Cases in Succession Arts. 855-906

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA

PALACIOS, Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and
ROBERTO RAMIREZ, legatees, oppositors- appellants.
ABAD SANTOS, J.:
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. In
due time she submitted an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila.............................................................
P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal...................

658.34
Cuatrocientos noventa y uno (491) acciones
de la 'Central Azucarera de la Carlota a P17.00

por accion
................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por accion

..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co..............................................................................................
2,350.73
TOTAL..............................................................
P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garan-
tizada con prenda de las acciones de La Carlota ......... P

5,000,00
VALOR LIQUIDO...........................................
P507,976.97
The testamentary dispositions are as follows:
A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez,

ambas menores de edad, residentes en Manila, I.F., calle
'Alright, No. 1818, Malate, hijos de su sobrino D. Jose Ma.
Ramirez, con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con sustitucion vulgar
reciprocal entre ambos.
El precedente legado en nuda propiedad de la participacion

indivisa de la finca Santa Cruz Building, lo ordena el testador a
favor de los legatarios nombrados, en atencion a que dicha
propiedad fue creacion del querido padre del otorgante y por
ser aquellos continuadores del apellido Ramirez,
B.—Y en usufructo a saber: —
a. En cuanto a una tercera parte, a favor de la esposa del

testador, Da. Marcelle Ramirez, domiciliada en IE PECO, calle
del General Gallieni No. 33, Seine Francia, con sustitucion
vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de
Palma de Mallorca, Son Rapina Avenida de los Reyes 13,
b.—Y en cuanto a las dos terceras partes restantes, a favor de
la nombrada Da. Wanda de Nrobleski con sustitucion vulgar v
fideicomisaria a saber:—
En cuanto a la mitad de dichas dos terceras partes, a favor de

D. Juan Pablo Jankowski, de Son Rapina Palma de Mallorca; y
encuanto a la mitad restante, a favor de su sobrino, D. Horace
V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente

ordinadas, las usufiructuarias nombradas conjuntamente con
los nudo propietarios, podran en cualquier memento vender a
tercero los bienes objeto delegado, sin intervencion alguna de
los titulares fideicomisaarios.
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-thirds (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
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 Wrobleski,
who is an alien, violates Section 5, Article III 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 win 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.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of

the estate in full ownership. They admit that the testator's dispositions
impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If
the only survivor is the widow or widower, she or he shall be entitled to
one-half of the hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he could
impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)
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.
2. The substitutions.
It may be useful to recall that "Substitution is the appoint- judgment 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." (111
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, thus: con
sustitucion vulgar a favor de sus respectivos descendientes, y, en su
defecto, con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided.

The appellants question the sustitucion vulgar y fideicomisaria a favor de
Da. Wanda de Wrobleski" in connection with the one-third usufruct over the
estate given to the widow Marcelle However, this question has become
moot because as We have ruled above, the widow is not entitled to any
usufruct.
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 as 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."
What is meant by "one degree" from the first heir is explained by Tolentino
as follows:
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 tranmission 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.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in
favor of Wanda is void because it violates the constitutional prohibition
against the acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private

agricultural land shall be transferred or assigned except to
individuals, corporations, or associations qualified to acquire or
hold lands of the public domain in the Philippines. (Art. XIII.)
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.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is

hereby ordered distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge
Ramirez in naked ownership and the usufruct to Wanda de Wrobleski with
a simple substitution in favor of Juan Pablo Jankowski and Horace V.
Ramirez.
The distribution herein ordered supersedes that of the court a quo. No

special pronouncement as to costs.
SO ORDERED.
Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ.,
concur.
Aquino J., took no part.
FIRST DIVISION
[G.R. No. 113725. June 29, 2000.]
JOHNNY S. RABADILLA, 1, Petitioner, v. COURT OF APPEALS AND

MARIA MARLENA 2 COSCOLUELLA Y BELLEZA
VILLACARLOS, Respondents.
DECISION
PURISIMA, J.:
This is a petition for review of the decision of the Court of Appeals, 3 dated
December 23, 1993, in CA-G.R. No. CV-35555, which set aside the
decision of Branch 52 of the Regional Trial Court in Bacolod City, and
ordered the defendants-appellees (including herein petitioner), as heirs of
Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its
fruits and interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:chanrob1es virtual 1aw library
In a Codicil appended to the Last Will and Testament of testatrix Aleja

Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,855
square meters of that parcel of land surveyed as Lot No. 1392 of the
Bacolod Cadastre. The said Codicil, which was duly probated and admitted
in Special Proceedings No. 4046 before the then Court of First Instance of
Negros Occidental, contained the following
provisions:jgc:chanrobles.com.ph
"FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge
Rabadilla resident of 141 P. Villanueva, Pasay City:chanrob1es virtual 1aw
library
(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002 (10942), which is registered in my name according to
the records of the Register of Deeds of Negros Occidental.
(b) That should Jorge Rabadilla die ahead of me, the aforementioned
property and the rights which I shall set forth hereinbelow, shall be inherited
and acknowledged by the children and spouse of Jorge Rabadilla.
x x x
FOURTH
(a) It is also my command, in this my addition (Codicil), that should I die

and Jorge Rabadilla shall have already received the ownership of the said
Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10942), and also at the time that the lease of Balbinito
G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the
obligation until he dies, every year to give Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza
dies.chanrobles virtua| |aw |ibrary
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392
of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-
4002 (10492), shall have the obligation to still give yearly, the sugar as
specified in the Fourth paragraph of his testament, to Maria Marlina
Coscolluela y Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event
that the one to whom I have left and bequeathed, and his heir shall later
sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE HUNDRED (100)
piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25)
piculs of Domestic, until Maria Marlina shall die, lastly should the buyer,
lessee or the mortgagee of this lot, not have respected my command in this
my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir and the latter’s heirs, and
shall turn it over to my near desendants, (sic) and the latter shall then have
the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria
Marlina shall die. I further command in this my addition (Codicil) that my
heir and his heirs of this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot negotiate with
others than my near descendants and my sister." 4
Pursuant to the same Codicil, Lot No. 1392 was transferred to the
deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498
thereto issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and
children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed
Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos

brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of
the Regional Trial Court in Bacolod City, against the above-mentioned heirs
of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The
Complaint alleged that the defendant-heirs violated the conditions of the
Codicil, in that:chanrob1es virtual 1aw library
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the
Republic Planters Bank in disregard of the testatrix’s specific instruction to
sell, lease, or mortgage only to the near descendants and sister of the
testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one

hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs
domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar
crop years 1985 up to the filing of the complaint as mandated by the
Codicil, despite repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which
provided that in case of the sale, lease, or mortgage of the property, the
buyer, lessee, or mortgagee shall likewise have the obligation to deliver
100 piculs of sugar per crop year to herein private Respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-

heirs to reconvey/return Lot No. 1392 to the surviving heirs of the late Aleja
Belleza, the cancellation of TCT No. 44498 in the name of the deceased,
Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the
names of the surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on

March 28, 1990 the Order of Default was lifted, with respect to defendant
Johnny S. Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:chanrob1es virtual 1aw library
On November 15, 1998, the plaintiff (private respondent) and a certain Alan
Azurin, son-in-law of the herein petitioner who was lessee of the property
and acting as attorney-in-fact of defendant heirs, arrived at an amicable
settlement and entered into a Memorandum of Agreement on the obligation
to deliver one hundred piculs of sugar, to the following
effect:jgc:chanrobles.com.ph
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of
TCT No. 44489 will be delivered not later than January of 1989, more
specifically, to wit:chanrob1es virtual 1aw library
75 piculs of ‘A’ sugar, and 25 piculs of ‘B’ sugar, or then existing in any of
our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December
of each sugar crop year; in Azucar Sugar Central; and, this is considered
compliance of the annuity as mentioned, and in the same manner will
compliance of the annuity be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-
88, will be complied in cash equivalent of the number of piculs as
mentioned therein and which is as herein agreed upon, taking into
consideration the composite price of sugar during each sugar crop year,
which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS
(P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered

cash installment, payable on or before the end of December of every sugar
crop year, to wit:chanrob1es virtual 1aw library
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

(P26,250.00) Pesos, payable on or before December of crop year 1988-
89;

90;

