfer of shares, stocks, and dividends in different corporations, companies and
partnerships in the name of Maria Lizares to the heirs and legatees, and the closure of the testate proceedings of Maria Lizares. 7
A year later or on November 23, 1973, Eustaquia Lizares died single without any descendant.
Amelo Lizares were appointed joint administrators of Eustaquia's intestate estate.

11 In due time, Rodolfo Lizares and

On the strength of the testamentary provisions contained in paragraphs 10 and 11 of the will of Maria Lizares, which were allegedly
in the nature of a simple substitution, Celsa Vda. de Kilayko, Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto
(hereinafter collectively referred to as Celsa L. Vda. de Kilayko, et al.) filed a motion in Special Proceedings No. 8452 to reopen
once again the testate estate proceedings of Maria Lizares. They prayed among others that a substitute administrator be appointed;
that the order dated January 8, 1971 be reconsidered and amended by declaring them as heirs to 1/3 of 1/14 of Hda. Minuluan and
to 1/6 of Hda. Matab-ang, both of which form an aggregate area of 33 hectares; that the Register of Deeds of Negros Occidental,

after such amendment, be ordered to register at the back of their respective certificates of title, the order of probate and a
"declaration" that movants are the heirs of said properties, and correspondingly issue new certificates of title in their names. 12
Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely: Socorro L. Vda. de Escario, Rodolfo Lizares, Mario
Lizares, Lucrecia Gustilo, and Aurora Lizares Wagner opposed the aforesaid motion. They alleged that the court had no more
jurisdiction to reopen the testate estate proceedings of Maria Lizares as the order of closure had long become final and that the
testamentary provisions sought to be enforced are null and void. 13
On April 13, 1977, the joint administrators filed before this Court a petition for certiorari, prohibition and/or mandamus with prayer for
a writ of preliminary injunction. It was docketed as G.R. No. L-45965. Petitioners contend that the lower court had no jurisdiction
over Civil Case No. 11639 as it involves the interpretation of the will of Maria Lizares, its implementation and/or the adjudication of
her properties. They assert that the matter had been settled in Special Proceedings No. 8452 which had become final and
unappealable long before the complaint in Civil Case No. 11639 was filed, and therefore, the cause of action in the latter case was
barred by the principle of res judicata. They aver that the claim of Celsa, Encarnacion and Remedios, sisters of Maria Lizares, over
the properties left by their niece Eustaquia and which the latter had inherited by will from Maria Lizares, was groundless because
paragraphs 10 and 11 of Maria's will on which Celsa L. Vda. de Kilayko, et al. base their claim, conceived of a fideicommissary
substitution of heirs. Petitioners contend that said provisions of the will are not valid because under Article 863 of the Civil Code,
they constitute an invalid fideicommissary substitution of heirs.
The petition in G.R. No. L-45965 is impressed with merit.
In testate succession, there can be no valid partition among the heirs until after the will has been probated. 30 The law enjoins the
probate of a will and the public requires it, because unless a will is probated and notice thereof given to the whole world, the right of
a person to dispose of his property by will may be rendered nugatory. 31 The authentication of a will decides no other question
than such as touch upon the capacity of the testator and the compliance with those requirements or solemnities which the law
prescribes for the validity of a will. 32
The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to
which each distributee is entitled . . . 37 A project of partition is merely a proposal for the distribution of the hereditary estate which
the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto.
38
In the instant case, the records will show that in the settlement of the testate estate of Maria Lizares, the executrix, Eustaquia
Lizares submitted on January 8, 1971, a project of partition in which the parcels of land, subject matters of the complaint for
reconveyance, were included as property of the estate and assigned exclusively to Eustaquia as a devisee of Maria Lizares. In
accordance with said project of partition which was approved by the probate court, Encarnacion Lizares Vda. de Panlilio, Remedios
Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes Mendoza and Eustaquia Lizares executed an Agreement of
Partition and Subdivision on November 28, 1972, whereby they agreed to terminate their co-ownership over Lots Nos. 550, 514,
553, 1287-C of SWO-7446 and 552 covered by Transfer Certificates of Title Nos. T-65004, T-65005, T-65006, T-65007 and T-65008.
These facts taken altogether show that the Lizares sisters recognized the decree of partition sanctioned by the probate court and in
fact reaped the fruits thereof.
Hence, they are now precluded from attacking the validity of the partition or any part of it in the guise of a complaint for
reconveyance. A party cannot, in law and in good conscience be allowed to reap the fruits of a partition, agreement or judgment and
repudiate what does not suit him. 39 Thus, where a piece of land has been included in a partition and there is no allegation that
the inclusion was effected through improper means or without petitioner's knowledge, the partition barred any further litigation on
said title and operated to bring the property under the control and jurisdiction of the court for its proper disposition according to the
tenor of the partition. 40 The question of private respondents' title over the lots in question has been concluded by the partition
and became a closed matter.
A final decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees. If the
decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect is like any other
judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the court has validly issued a decree of distribution
and the same has become final, the validity or invalidity of the project of partition becomes irrelevant. 41
It is a fundamental concept in the origin of every jural system, a principle of public policy, that at the risk of occasional errors,
judgments of courts should become final at some definite time fixed by law, interest rei publicae ut finis sit litum. "The very object of
which the courts were constituted was to put an end to controversies." 42 The only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is the opening of the same by
proper motion within the reglementary period, instead of an independent action, the effect of which if successful, would be for
another court or judge to throw out a decision or order already final and executed and reshuffle properties long ago distributed and
disposed of. 43
The fundamental principle upon which the doctrine of res judicata rests is that parties ought not to be permitted to litigate the same
issue more than once, that, when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an
opportunity for such trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the
parties and those in privity with then in law or estate. 44
Granting that res judicata has not barred the institution of Civil Case No. 11639, the contention of Celsa L. Vda. de Kilay ko et al.
that they are conditional substitute heirs of Eustaquia in the testate estate of Maria Lizares
46 is not meritorious. While the
allegation of the joint administrators that paragraphs 10 and 11 of Maria Lizares' last will and testament conceives of a
fideicommissary substitution under Article 863 of the Civil Code is also baseless as said paragraphs do not impose upon Eustaquia