(P26,250.00) Pesos, payable on or before December of crop year 1990-91;
and

92." 5
However, there was no compliance with the aforesaid Memorandum of

Agreement except for a partial delivery of 50.80 piculs of sugar
corresponding to sugar crop year 1988-1989.
On July 22, 1991, the Regional Trial Court came out with a decision,
dismissing the complaint and disposing as follows:jgc:chanrobles.com.ph
"WHEREFORE, in the light of the aforegoing findings, the Court finds that
the action is prematurely filed as no cause of action against the defendants
has as yet arose in favor of plaintiff. While there maybe the non-
performance of the command as mandated exaction from them simply
because they are the children of Jorge Rabadilla, the title holder/owner of
the lot in question, does not warrant the filing of the present complaint. The
remedy at bar must fall. Incidentally, being in the category as creditor of the
left estate, it is opined that plaintiff may initiate the intestate proceedings, if
only to establish the heirs of Jorge Rabadilla and in order to give full
meaning and semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed
is DISMISSED without prejudice.chanrobles.com : virtual law library
SO ORDERED." 6
On appeal by plaintiff, the First Division of the Court of Appeals reversed

the decision of the trial court; ratiocinating and ordering
thus:jgc:chanrobles.com.ph
"Therefore, the evidence on record having established plaintiff-appellant’s

right to receive 100 piculs of sugar annually out of the produce of Lot No.
1392; defendants-appellee’s obligation under Aleja Belleza’s codicil, as
heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellee’s admitted non-compliance with
said obligation since 1985; and, the punitive consequences enjoined by
both the codicil and the Civil Code, of seizure of Lot No. 1392 and its
reversion to the estate of Aleja Belleza in case of such non-compliance,
this Court deems it proper to order the reconveyance of title over Lot No.
1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza.
However, plaintiff-appellant must institute separate proceedings to re-open
Aleja Belleza’s estate, secure the appointment of an administrator, and
distribute Lot No. 1392 to Aleja Belleza’s legal heirs in order to enforce her
right, reserved to her by the codicil, to receive her legacy of 100 piculs of
sugar per year out of the produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.
SO ORDERED." 7
Dissatisfied with the aforesaid disposition by the Court of Appeals,

petitioner found his way to this Court via the present petition, contending
that the Court of Appeals erred in ordering the reversion of Lot 1392 to the
estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the
Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla
is a modal institution within the purview of Article 882 of the New Civil
Code.
The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal
in accordance with Article 882 of the New Civil Code on modal institutions
and in deviating from the sole issue raised which is the absence or
prematurity of the cause of action. Petitioner maintains that Article 882
does not find application as there was no modal institution and the testatrix
intended a mere simple substitution — i.e. the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix’s "near descendants"
should the obligation to deliver the fruits to herein private respondent be not
complied with. And since the testatrix died single and without issue, there
can be no valid substitution and such testamentary provision cannot be
given any effect.
The petitioner theorizes further that there can be no valid substitution for
the reason that the substituted heirs are not definite, as the substituted
heirs are merely referred to as "near descendants" without a definite
identity or reference as to who are the "near descendants" and therefore,
under Articles 843 8 and 845 9 of the New Civil Code, the substitution
should be deemed as not written.
The contentions of petitioner are untenable. Contrary to his supposition that

the Court of Appeals deviated from the issue posed before it, which was
the propriety of the dismissal of the complaint on the ground of prematurity
of cause of action, there was no such deviation. The Court of Appeals
found that the private respondent had a cause of action against the
petitioner. The disquisition made on modal institution was, precisely, to
stress that the private respondent had a legally demandable right against
the petitioner pursuant to subject Codicil; on which issue the Court of
Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent 10 and compulsory
heirs are called to succeed by operation of law. The legitimate children and
descendants, in relation to their legitimate parents, and the widow or
widower, are compulsory heirs. 11 Thus, the petitioner, his mother and
sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla,
succeeded the latter by operation of law, without need of further
proceedings, and the successional rights were transmitted to them from the
moment of death of the decedent, Dr. Jorge Rabadilla.chanrobles.com.ph :
red
Under Article 776 of the New Civil Code, inheritance includes all the
property, rights and obligations of a person, not extinguished by his death.
Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject
Codicil were transmitted to his forced heirs, at the time of his death. And
since obligations not extinguished by death also form part of the estate of
the decedent; corollarily, the obligations imposed by the Codicil on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory
heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge
Rabadilla, subject to the condition that the usufruct thereof would be
delivered to the herein private respondent every year. Upon the death of
Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title
over said property, and they also assumed his (decedent’s) obligation to
deliver the fruits of the lot involved to herein private Respondent. Such
obligation of the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or performance of
which is now being demanded by the latter through the institution of the
case at bar. Therefore, private respondent has a cause of action against
petitioner and the trial court erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal
institutions is not applicable because what the testatrix intended was a
substitution — Dr. Jorge Rabadilla was to be substituted by the testatrix’s
near descendants should there be non-compliance with the obligation to
deliver the piculs of sugar to private Respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to

take the place of the heir or heirs first instituted. Under substitutions in
general, the testator may either (1) provide for the designation of another
heir to whom the property shall pass in case the original heir should die
before him/her, renounce the inheritance or be incapacitated to inherit, as
in a simple substitution, 12 or (2) leave his/her property to one person with
the express charge that it be transmitted subsequently to another or others,
as in a fideicommissary substitution. 13 The Codicil sued upon
contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default of

the first heir by reason of incapacity, predecease or renunciation. 14 In the
case under consideration, the provisions of subject Codicil do not provide
that should Dr. Jorge Rabadilla default due to predecease, incapacity or
renunciation, the testatrix’s near descendants would substitute him. What
the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill
the conditions imposed in the Codicil, the property referred to shall be
seized and turned over to the testatrix’s near descendants.
Neither is there a fideicommissary substitution here and on this point,

petitioner is correct. In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same later to the
second heir. 15 In the case under consideration, the instituted heir is in fact
allowed under the Codicil to alienate the property provided the negotiation
is with the near descendants or the sister of the testatrix. Thus, a very
important element of a fideicommissary substitution is lacking; the
obligation clearly imposing upon the first heir the preservation of the
property and its transmission to the second heir. "Without this obligation to
preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution." 16 Also, the near descendants’ right to
inherit from the testatrix is not definite. The property will only pass to them
should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver
part of the usufruct to private Respondent.
Another important element of a fideicommissary substitution is also missing

here. Under Article 863, the second heir or the fideicommissary to whom
the property is transmitted must not be beyond one degree from the first
heir or the fiduciary. A fideicommissary substitution is therefore, void if the
first heir is not related by first degree to the-second heir. 17 In the case
under scrutiny, the near descendants are not at all related to the instituted
heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and
therefore, Article 882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:chanrob1es virtual 1aw
library
ARTICLE 882. The statement of the object of the institution or the

application of the property left by the testator, or the charge imposed on
him, shall not be considered as a condition unless it appears that such was
his intention.
That which has been left in this manner may be claimed at once provided
that the instituted heir or his heirs give security for compliance with the
wishes of the testator and for the return of anything he or they may receive,
together with its fruits and interests, if he or they should disregard this
obligation.
ARTICLE 883. When without the fault of the heir, an institution referred to
in the preceding article cannot take effect in the exact manner stated by the
testator, it shall be complied with in a manner most analogous to and in
conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is

known in the law of succession as an institucion sub modo or a modal
institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the testator,
or (3) the charge imposed by the testator upon the heir. 18 A "mode"
imposes an obligation upon the heir or legatee but it does not affect the
efficacy of his rights to the succession. 19 On the other hand, in a
conditional testamentary disposition, the condition must happen or be
fulfilled in order for the heir to be entitled to succeed the testator. The
condition suspends but does not obligate; and the mode obligates but does
not suspend. 20 To some extent, it is similar to a resolutory condition. 21
From the provisions of the Codicil litigated upon, it can be gleaned

unerringly that the testatrix intended that the subject property be inherited
by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix
imposed an obligation on the said instituted heir and his successors-in-
interest to deliver one hundred piculs of sugar to the herein private
respondent, Marlena Coscolluela Belleza, during the lifetime of the latter.
However, the testatrix did not make Dr. Jorge Rabadilla’s inheritance and
the effectivity of his institution as a devisee, dependent on the performance
of the said obligation. It is clear, though, that should the obligation be not
complied with, the property shall be turned over to the testatrix’s near
descendants. The manner of institution of Dr. Jorge Rabadilla under
subject Codicil is evidently modal in nature because it imposes a charge
upon the instituted heir without, however, affecting the efficacy of such
institution.
Then too, since testamentary dispositions are generally acts of liberality, an

obligation imposed upon the heir should not be considered a condition
unless it clearly appears from the Will itself that such was the intention of
the testator. In case of doubt, the institution should be considered as modal
and not conditional. 22
Neither is there tenability in the other contention of petitioner that the

private respondent has only a right of usufruct but not the right to seize the
property itself from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty arises on the face of the

Will, as to the application of any of its provisions, the testator’s intention is
to be ascertained from the words of the Will, taking into consideration the
circumstances under which it was made. 23 Such construction as will
sustain and uphold the Will in all its parts must be adopted. 24
Subject Codicil provides that the instituted heir is under obligation to deliver
One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella.
Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they sell, lease,
mortgage or otherwise negotiate the property involved. The Codicil further
provides that in the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the property and turn it
over to the testatrix’s near descendants. The non-performance of the said
obligation is thus with the sanction of seizure of the property and reversion
thereof to the testatrix’s near descendants. Since the said obligation is
clearly imposed by the testatrix, not only on the instituted heir but also on
his successors-in-interest, the sanction imposed by the testatrix in case of
non-fulfillment of said obligation should equally apply to the instituted heir
and his successors-in-interest.
Similarly unsustainable is petitioner’s submission that by virtue of the

amicable settlement, the said obligation imposed by the Codicil has been
assumed by the lessee, and whatever obligation petitioner had become the
obligation of the lessee; that petitioner is deemed to have made a
substantial and constructive compliance of his obligation through the
consummated settlement between the lessee and the private respondent,
and having consummated a settlement with the petitioner, the recourse of
the private respondent is the fulfillment of the obligation under the amicable
settlement and not the seizure of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act
by which a person disposes of his property, to take effect after his death.
25 Since the Will expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the testator must be
strictly followed. Thus, a Will cannot be the subject of a compromise
agreement which would thereby defeat the very purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and the decision of the

Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555
AFFIRMED. No Pronouncement as to costs.chanrobles virtuallawlibrary
SO ORDERED.
Melo, J., I concur as well in the separate opinion of Justice Vitug.
Gonzaga-Reyes, J., took no part.
Separate Opinions
VITUG, J., concurring:chanrob1es virtual 1aw library
By virtue of a codicil appended to her will, Aleja Belleza devised a 511,856-

square meter parcel of land in Bacolod City, denominated Lot No. 1392 of
the Bacolod Cadastral Survey, to Jorge Ravadilla (predecessor-in-interest
of petitioner), 1 carrying with it an obligation to deliver to private
respondent, Maria Marlena Coscolluela y Belleza, one hundred piculs of
sugar per crop year during her lifetime. The portions of the codicil, pertinent
to the instant controversy, read:jgc:chanrobles.com.ph
"FIRST
"I give, leave and bequeath the following property owned by me to Dr.
Jorge Rabadilla, resident of 141 P. Villanueva, Pasay
City:jgc:chanrobles.com.ph
"(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate
of Title No. RT-4002(10942), which is registered in my name according to
the records of the Register of Deeds of Negros Occidental.
b) That should Jorge Rabadilla die ahead of me, the aforementioned

property and the rights which I shall set forth hereinbelow, shall be inherited
and acknowledged by the children and spouse of Jorge Rabadilla.
x x x
FOURTH
"(a) It is also my command, in this my addition (codicil), that should I die

and Jorge Rabadilla shall have already received the ownership of the said
Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of
Title No. RT-4002(10942), and also at the time that the lease of Balbinito
Guanzon of the said lot shall expire, Jorge Rabadilla shall have the
obligation until he dies, every year to give to Maria Marlina Coscolluela y
Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza
dies.
"FIFTH
"(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No.
1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No.
RT-4002 (10942), shall have the obligation to still give yearly, the sugar as
specified in the Fourth paragraph of this testament, to Maria Marlina
Coscolluela y Belleza on the month of December of each year.
"SIXTH
"I command, in this my addition (Codicil) that the Lot No. 1392, in the event
that the one to whom I have left and bequeathed, and his heir shall later
sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have
also the obligation to respect and deliver yearly ONE HUNDRED (100)
piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25)
piculs of Domestic, until Maria Marlina shall die, lastly should the buyer,
lessee, or the mortgagee of this lot, not have respected my command in
this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall
immediately seize this Lot No. 1392 from my heir and the latter’s heirs, and
shall turn it over to my near descendants, 2 and the latter shall then have
the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria
Marlina shall die. I further command in this my addition (Codicil) that my
heir and his heirs of this Lot No. 1392, that they will obey and follow that
should they decide to sell, lease, mortgage, they cannot negotiate with
others than my near descendants and my sister." 3
Pursuant to the above provisions of the codicil, ownership of Lot No. 1392
was transferred to Jorge Rabadilla and Transfer Certificate of Title No. T-
44498 was issued in his name.chanrobles.com : virtual law library
Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, and
their children Johnny, Aurora, Ofelia and Zenaida.
On 21 August 1989, on account of the failure of the heirs of Jorge Rabadilla
to comply with the obligation under the codicil, private respondent filed an
action, docketed Civil Case No. 5588, against the Rabadilla heirs before
the Regional Trial Court, Branch 52, of Bacolod City for the reconveyance
of Lot 1392 to the heirs of Aleja Belleza and the cancellation of Transfer
Certificate of Title No. 44498 covering the property in the name of Jorge
Rabadilla.
The trial court dismissed the complaint "without prejudice." 4 On appeal

taken by private respondent to the Court of Appeals, the appellate court set
aside the appealed decision and held:jgc:chanrobles.com.ph
"Therefore, the evidence on record having established plaintiff-appellant’s

right to receive 100 piculs of sugar annually out of the produce of Lot No.
1392; defendants-appellees’ obligation under Aleja Belleza’s codicil, as
heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to
plaintiff-appellant; defendants-appellees’ admitted non-compliance with
said obligation since 1985; and, the punitive consequences enjoined by
both the codicil and the Civil Code, of seizure of Lot No. 1392 and its
reversion to the estate of Aleja Belleza in case of such non-compliance,
this Court deems it proper to order the reconveyance of title over Lot No.
1392 from the estate of Jorge Rabadilla to the estate of Aleja Belleza.
However, plaintiff-appellant must institute separate proceedings to re-open
Aleja Belleza’s estate, secure the appointment of an administrator, and
distribute Lot No. 1392 to Aleja Belleza’s legal heirs in order to enforce her
right, reserved to her by the codicil, to receive her legacy of 100 piculs of
sugar per year out of the produce of Lot No. 1392 until she dies.
"Accordingly, the decision appealed from is SET ASIDE and another one
entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to
reconvey title over Lot No. 1392, together with its fruits and interests, to the
estate of Aleja Belleza.
SO ORDERED." 5
Petitioner, in the instant petition for review, submits that the appellate court
has erred in: (1) ordering the reversion of Lot 1392 to the estate of Aleja
Belleza on the basis of paragraph six of the codicil, and (2) in ruling that the
testamentary institution of Dr. Jorge Rabadilla is a modal institution within
the purview of Article 882 of the Civil Code. Additionally, he avers that
respondent court has improvidently deviated from the sole issue raised
which is the prematurity of the action before the court a quo. Upon the
other hand, respondent would have this Court sustain the assailed decision
of the Court of Appeals contending that the appellate court is completely
justified in delving into the nature of the institution in the codicil, the same
having a direct significance on the issue of whether or not the complaint
before the trial court has been prematurely filed. Private respondent adds
that the institution in question is modal within the context of Article 882 of
the Civil Code which gives her the right to seize the subject property.
I agree with my colleagues that "substitution" is not here apropos.
Substitution is the appointment of another heir so that he may enter into the
inheritance in default of the heir originally instituted. 6 Substitution is simple
when the testator designates one or more persons to substitute the heir or
heirs instituted in case the latter should die before him, or should not wish,
or should be incapacitated to accept the inheritance, and a substitution
without a statement of the cases to which it refers shall comprise all said
three cases. 7 There is no simple substitution that takes place where the
heir originally instituted is able to succeed. 8 Fideicommissary substitution,
on the other hand, occurs 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. 9 Every fideicommissary substitution
should be expressly made in order that it may be valid. 10 The term
"fideicommissary substitution" need not, however, be used in the will; It is
enough that there is a clear and unequivocal statement that one shall enjoy
usufructuary or other rights, short of naked ownership or title, over certain
property of the testator with the obligation to preserve the property and to
transmit it to a second heir. 11 It is essential for the validity of a
fideicommissary substitution that both heirs are living and qualified to
succeed at the time of death by the testator and that the substitute does not
go beyond one degree from the heir originally instituted. The term "one
degree" has been the subject of varied interpretation. One view is to the
effect that the term means one transfer, citing the Supreme Tribunal of
Spain and as advocated by eminent civilists as Justices J.B.L. Reyes, R.
Puno, E. Caguioa, and D. Jurado. In Ramirez v. Ramirez, 12 decided on 15
February 1982, the Court, however, adopted the literal view that "one
decree" means relationship or generation as so advanced by equally
eminent writers Dr. A. Padilla, Justice E. Paras and Dr. A. Tolentino. In the
subsequent case of the Testate Estate case of Fr. Aranas, 13 however, the
Court upheld the usufructuary right of the Roman Catholic Church under a
legacy that now renders doubtful the continued validity of the Ramirez
doctrine.chanrobles.com.ph : red
The institution of Jorge Rabadilla in the Belleza codicil partook the nature of
an institution sub modo, rather than one of substitution, governed by the
provisions of Article 882 of the Civil Code. This law
provides:jgc:chanrobles.com.ph
"ARTICLE 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." (Emphasis supplied)
A mode is distinguished from a condition contemplated in the rules on
succession in that the latter dictates the efficacy, either in a suspensive or
resolutory manner, of a testamentary disposition while the former obligates
the instituted heir to comply with the mandate made by the testator but
does not prevent the heir from at once claiming the inheritance provided he
gives security to ensure compliance with the will of the testator and the
return of the thing received together with its fruits and interests, "should
(the heir) disregard this obligation." The obligation imposed upon the heir or
legatee is deemed not to be a condition for his entry forthwith into the
inheritance unless a contrary intention of the testator is evident. In case of
doubt, the institution is considered modal, rather than conditional. Much of
the variance in the legal effects of the two classes, 14 however, is now
practically theoretical and merely conceptual. Under the Old Civil Code 15
an institucion sub modo could be said to be more akin to an institution sub
demonstratione, or an expression of a wish or suggestion of the testator
that did not have any real obligatory force, that matter being left instead to
the discretion of the heir, i.e., whether to abide by it or not. The amendatory
provisions of the New Civil Code now hardly differentiates between the
principal effect of the non-compliance with the mode and that of the
occurence of a resolutory condition expressed in the will. In both instances,
the property must be returned to the estate of the decedent to then pass on
under the rules of intestacy.
ACCORDINGLY, I also vote for the dismissal of the instant petition.
Panganiban, J., concurs.
EN BANC
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO

LAPUZ, petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO
SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.
REYES J.B.L., J.:
Petition, filed after the effectivity of Republic Act 5440, for review
by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic
Relations Court of Manila, in its Civil Case No. 20387, dismissing said case
for legal separation on the ground that the death of the therein plaintiff,
Carmen O. Lapuz Sy, which occurred during the pendency of the case,
abated the cause of action as well as the action itself. The dismissal order
was issued over the objection of Macario Lapuz, the heir of the deceased
plaintiff (and petitioner herein) who sought to substitute the deceased and
to have the case prosecuted to final
judgment.chanroblesvirtualawlibrarychanrobles virtual law library
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal

separation against Eufemio S. Eufemio, alleging, in the main, that they
were married civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as husband and wife
continuously until 1943 when her husband abandoned her; that they had no
child; that they acquired properties during their marriage; and that she
discovered her husband cohabiting with a Chinese woman named Go Hiok
at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the
issuance of a decree of legal separation, which, among others, would order
that the defendant Eufemio S. Eufemio should be deprived of his share of
the conjugal partnership profits.chanroblesvirtualawlibrarychanrobles virtual
law library
In his second amended answer to the petition, herein respondent Eufemio

S. Eufemio alleged affirmative and special defenses, and, along with
several other claims involving money and other properties, counter-claimed
for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz
Sy, on the ground of his prior and subsisting marriage, celebrated
according to Chinese law and customs, with one Go Hiok, alias Ngo
Hiok.chanroblesvirtualawlibrarychanrobles virtual law library
Issues having been joined, trial proceeded and the parties adduced their
respective evidence. But before the trial could be completed (the
respondent was already scheduled to present surrebuttal evidence on 9
and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular
accident on 31 May 1969. Counsel for petitioner duly notified the court of
her death.chanroblesvirtualawlibrarychanrobles virtual law library
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for

legal separation" 1on two (2) grounds, namely: that the petition for legal
separation was filed beyond the one-year period provided for in Article 102
of the Civil Code; and that the death of Carmen abated the action for legal
separation.chanroblesvirtualawlibrarychanrobles virtual law library
On 26 June 1969, counsel for deceased petitioner moved to substitute the

deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio
opposed the motion.chanroblesvirtualawlibrarychanrobles virtual law library
On 29 July 1969, the court issued the order under review, dismissing the
case. 2In the body of the order, the court stated that the motion to dismiss
and the motion for substitution had to be resolved on the question of
whether or not the plaintiff's cause of action has survived, which the court
resolved in the negative. Petitioner's moved to reconsider but the motion
was denied on 15 September 1969.chanroblesvirtualawlibrarychanrobles
virtual law library
After first securing an extension of time to file a petition for review of the
order of dismissal issued by the juvenile and domestic relations court, the
petitioner filed the present petition on 14 October 1969. The same was
given due course and answer thereto was filed by respondent, who prayed
for the affirmance of the said order. 3chanrobles virtual law library
Although the defendant below, the herein respondent Eufemio S. Eufemio,

filed counterclaims, he did not pursue them after the court below dismissed
the case. He acquiesced in the dismissal of said counterclaims by praying
for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz
marriage to be null and void ab initio.chanroblesvirtualawlibrarychanrobles
virtual law library
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute -

for the lower court did not act on the motion for substitution) stated the
principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into

one for a declaration of nullity of a marriage, does the death of a party
abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a

legal separation suit to one for declaration of nullity of a marriage, which is
without basis, for even petitioner asserted that "the respondent has
acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page
22). Not only this. The petition for legal separation and the counterclaim to
declare the nullity of the self same marriage can stand independent and
separate adjudication. They are not inseparable nor was the action for legal
separation converted into one for a declaration of nullity by the
counterclaim, for legal separation pre-supposes a valid marriage, while the
petition for nullity has a voidable marriage as a pre-
condition.chanroblesvirtualawlibrarychanrobles virtual law library
The first real issue in this case is: Does the death of the plaintiff before final
decree, in an action for legal separation, abate the action? If it does, will
abatement also apply if the action involves property rights?
.chanroblesvirtualawlibrarychanrobles virtual law library
An action for legal separation which involves nothing more than the bed-
and-board separation of the spouses (there being no absolute divorce in
this jurisdiction) is purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the innocent spouse (and
no one else) to claim legal separation; and in its Article 108, by providing
that the spouses can, by their reconciliation, stop or abate the proceedings
and even rescind a decree of legal separation already rendered. Being
personal in character, it follows that the death of one party to the action
causes the death of the action itself - actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because
the marriage is dissolved. The heirs cannot even continue the suit, if the
death of the spouse takes place during the course of the suit (Article 244,
Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1.
81; Cass. req., May 8, 1933, D. H. 1933,
332.") 4 .chanroblesvirtualawlibrarychanrobles virtual law library
Marriage is a personal relation or status, created under the sanction of law,

and an action for divorce is a proceeding brought for the purpose of
effecting a dissolution of that relation. The action is one of a personal
nature. In the absence of a statute to the contrary, the death of one of the
parties to such action abates the action, for the reason that death has
settled the question of separation beyond all controversy and deprived the
court of jurisdiction, both over the persons of the parties to the action and of
the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding,
before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss,
2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196
N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v.
Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97
S. W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v.
Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5chanrobles virtual law
library
The same rule is true of causes of action and suits for separation and
maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris
208).chanroblesvirtualawlibrarychanrobles virtual law library
A review of the resulting changes in property relations between spouses

shows that they are solely the effect of the decree of legal separation;
hence, they can not survive the death of the plaintiff if it occurs prior to the
decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following
effects: chanrobles virtual law library
(1) The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed;
.chanroblesvirtualawlibrarychanrobles virtual law library
(2) The conjugal partnership of gains or the absolute conjugal community of

property shall be dissolved and liquidated, but the offending spouse shall
have no right to any share of the profits earned by the partnership or
community, without prejudice to the provisions of article 176; chanrobles
virtual law library
(3) The custody of the minor children shall be awarded to the innocent
spouse, unless otherwise directed by the court in the interest of said
minors, for whom said court may appoint a guardian; chanrobles virtual law
library
(4) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in favor of
the offending spouse made in the will of the innocent one shall be revoked
by operation of law.
From this article it is apparent that the right to the dissolution of the
conjugal partnership of gains (or of the absolute community of property),
the loss of right by the offending spouse to any share of the profits earned
by the partnership or community, or his disqualification to inherit by
intestacy from the innocent spouse as well as the revocation of
testamentary provisions in favor of the offending spouse made by the
innocent one, are all rights and disabilities that, by the very terms of the
Civil Code article, are vested exclusively in the persons of the spouses; and
by their nature and intent, such claims and disabilities are difficult to
conceive as assignable or transmissible. Hence, a claim to said rights is not
a claim that "is not thereby extinguished" after a party dies, under Section
17, Rule 3, of the Rules of Court, to warrant continuation of the action
through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within such time as may be
granted...
The same result flows from a consideration of the enumeration of the

actions that survive for or against administrators in Section 1, Rule 87, of
the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against
executor or administrator. No action upon a claim for the recovery of money
or debt or interest thereon shall be commenced against the executor or
administrator; but actions to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property, real or personal, may
be commenced against him.
Neither actions for legal separation or for annulment of marriage can be

deemed fairly included in the
enumeration..chanroblesvirtualawlibrarychanrobles virtual law library
A further reason why an action for legal separation is abated by the death
of the plaintiff, even if property rights are involved, is that these rights are
mere effects of decree of separation, their source being the decree itself;
without the decree such rights do not come into existence, so that before
the finality of a decree, these claims are merely rights in expectation. If
death supervenes during the pendency of the action, no decree can be
forthcoming, death producing a more radical and definitive separation; and
the expected consequential rights and claims would necessarily remain
unborn.chanroblesvirtualawlibrarychanrobles virtual law library
As to the petition of respondent-appellee Eufemio for a declaration of

nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such
action became moot and academic upon the death of the latter, and there
could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired
by either party as a result of Article 144 of the Civil Code of the Philippines
6 could be resolved and determined in a proper action for partition by either
the appellee or by the heirs of the
appellant.chanroblesvirtualawlibrarychanrobles virtual law library
In fact, even if the bigamous marriage had not been void ab initio but only
voidable under Article 83, paragraph 2, of the Civil Code, because the
second marriage had been contracted with the first wife having been an
absentee for seven consecutive years, or when she had been generally
believed dead, still the action for annulment became extinguished as soon
as one of the three persons involved had died, as provided in Article 87,
paragraph 2, of the Code, requiring that the action for annulment should be
brought during the lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal partnership that might have
resulted from such voidable marriage must be carried out "in the testate or
intestate proceedings of the deceased spouse", as expressly provided in
Section 2 of the Revised Rule 73, and not in the annulment
proceeding.chanroblesvirtualawlibrarychanrobles virtual law library
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile

and Domestic Relations is hereby affirmed. No special pronouncement as
to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee,

Barredo, Villamor and Makasiar, JJ., concur.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 83484 February 12, 1990