a clear obligation to preserve the estate in favor of Celsa L. Vda. de Kilay ko, et al., neither may said paragraphs be considered as
providing for a vulgar or simple substitution.
It should be remembered that when a testator merely names an heir and provides that if such heir should die a second heir also
designated shall succeed, there is no fideicommissary substitution. The substitution should then be construed as a vulgar or simple
substitution under Art. 859 of the Civil Code but it shall be effective only if the first heir dies before the testator. 47 In this case, the
instituted heir, Eustaquia, survived the testatrix, Maria Lizares. Hence, there can be no substitution of heirs for, upon Maria Lizares
death, the properties involved unconditionally devolved upon Eustaquia. Under the circumstances, the sisters of Maria Lizares could
only inherit the estate of Eustaquia by operation of the law of intestacy
With respect to the cancellation of the notice of lis pendens on the properties involved, there is no merit in the contention of Celsa L.
Vda. de Kilay ko, et al., that the lower court acted contrary to law and/or gravely abused its discretion in cancelling the notice of lis
pendens. The cancellation of such a precautionary notice, being a mere incident in an action, may be ordered by the court having
jurisdiction over it at any given time. 48 Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens may be cancelled
"after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights
of the party who caused it to be recorded" 49 In this case, the lower court ordered the cancellation of said notice on the principal
reason that the administrators of the properties involved are subject to the supervision of the court and the said properties are under
custodia legis. Therefore, such notice was not necessary to protect the rights of Celsa L. Vda. de Kilay ko, et al. More so in this case
where it turned out that their claim to the properties left by Eustaquia is without any legal basis.
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. (813a)
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. (792a)
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. (793a)
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. If the obligation is divisible, that part thereof which is not affected by the
impossible or unlawful condition shall be valid.
The condition not to do an impossible thing shall be considered as not having been agreed upon. (1116a)
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. (794a)
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. (795a)
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. (796)
Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the
decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the
case falling under No. 4, the expiration of the month allowed for the report.

If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be
considered. (758a)
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. (800a)
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. (801a)
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. (804a)
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. (791a)
Institution with a Term
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. (805)
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. (799a)
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. (801a)
Modal Institutions
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. (797a)
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. (798a)
XVII. 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
originally instituted. (n)
Art. 858. Substitution of heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or

(4) Fideicommissary. (n)

Art. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or
heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise provided. (774)
Art. 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778)
Art. 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of
the heir who dies, renounces, or is incapacitated, unless it clearly appears 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. (779a)
Art. 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless and
testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir
instituted. (780)
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 the death of the testator. (781a)
Art. 864. A fideicommissary substitution can never burden the legitime. (782a)
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.
(783)
Art. 866. 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. (784)
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 obligation 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 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. (785a)
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. (786)
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. (787a)
Palacios vs. Ramirez
The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez among the principal
beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and his
companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the companion Wanda is an Austrian
who lives in Spain. Moreover, the testator provided for substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir. His will
was admitted to probate by the Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate. On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the
deceased is to be divided into two parts. One part shall go to the widow "en pleno dominio" in satisfaction of her legitime; the other
part or "free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free portion is
charged with the widow's usufruct and the remaining two-third (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor of Wanda
de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with respect to
Wanda's usufruct are invalid because of the first heirs (Marcelle and Wanda) survived the testator; (b) that the provisions for
fideicommissary substitutions are also invalid because the first heirs are not related to the second heirs or substitutes within the first
degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property in the Philippines in favor of
Wanda de Wrobleski, who is an alien, violates Section 5, Article XIII of the Philippine Constitution; and that (d) the proposed partition
of the testator's interest in the Santa Cruz (Escolta) Building between the widow Marcelle, and the appellants, violates the testator's
express will to give this property to them. Nonetheless, the lower court approved the project of partition in its order dated May 3,
1967. It is this order which Jorge and Roberto have appealed to this Court.
The widow's legitime.
It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a quo
approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of the estate. The
court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than
what she is given under the will is not entitled to have any additional share in the estate. To give Marcelle more than her legitime will
run counter to the testator's intention for as stated above his dispositions even impaired her legitime and tended to favor Wanda.
The substitutions.
It may be useful to recall that "Substitution is the appointment of another heir so that he may enter into the inheritance in default of
the heir originally instituted." (Art. 857, Civil Code.) And that there are several kinds of substitutions, namely: simple or common,
brief or compendious, reciprocal, and fideicommissary. (Art. 858, Civil Code.) According to Tolentino, "Although the Code
enumerates four classes, there are really only two principal classes of substitutions: the simple and the fideicommissary. The others
are merely variations of these two." (III Civil Code, p. 185 [1973]).
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
"ART. 859.
The testator may designate one or more persons to substitute the heir or heirs instituted in case such
heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance.
"A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise provided."
The fideicommissary substitution is described in the Civil Code as follows:
"ART. 863.
A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with
the obligation to preserve and to transmit to a second heir the whole or part of inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further
that the fiduciary or first heir and the second heir are living at time of the death of the testator."
It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez, the
appellants,
The appellants also question the "sustitucion vulgar y fideicomisaria" in connection with Wanda's usufruct over two-thirds of the
estate in favor of Juan Pablo Jankowski and Horace V. Ramirez.
They allege that the substitution in its vulgar aspect is void because Wanda survived the testator or stated differently because she
did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the following
reasons:
(a)
The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted. Art.
863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one degree from the
heir originally instituted."
"Scaevola, Maura, and Traviesas construe 'degree' as designation, substitution, or transmission. The Supreme Court of
Spain has decidedly adopted this construction. From this point of view, there can be only one transmission or substitution,
and the substitute need not be related to the first heir. Manresa, Morell, and Sanchez Roman, however, construe the word
'degree' as generation, and the present Code has obviously followed this interpretation, by providing that the substitution
shall not go beyond one degree 'from the heir originally instituted.' The Code thus clearly indicates that the second heir
must be related to and be one generation from the first heir.
"From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These are the only
relatives who are one generation or degree from the fiduciary." (Op. cit., pp. 193-194.).