CELEDONIA SOLIVIO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA
JAVELLANA VILLANUEVA, respondents.
Rex Suiza Castillon for petitioner.
Salas & Villareal for private respondent.
MEDIALDEA, J.:
This is a petition for review of the decision dated January 26, 1988 of the
Court of Appeals in CA GR CV No. 09010 (Concordia Villanueva v.
Celedonia Solivio) affirming the decision of the trial court in Civil Case No.
13207 for partition, reconveyance of ownership and possession and
damages, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered for the plaintiff

and against defendant:
a) Ordering that the estate of the late Esteban Javellana, Jr. be

divided into two (2) shares: one-half for the plaintiff and one-half
for defendant. From both shares shall be equally deducted the
expenses for the burial, mausoleum and related expenditures.
Against the share of defendants shall be charged the expenses
for scholarship, awards, donations and the 'Salustia Solivio
Vda. de Javellana Memorial Foundation;'
b) Directing the defendant to submit an inventory of the entire

estate property, including but not limited to, specific items
already mentioned in this decision and to render an accounting
of the property of the estate, within thirty (30) days from receipt
of this judgment; one-half (1/2) of this produce shall belong to
plaintiff;
c) Ordering defendant to pay plaintiff P5,000.00 as expenses of

litigation; P10,000.00 for and as attorney's fees plus costs.
SO ORDERED. (pp. 42-43, Rollo)
This case involves the estate of the late novelist, Esteban Javellana, Jr.,
author of the first post-war Filipino novel "Without Seeing the Dawn," who
died a bachelor, without descendants, ascendants, brothers, sisters,
nephews or nieces. His only surviving relatives are: (1) his maternal aunt,
petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia
Solivio; and (2) the private respondent, Concordia Javellana-Villanueva,
sister of his deceased father, Esteban Javellana, Sr.
He was a posthumous child. His father died barely ten (10) months after his
marriage in December, 1916 to Salustia Solivio and four months before
Esteban, Jr. was born.
Salustia and her sister, Celedonia (daughter of Engracio Solivio and his
second wife Josefa Fernandez), a teacher in the Iloilo Provincial High
School, brought up Esteban, Jr.
Salustia brought to her marriage paraphernal properties (various parcels of

land in Calinog, Iloilo covered by 24 titles) which she had inherited from her
mother, Gregoria Celo, Engracio Solivio's first wife (p. 325, Record), but no
conjugal property was acquired during her short-lived marriage to Esteban,
Sr.
On October 11, 1959, Salustia died, leaving all her properties to her only
child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where
she, her son, and her sister lived. In due time, the titles of all these
properties were transferred in the name of Esteban, Jr.
During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt
Celedonia and some close friends his plan to place his estate in a
foundation to honor his mother and to help poor but deserving students
obtain a college education. Unfortunately, he died of a heart attack on
February 26,1977 without having set up the foundation.
Two weeks after his funeral, Concordia and Celedonia talked about what to
do with Esteban's properties. Celedonia told Concordia about Esteban's
desire to place his estate in a foundation to be named after his mother,
from whom his properties came, for the purpose of helping indigent
students in their schooling. Concordia agreed to carry out the plan of the
deceased. This fact was admitted by her in her "Motion to Reopen and/or
Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978
in Special Proceeding No. 2540, where she stated:
4. That petitioner knew all along the narrated facts in the

immediately preceding paragraph [that herein movant is also
the relative of the deceased within the third degree, she being
the younger sister of the late Esteban Javellana, father of the
decedent herein], because prior to the filing of the petition they
(petitioner Celedonia Solivio and movant Concordia Javellana)
have agreed to make the estate of the decedent a
foundation, besides they have closely known each other due to
their filiation to the decedent and they have been visiting each
other's house which are not far away for (sic) each other. (p.
234, Record; Emphasis supplied.)
Pursuant to their agreement that Celedonia would take care of the

proceedings leading to the formation of the foundation, Celedonia in good
faith and upon the advice of her counsel, filed on March 8, 1977 Spl.
Proceeding No. 2540 for her appointment as special administratrix of the
estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended
petition (Exh. 5) praying that letters of administration be issued to her; that
she be declared sole heir of the deceased; and that after payment of all
claims and rendition of inventory and accounting, the estate be adjudicated
to her (p. 115, Rollo).
After due publication and hearing of her petition, as well as her amended
petition, she was declared sole heir of the estate of Esteban Javellana, Jr.
She explained that this was done for three reasons: (1) because the
properties of the estate had come from her sister, Salustia Solivio; (2) that
she is the decedent's nearest relative on his mother's side; and (3) with her
as sole heir, the disposition of the properties of the estate to fund the
foundation would be facilitated.
On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared
her the sole heir of Esteban, Jr. Thereafter, she sold properties of the
estate to pay the taxes and other obligations of the deceased and
proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA
FOUNDATION" which she caused to be registered in the Securities and
Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98,
Rollo).
Four months later, or on August 7, 1978, Concordia Javellana Villanueva

filed a motion for reconsideration of the court's order declaring Celedonia
as "sole heir" of Esteban, Jr., because she too was an heir of the
deceased. On October 27, 1978, her motion was denied by the court for
tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia
filed on January 7, 1980 (or one year and two months later), Civil Case No.
13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia
Javellana- Villanueva v. Celedonia Solivio" for partition, recovery of
possession, ownership and damages.
On September 3, 1984, the said trial court rendered judgment in Civil Case
No. 13207, in favor of Concordia Javellana-Villanueva.
On Concordia's motion, the trial court ordered the execution of its judgment
pending appeal and required Celedonia to submit an inventory and
accounting of the estate. In her motions for reconsideration of those orders,
Celedonia averred that the properties of the deceased had already been
transferred to, and were in the possession of, the 'Salustia Solivio Vda. de
Javellana Foundation." The trial court denied her motions for
reconsideration.
In the meantime, Celedonia perfected an appeal to the Court of Appeals

(CA GR CV No. 09010). On January 26, 1988, the Court of Appeals,
Eleventh Division, rendered judgment affirming the decision of the trial
court in toto.Hence, this petition for review wherein she raised the following
legal issues:
1. whether Branch 26 of the RTC of Iloilo had jurisdiction to
entertain Civil Case No. 13207 for partition and recovery of
Concordia Villanueva's share of the estate of Esteban
Javellana, Jr. even while the probate proceedings (Spl. Proc.
No. 2540) were still pending in Branch 23 of the same court;
2. whether Concordia Villanueva was prevented from

intervening in Spl. Proc. No. 2540 through extrinsic fraud;
3. whether the decedent's properties were subject to reserva

troncal in favor of Celedonia, his relative within the third degree
on his mother's side from whom he had inherited them; and
4. whether Concordia may recover her share of the estate after

she had agreed to place the same in the Salustia Solivio Vda.
de Javellana Foundation, and notwithstanding the fact that
conformably with said agreement, the Foundation has been
formed and properties of the estate have already been
transferred to it.
I. The question of jurisdiction—
After a careful review of the records, we find merit in the petitioner's

contention that the Regional Trial Court, Branch 26, lacked jurisdiction to
entertain Concordia Villanueva's action for partition and recovery of her
share of the estate of Esteban Javellana, Jr. while the probate proceedings
(Spl, Proc. No. 2540) for the settlement of said estate are still pending in
Branch 23 of the same court, there being as yet no orders for the
submission and approval of the administratix's inventory and accounting,
distributing the residue of the estate to the heir, and terminating the
proceedings (p. 31, Record).
It is the order of distribution directing the delivery of the residue of the

estate to the persons entitled thereto that brings to a close the intestate
proceedings, puts an end to the administration and thus far relieves the
administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367,
Philippine Commercial and Industrial Bank v. Escolin, et al., L-27860,
March 29, 1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring
Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll
the end of the proceedings. As a matter of fact, the last paragraph of the
order directed the administratrix to "hurry up the settlement of the estate."
The pertinent portions of the order are quoted below:
2. As regards the second incident [Motion for Declaration of

Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it
appears from the record that despite the notices posted and the
publication of these proceedings as required by law, no other
heirs came out to interpose any opposition to the instant
proceeding. It further appears that herein Administratrix is the
only claimant-heir to the estate of the late Esteban Javellana
who died on February 26, 1977.
During the hearing of the motion for declaration as heir on

March 17, 1978, it was established that the late Esteban
Javellana died single, without any known issue, and without any
surviving parents. His nearest relative is the herein
Administratrix, an elder [sic] sister of his late mother who reared
him and with whom he had always been living with [sic] during
his lifetime.
xxxxxxxxx
2. Miss Celedonia Solivio, Administratrix of this estate, is

hereby declared as the sole and legal heir of the late Esteban
S. Javellana, who died intestate on February 26, 1977 at La
Paz, Iloilo City.
The Administratrix is hereby instructed to hurry up with the

settlement of this estate so that it can be terminated. (pp, 14-
16, Record)
In view of the pendency of the probate proceedings in Branch 11 of the

Court of First Instance (now RTC, Branch 23), Concordia's motion to set
aside the order declaring Celedonia as sole heir of Esteban, and to have
herself (Concordia) declared as co-heir and recover her share of the
properties of the deceased, was properly filed by her in Spl. Proc. No.
2540. Her remedy when the court denied her motion, was to elevate the
denial to the Court of Appeals for review on certiorari. However, instead of
availing of that remedy, she filed more than one year later, a separate
action for the same purpose in Branch 26 of the court. We hold that the
separate action was improperly filed for it is the probate court that
has exclusive jurisdiction to make a just and legal distribution of the estate.
In the interest of orderly procedure and to avoid confusing and conflicting

dispositions of a decedent's estate, a court should not interfere with
probate proceedings pending in a co-equal court. Thus, did we rule
in Guilas v. Judge of the Court of First Instance of Pampanga, L-26695,
January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate
action to annul a project of partition executed between her and her father in
the proceedings for the settlement of the estate of her mother:
The probate court loses jurisdiction of an estate under

administration only after the payment of all the debts and the
remaining estate delivered to the heirs entitled to receive the
same. The finality of the approval of the project of The probate
court, in the exercise of its jurisdiction to make distribution, has
power to determine the proportion or parts to which each
distributed is entitled. ... The power to determine the legality or
illegality of the testamentary provision is inherent in the
jurisdiction of the court making a just and legal distribution of
the inheritance. ... To hold that a separate and independent
action is necessary to that effect, would be contrary to the
general tendency of the jurisprudence of avoiding multiplicity of
suits; and is further, expensive, dilatory, and impractical.
(Marcelino v. Antonio, 70 Phil. 388)
A judicial declaration that a certain person is the only heir of the

decedent is exclusively within the range of the administratrix
proceedings and can not properly be made an independent
action. (Litam v. Espiritu, 100 Phil. 364)
A separate action for the declaration of heirs is not proper.

(Pimentel v. Palanca, 5 Phil. 436)
partition by itself alone does not terminate the probate

proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445,
April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long
as the order of the distribution of the estate has not been
complied with, the probate proceedings cannot be deemed
closed and terminated Siguiong v. Tecson, supra); because a
judicial partition is not final and conclusive and does not prevent
the heirs from bringing an action to obtain his share, provided
the prescriptive period therefore has not elapsed (Mari v.
Bonilia, 83 Phil. 137). The better practice, however, for the heir
who has not received his share, is to demand his share through
a proper motion in the same probate or administration
proceedings, or for reopening of the probate or administrative
proceedings if it had already been closed, and not through an
independent action, which would be tried by another court or
Judge which may thus reverse a decision or order of the
probate or intestate court already final and executed and re-
shuffle properties long ago distributed and disposed of. (Ramos
v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco
v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic
v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461;
Emphasis supplied)
In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the
special proceedings for the settlement of the intestate estate of the
deceased Rafael Litam the plaintiffs-appellants filed a civil action in which
they claimed that they were the children by a previous marriage of the
deceased to a Chinese woman, hence, entitled to inherit his one-half share
of the conjugal properties acquired during his marriage to Marcosa Rivera,
the trial court in the civil case declared that the plaintiffs-appellants were
not children of the deceased, that the properties in question were
paraphernal properties of his wife, Marcosa Rivera, and that the latter was
his only heir. On appeal to this Court, we ruled that "such declarations (that
Marcosa Rivera was the only heir of the decedent) is improper, in Civil
Case No. 2071, it being within the exclusive competence of the court in
Special Proceedings No. 1537, in which it is not as yet, in issue, and, will
not be, ordinarily, in issue until the presentation of the project of partition.
(p. 378).
However, in the Guilas case, supra, since the estate proceedings had been
closed and terminated for over three years, the action for annulment of the
project of partition was allowed to continue. Considering that in the instant
case, the estate proceedings are still pending, but nonetheless, Concordia
had lost her right to have herself declared as co-heir in said proceedings,
We have opted likewise to proceed to discuss the merits of her claim in the
interest of justice.
The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207
setting aside the probate proceedings in Branch 23 (formerly Branch 11) on
the ground of extrinsic fraud, and declaring Concordia Villanueva to be a
co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of
the estate, and requiring the administratrix, Celedonia, to submit an
inventory and accounting of the estate, were improper and officious, to say
the least, for these matters he within the exclusive competence of the
probate court.
II. The question of extrinsic fraud—
Was Concordia prevented from intervening in the intestate proceedings

by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic
fraud was not alleged in Concordia's original complaint in Civil Case No.
13207. It was only in her amended complaint of March 6, 1980, that
extrinsic fraud was alleged for the first time.
Extrinsic fraud, as a ground for annulment of judgment, is any

act or conduct of the prevailing party which prevented a fair
submission of the controversy (Francisco v. David, 38 O.G.
714). A fraud 'which prevents a party from having a trial or
presenting all of his case to the court, or one which operates
upon matters pertaining, not to the judgment itself, but to the
manner by which such judgment was procured so much so that
there was no fair submission of the controversy. For instance, if
through fraudulent machination by one [his adversary], a litigant
was induced to withdraw his defense or was prevented from
presenting an available defense or cause of action in the case
wherein the judgment was obtained, such that the aggrieved
party was deprived of his day in court through no fault of his
own, the equitable relief against such judgment may be availed
of. (Yatco v. Sumagui, 44623-R, July 31, 1971). (cited in
Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v.
Villanueva, et al., 96 Phil. 248)
A judgment may be annulled on the ground of extrinsic or
collateral fraud, as distinguished from intrinsic fraud, which
connotes any fraudulent scheme executed by a prevailing
litigant 'outside the trial of a case against the defeated party, or
his agents, attorneys or witnesses, whereby said defeated party
is prevented from presenting fully and fairly his side of the case.
... The overriding consideration is that the fraudulent scheme of
the prevailing litigant prevented a party from having his day in
court or from presenting his case. The fraud, therefore, is one
that affects and goes into the jurisdiction of the court. (Libudan
v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling
Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA
318, 323)
The charge of extrinsic fraud is, however, unwarranted for the following
reasons:
1. Concordia was not unaware of the special proceeding

intended to be filed by Celedonia. She admitted in her
complaint that she and Celedonia had agreed that the latter
would "initiate the necessary proceeding" and pay the taxes
and obligations of the estate. Thus paragraph 6 of her
complaint alleged:
6. ... for the purpose of facilitating the settlement of the estate of

the late Esteban Javellana, Jr. at the lowest possible cost and
the least effort, the plaintiff and the defendant agreed that the
defendant shall initiate the necessary proceeding, cause the
payment of taxes and other obligations, and to do everything
else required by law, and thereafter, secure the partition of the
estate between her and the plaintiff, [although Celedonia
denied that they agreed to partition the estate, for their
agreement was to place the estate in a foundation.] (p. 2,
Record; emphasis supplied)
Evidently, Concordia was not prevented from intervening in the

proceedings. She stayed away by choice. Besides, she knew that the
estate came exclusively from Esteban's mother, Salustia Solivio, and she
had agreed with Celedonia to place it in a foundation as the deceased had
planned to do.
2. The probate proceedings are proceedings in rem. Notice of

the time and place of hearing of the petition is required to be
published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules
of Court). Notice of the hearing of Celedonia's original petition
was published in the "Visayan Tribune" on April 25, May 2 and
9, 1977 (Exh 4, p. 197, Record). Similarly, notice of the hearing
of her amended petition of May 26, 1977 for the settlement of
the estate was, by order of the court, published in "Bagong
Kasanag" (New Light) issues of May 27, June 3 and 10, 1977
(pp. 182-305, Record). The publication of the notice of the
proceedings was constructive notice to the whole world.
Concordia was not deprived of her right to intervene in the
proceedings for she had actual, as well as constructive notice
of the same. As pointed out by the probate court in its order of
October 27, 1978:
... . The move of Concordia Javellana, however, was filed about

five months after Celedonia Solivio was declared as the sole
heir. ... .
Considering that this proceeding is one in rem and had been

duly published as required by law, despite which the present
movant only came to court now, then she is guilty of laches for
sleeping on her alleged right. (p. 22, Record)
The court noted that Concordia's motion did not comply with the requisites
of a petition for relief from judgment nor a motion for new trial.
The rule is stated in 49 Corpus Juris Secundum 8030 as follows:
Where petition was sufficient to invoke statutory jurisdiction of

probate court and proceeding was in rem no subsequent errors
or irregularities are available on collateral attack. (Bedwell v.
Dean 132 So. 20)
Celedonia's allegation in her petition that she was the sole heir of Esteban
within the third degree on his mother's side was not false. Moreover, it was
made in good faith and in the honest belief that because the properties of
Esteban had come from his mother, not his father, she, as Esteban's
nearest surviving relative on his mother's side, is the rightful heir to them. It
would have been self-defeating and inconsistent with her claim of sole
heirship if she stated in her petition that Concordia was her co-heir. Her
omission to so state did not constitute extrinsic fraud.
Failure to disclose to the adversary, or to the court, matters

which would defeat one's own claim or defense is not such
extrinsic fraud as will justify or require vacation of the judgment.
(49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First
National Bank & Trust Co. of King City v. Bowman, 15 SW 2d
842; Price v. Smith, 109 SW 2d 1144, 1149)
It should be remembered that a petition for administration of a decedent's

estate may be filed by any "interested person" (Sec. 2, Rule 79, Rules of
Court). The filing of Celedonia's petition did not preclude Concordia from
filing her own.
III. On the question of reserva troncal—