(b)
There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867
of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary substitution when
he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked owners."
(Brief, p. 26).
The usufruct of Wanda.
The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only succession by
operation of law but also testamentary succession. We are of the opinion that the Constitutional provision which enables aliens to
acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless.
Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece
of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to
the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution.
Crisologo vs. Singson
Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo against Manuel Singson in
connection with a residential lot located at Plaridel St., Vigan, Ilocos Sur, with an area of approximately 193 square meters, and the
improvements existing thereon, covered by Tax No. 10765-C. Their complaint alleged that Singson owned one half proindiviso of
said property and that Consolacion Florentino owned the other half by virtue of the provisions of the duly probated last will of Doa
Leona Singson, the original owner, and the project of partition submitted to, and approved by the Court of First Instance of Ilocos
Sur in Special Proceeding No. 453; that plaintiffs had made demands for the partition of said property, but defendant refused to
accede thereto, thus compelling them to bring action.
Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner of one half proindiviso of the
property in question, and that, therefore, she was not entitled to demand partition thereof.
It is admitted that Doa Leona Singson, who died single on January 13, 1948, was the owner of the property in question at the time
of her death. On July 31, 1951 she executed her last will which was admitted to probate in Special Proceeding No. 453 of the lower
court whose decision was affirmed by the Court of Appeals in G. R. No. 3605-R. At the time of the execution of the will her nearest
living relatives were her brothers Evaristo, Manuel and Dionisio Singson, and her nieces Rosario, Emilia and Trinidad, and her
grandniece Consolacion, all surnamed Florentino.
The issue to be decided is whether the testamentary disposition above-quoted provided for what is called sustitucin vulgar or for a
sustitucin fideicomisaria. This issue is, we believe, controlled by the pertinent provisions of the Civil Code in force in the Philippines
prior to the effectivity of the New Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following:
"ART. 774. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs
should die before him, or should not wish or should be unable to accept the inheritance.
"A simple substitution, without a statement of the cases to which it is to apply, shall include the three mentioned in the next
preceding paragraph, unless the testator has otherwise provided."
"ART. 781. Fidei-comissary substitutions by virtue of which the heir is charged to preserve and transmit to a third person the
whole or part of the inheritance shall be valid and effective, provided they do not go beyond the second degree, or that they are
made in favor of persons living at the time of the death of the testator."
"ART. 785. The following shall be inoperative:
1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon the fiduciary the absolute
obligation of delivering the property to a second heir." * * *.
In accordance with the first legal provision quoted above, the testator may not only designate the heirs who will succeed him upon
his death, but also provide for substitutes in the event that said heirs do not accept or are in no position to accept the inheritance or
legacies, or die ahead of him.
The testator may also bequeath his properties to a particular person with the obligation, on the part of the latter, to deliver the same
to another person, totally or partially, upon the occurrence of a particular event.
It is clear that the particular testamentary clause under consideration provides for a substitution of the heir named therein in this
manner: that upon the death of Consolacion Florentino-whether this occurs before or after that of the testatrix-the property
bequeathed to her shall be delivered ("se dar") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and
Dionisio, or their forced heirs, should anyone of them the ahead of Consolacion Florentino. If this clause created what is known as
sustitucin vulgar, the necessary result would be that Consolacion Florentino, upon the death of the testatrix, became the owner of
one undivided half of the property, but if it provided for a sustitucin fideicomisaria, she would have acquired nothing more than
usufructuary rights over the same half. In the former case, she would undoubtedly be entitled to partition, but not in the latter. As
Manresa says, if the fiduciary did not acquire full ownership of the property bequeathed, by will, but mere usufructuary rights thereon
until the time came for him to deliver said property to the fideicomisario, it is obvious that the nude ownership over the property,
upon the death of the testatrix, passed to and was acquired by another person, and that person cannot be other than the
fideicomisarrio. (6 Manreza, p. 145)
It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed upon the first heir to preserve
and transmit to another the whole or part of the estate bequeathed to him, upon his death or upon the happening of a particular

event. For this reason Art. 785 of the old Civil Code provides that a fideicommissary substitution shall have no effect unless it is
made expressly ("de una manera expresa") either by giving it such name, or by imposing upon the first heir the absolute obligation
("obligacin terminante") to deliver the inheritance to a substitute or second heir.
A careful perusal of the testamentary clause under consideration shows that the substitution of heirs provided for therein is not
expressly made of the fideicommissary kind, nor does it contain a clear statement to the effect that appellee, during her lifetime,
shall only enjoy usufructuary rights over the property bequeathed to her, naked ownership thereof being vested in the brothers of the
testatrix. As already stated, it merely provides that upon appellee's death-whether this happens before or after that of the testatrixher share shall belong to the brothers of the testatrix.
In the light of the foregoing, we believe, and so hold, that the last will of the deceased Da. Leona Singson established a mere
sustitucin vulgar, the substitution of Consolacion Florentino by the brothers of the testatrix: to be effective or to take place upon the
death of the former, whether it happens before or after that of the testatrix.
In view of the foregoing, the appealed judgment is affirmed, with costs.
Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.
(n)