We find no merit in the petitioner's argument that the estate of the
deceased was subject to reserva troncal and that it pertains to her as his
only relative within the third degree on his mother's side. The reserva
troncal provision of the Civil Code is found in Article 891 which reads as
follows:
ART. 891. The ascendant who inherits from his descendant any
property which the latter may have acquired by gratuitous title
from another ascendant, or a brother or sister, is obliged to
reserve such property as he may have acquired by operation of
law for the benefit of relatives who are within the third degree
and who belong to the line from which said property came.
The persons involved in reserva troncal are:
1. The person obliged to reserve is the reservor (reservista)—

the ascendant who inherits by operation of law property from
his descendants.
2. The persons for whom the property is reserved are the

reservees (reservatarios)—relatives within the third degree
counted from the descendant (propositus), and belonging to the
line from which the property came.
3. The propositus—the descendant who received by gratuitous

title and died without issue, making his other ascendant inherit
by operation of law. (p. 692, Civil Law by Padilla, Vol. II, 1956
Ed.)
Clearly, the property of the deceased, Esteban Javellana, Jr., is not

reservable property, for Esteban, Jr. was not an ascendant, but the
descendant of his mother, Salustia Solivio, from whom he inherited the
properties in question. Therefore, he did not hold his inheritance subject to
a reservation in favor of his aunt, Celedonia Solivio, who is his relative
within the third degree on his mother's side. The reserva troncal applies to
properties inherited by an ascendant from a descendant who inherited it
from another ascendant or 9 brother or sister. It does not apply to property
inherited by a descendant from his ascendant, the reverse of the situation
covered by Article 891.
Since the deceased, Esteban Javellana, Jr., died without descendants,

ascendants, illegitimate children, surviving spouse, brothers, sisters,
nephews or nieces, what should apply in the distribution of his estate are
Articles 1003 and 1009 of the Civil Code which provide:
ART. 1003. If there are no descendants, ascendants,

illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased in
accordance with the following articles.
ART. 1009. Should there be neither brothers nor sisters, nor
children of brothers or sisters, the other collateral relatives shall
succeed to the estate.
The latter shall succeed without distinction of lines or

preference among them by reason of relationship by the whole
blood.
Therefore, the Court of Appeals correctly held that:
Both plaintiff-appellee and defendant-appellant being relatives

of the decedent within the third degree in the collateral line,
each, therefore, shall succeed to the subject estate 'without
distinction of line or preference among them by reason of
relationship by the whole blood,' and is entitled one-half (1/2)
share and share alike of the estate. (p. 57, Rollo)
IV. The question of Concordia's one-half share—
However, inasmuch as Concordia had agreed to deliver the estate of the

deceased to the foundation in honor of his mother, Salustia Solivio Vda. de
Javellana (from whom the estate came), an agreement which she ratified
and confirmed in her "Motion to Reopen and/or Reconsider Order dated
April 3, 1978" which she filed in Spl. Proceeding No. 2540:
4. That ... prior to the filing of the petition they (petitioner

Celedonia Solivio and movant Concordia Javellana) have
agreed to make the estate of the decedent a
foundation, besides they have closely known each other due to
their filiation to the decedent and they have been visiting each
other's house which are not far away for (sic) each other. (p.
234, Record; Emphasis supplied)
she is bound by that agreement. It is true that by that agreement, she did
not waive her inheritance in favor of Celedonia, but she did agree to place
all of Esteban's estate in the "Salustia Solivio Vda. de Javellana
Foundation" which Esteban, Jr., during his lifetime, planned to set up to
honor his mother and to finance the education of indigent but deserving
students as well.
Her admission may not be taken lightly as the lower court did. Being a
judicial admission, it is conclusive and no evidence need be presented to
prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v.
Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v.
Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido,
G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v.
Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).
The admission was never withdrawn or impugned by Concordia who,

significantly, did not even testify in the case, although she could have done
so by deposition if she were supposedly indisposed to attend the trial. Only
her husband, Narciso, and son-in-law, Juanito Domin, actively participated
in the trial. Her husband confirmed the agreement between his wife and
Celedonia, but he endeavored to dilute it by alleging that his wife did not
intend to give all, but only one-half, of her share to the foundation (p. 323,
Record).
The records show that the "Salustia Solivio Vda. de Javellana Foundation"
was established and duly registered in the Securities and Exchange
Commission under Reg. No. 0100027 for the following principal purposes:
1. To provide for the establishment and/or setting up of

scholarships for such deserving students as the Board of
Trustees of the Foundation may decide of at least one scholar
each to study at West Visayas State College, and the University
of the Philippines in the Visayas both located in Iloilo City.
2. To provide a scholarship for at least one scholar for St.

Clements Redemptorist Community for a deserving student
who has the religious vocation to become a priest.
3. To foster, develop, and encourage activities that will promote

the advancement and enrichment of the various fields of
educational endeavors, especially in literary arts. Scholarships
provided for by this foundation may be named after its
benevolent benefactors as a token of gratitude for their
contributions.
4. To direct or undertake surveys and studies in the community

to determine community needs and be able to alleviate partially
or totally said needs.
5. To maintain and provide the necessary activities for the

proper care of the Solivio-Javellana mausoleum at Christ the
King Memorial Park, Jaro, Iloilo City, and the Javellana
Memorial at the West Visayas State College, as a token of
appreciation for the contribution of the estate of the late
Esteban S. Javellana which has made this foundation possible.
Also, in perpetuation of his Roman Catholic beliefs and those of
his mother, Gregorian masses or their equivalents will be
offered every February and October, and Requiem masses
every February 25th and October llth, their death anniversaries,
as part of this provision.
6. To receive gifts, legacies, donations, contributions,

endowments and financial aids or loans from whatever source,
to invest and reinvest the funds, collect the income thereof and
pay or apply only the income or such part thereof as shall be
determined by the Trustees for such endeavors as may be
necessary to carry out the objectives of the Foundation.
7. To acquire, purchase, own, hold, operate, develop, lease,
mortgage, pledge, exchange, sell, transfer, or otherwise, invest,
trade, or deal, in any manner permitted by law, in real and
personal property of every kind and description or any interest
herein.
8. To do and perform all acts and things necessary, suitable or

proper for the accomplishments of any of the purposes herein
enumerated or which shall at any time appear conducive to the
protection or benefit of the corporation, including the exercise of
the powers, authorities and attributes concerned upon the
corporation organized under the laws of the Philippines in
general, and upon domestic corporation of like nature in
particular. (pp. 9-10, Rollo)
As alleged without contradiction in the petition' for review:
The Foundation began to function in June, 1982, and three (3)

of its eight Esteban Javellana scholars graduated in 1986, one
(1) from UPV graduated Cum Laude and two (2) from WVSU
graduated with honors; one was a Cum Laude and the other
was a recipient of Lagos Lopez award for teaching for being the
most outstanding student teacher.
The Foundation has four (4) high school scholars in Guiso

Barangay High School, the site of which was donated by the
Foundation. The School has been selected as the Pilot
Barangay High School for Region VI.
The Foundation has a special scholar, Fr. Elbert Vasquez, who

would be ordained this year. He studied at St. Francis Xavier
Major Regional Seminary at Davao City. The Foundation
likewise is a member of the Redemptorist Association that gives
yearly donations to help poor students who want to become
Redemptorist priests or brothers. It gives yearly awards for
Creative writing known as the Esteban Javellana Award.
Further, the Foundation had constructed the Esteban S.

Javellana Multi-purpose Center at the West Visayas State
University for teachers' and students' use, and has likewise
contributed to religious civic and cultural fund-raising drives,
amongst other's. (p. 10, Rollo)
Having agreed to contribute her share of the decedent's estate to the

Foundation, Concordia is obligated to honor her commitment as Celedonia
has honored hers.
WHEREFORE, the petition for review is granted. The decision of the trial
court and the Court of Appeals are hereby SET ASIDE. Concordia J.
Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to
one-half of his estate. However, comformably with the agreement between
her and her co-heir, Celedonia Solivio, the entire estate of the deceased
should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation,"
of which both the petitioner and the private respondent shall be trustees,
and each shall be entitled to nominate an equal number of trustees to
constitute the Board of Trustees of the Foundation which shall administer
the same for the purposes set forth in its charter. The petitioner, as
administratrix of the estate, shall submit to the probate court an inventory
and accounting of the estate of the deceased preparatory to terminating the
proceedings therein.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.
Padura v. Baldovino
G.R. NO. 11960, 27 December 1958
FACTS:
Agustin Padura contracted two marriages during his lifetime. With his first
wife, Gervacia Landig, he had one child whom they named Manuel Padura,
and with his second, Benita Garing; he had two children named Fortunato
Padura and Candelaria Padura.
Agustin Padura died on April 26, 1908, leaving a last will and testament, duly
probated in the Court of First Instance of Laguna, wherein he bequeathed
his properties among his children, Manuel, Candelaria and Fortunato, and
his surviving spouse, Benita Garing. Under the probate proceedings,
Fortunate was adjudicated four parcels of land.
Fortunato Padura died unmarried, without having executed a will; and not
having any issue, the said parcels of land were inherited exclusively by her
mother, Benita Garing. She applied for and later was issued a Torrens
Certificate of Title in her name, but subject to the condition that the properties
were reservable in favor of relatives within the third degree belonging to the
line from which said property came.
Candelaria Padura died leaving as her only heirs, her four legitimate children,
Cristeta, Melania, Anicia and Pablo, all surnamed Baldovino. Six years later,
Manuel Padura also died. Surviving him are his legitimate children, Dionisia,
Felisa, Flora, Gornelio, Francisco, Juana, and Severino, all surnamed
Padura.
Upon the death of Benita Garing (the reservista), appellants and appellees
took possession of the reservable properties. The legitimate children of the
deceased Manuel Padura and Candelaria Baldovino were declared to be the
rightful reservees, and as such, entitled to the reservable properties (the
original reservees Candelaria Padura and Manuel Padura, having
predeceased the reservista).
ISSUE:
Whether the reserved properties be apportioned among them equally.
RULING:
In the relations between one reservatario and another of the same degree,
there is no call for applying Art. 891 any longer; wherefore, the respective
share of each in the reversionary property should be governed by the
ordinary rules of intestate succession. Upon the death of the ascendant
reservista, the reservable property should pass, not to all the reservatorios
as a class, but only to those nearest in degree to the descendant
(prepositus), excluding those reservatarios of more remote degree. And
within the third degree of relationship from the descendant (prepositus), the
right of representation operates in favor of nephews.
“Following the order prescribed by law in legitimate succession, when there

are re1atives of the descendant within the third degree, the right of the
nearest relative, called reservatario, over the property which the reservista
(person holding it subject to reservation) should return to him, excludes that
of the one more remote. The right of representation cannot be alleged when
the one claiming same as a reservatario of the reservable property is not
among the relatives within the third degree belonging to the line from which
such property came, inasmuch as the right granted by the Civil Code in
Article 811 is in the highest degree personal and for the exclusive benefit of
designated persons who are within the third degree of the person from whom
the reservable property came. Therefore, relatives of the fourth and the
succeeding degrees can never be considered as reservatarios, since the law
does not recognize them as such.
In spite of what has been said relative to the right of representation on the
part of one alleging his right as reservatario who is not within the third degree
of relationship, nevertheless there is right of representation on the part of
reservatarios who are within the third degree mentioned by law, as in the
case of nephews of the deceased person from whom the reservable property
came.
Proximity of degree and right of representation are basic principles of

ordinary intestate succession; so is the rule that whole blood brothers and
nephews are entitled to a share double that of brothers and nephews of half-
blood. If in determining the rights of the reservatarios inter se, proximity of
degree and the right of representation of nephews are made to apply, the
rule of double share for immediate collaterals of the whole blood should be
likewise operative.

SUPREME COURT
Manila
EN BANC
G.R. No. L-14856 November 15, 1919
ENCARNACION FLORENTINO, ET AL., plaintiffs-appellants,

vs.
MERCEDES FLORENTINO, ET AL., defendants-appellees.
Ramon Querubin, Simeon Ramos and Orense and Vera for appellants.
Vicente Foz, Jose Singsong Tongson and Angel Encarnacion for
appellees.
TORRES, J.:
On January 17, 1918, counsel for Encarnacion (together with her husband
Simeon Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino, and
Antonino of the surname Florentino; for Miguel Florentino, guardian ad
litem of the minor Rosario Florentino; for Eugenio Singson, the father and
guardian ad litem of Emilia, Jesus, Lourdes, Caridad, and Dolores of the
surname Singson y Florentino; and for Eugenio Singson, guardian of the
minors Jose and Asuncion Florentino, filed a complaint in the Court of First
Instance of Ilocos Sur, against Mercedes Florentino and her husband,
alleging as follows:
That Apolonio Isabelo Florentino II married the first time Antonia Faz de
Leon; that during the marriage he begot nine children called, Jose, Juan,
Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the
surname Florentino y de Leon; that on becoming a widower he married the
second time Severina Faz de Leon with whom he had two children,
Mercedes and Apolonio III of the surname Florentino y de Leon; that
Apolonio Isabelo Florentino II died on February 13, 1890; that he was
survived by his second wife Severina Faz de Leon and the ten children first
above mentioned; that his eleventh son, Apolonio III, was born on the
following 4th of March 1890.
That of the deceased Apolonio Isabelo's aforementioned eleven

children, Juan, Maria and Isabel died single, without leaving any
ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and
Rosario are the legitimate children of the deceased Jose Florentino who
was one of the children of the deceased Apolonio Isabelo; that Emilia,
Jesus, Lourdes, Caridad, and Dolores are the legitimate children of Espirita
Florentino, now deceased, and her husband Eugenio Singson; that Jose
and Asuncion are the children of Pedro Florentino, another son of the
deceased Apolonio Isabelo Florentino.
That on January 17 and February 13, 1890, Apolonio Isabelo Florentino

executed a will before the notary public of Ilocos Sur, instituting as his
universal heirs his aforementioned ten children, the posthumos Apolonio III
and his widow Severina Faz de Leon; that he declared, in one of the
paragraphs of said will, all his property should be divided among all of his
children of both marriages.
That, in the partition of the said testator's estate, there was given to
Apolonio Florentino III, his posthumos son, the property marked with the
letters A, B, C, D, E, and F in the complaint, a gold rosary, pieces of gold,
of silver and of table service, livestock, palay, some personal property and
other objects mentioned in the complaint.
That Apolonio Florentino III, the posthumos son of the second marriage,
died in 1891; that his mother, Severina Faz de Leon, succeeded to all his
property described in the complaint; that the widow, Severina Faz de Leon
died on November 18, 1908, leaving a will instituting as her universal
heiress her only living daughter, Mercedes Florentino; that, as such heir,
said daughter took possession of all the property left at the death of her
mother, Severina Faz de Leon; that among same is included the property,
described in the complaint, which the said Severina Faz de Leon inherited
from her deceased son, the posthumos Apolonio, as reservable property;
that, as a reservist, the heir of the said Mercedes Florentino deceased had
been gathering for herself alone the fruits of lands described in the
complaint; that each and every one of the parties mentioned in said
complaint is entitled to one-seventh of the fruits of the reservable property
described therein, either by direct participation or by representation, in the
manner mentioned in paragraph 9 of the complaint.
That several times the plaintiffs have, in an amicable manner, asked the
defendants to deliver their corresponding part of the reservable property;
that without any justifiable motive the defendants have refused and do
refuse to deliver said property or to pay for its value; that for nine years
Mercedes Florentino has been receiving, as rent for the lands mentioned,
360 bundles of palay at fifty pesos per bundle and 90 bundles of corn at
four pesos per bundle; that thereby the plaintiffs have suffered damages in
the sum of fifteen thousand four hundred and twenty-eight pesos and fifty-
eight centavos, in addition to three hundred and eight pesos and fifty-eight
centavos for the value of the fruits not gathered, of one thousand pesos
(P1,000) for the unjustifiable retention of the aforementioned reservable
property and for the expenses of this suit. Wherefore they pray it be
declared that all the foregoing property is reservable property; that the
plaintiffs had and do have a right to the same, in the quantity and
proportion mentioned in the aforementioned paragraph 9 of the complaint;
that the defendants Mercedes Florentino and her husband be ordered to
deliver to the plaintiffs their share of the property in question, of the palay
and of the corn above mentioned, or their value; and that they be
condemned to pay the plaintiffs the sum of one thousand pesos (P1,000)
together with the costs of this instance.
To the preceding complaint counsel for the defendants demurred, alleging

that the cause of action is based on the obligation of the widow Severina
Faz de Leon to reserve the property she inherited from her deceased son
Apolonio Florentino y de Leon who, in turn, inherited same from his father
Apolonio Isabelo Florentino; that, there being no allegation to the contrary,
it is to be presumed that the widow Severina Faz de Leon did not remarry
after the death of this husband nor have any natural child; that the right
claimed by the plaintiffs is not that mentioned in article 968 and the
following articles, but that established in article 811 of the Civil Code; that
the object of the provisions of the aforementioned articles is to avoid the
transfer of said reservable property to those extraneous to the family of the
owner thereof; that if the property inherited by the widow Severina Faz de
Leon from her deceased son Apolonio Florentino y Faz de Leon (property
which originated from his father and her husband) has all passed into the
hands of the defendant, Mercedes Florentino y Encarnacion, a daughter of
the common ancestor's second marriage (said Apolonio Isabelo Florentino
with the deceased Severina Faz de Leon) it is evident that the property left
at the death of the posthumos son Apolonio Florentino y Faz de Leon did
not pass after the death of his mother Severina, his legitimate heirs as an
ascendant, into the hands of strangers; that said property having been
inherited by Mercedes Florentino y Encarnacion from her mother
(Severina), article 811 of the Civil Code is absolutely inapplicable to the
present case because, when the defendant Mercedes, by operation law,
entered into and succeeded to, the possession, of the property lawfully
inherited from her mother Severina Faz de Leon, said property had, while
in the possession of her mother, lost the character of reservable property
— there being a legitimate daughter of Severina Faz de Leon with the right
to succeed her in all her rights, property and actions; that the restraints of
the law whereby said property may not passed into the possession of
strangers are void, inasmuch as the said widow had no obligation to
reserve same, as Mercedes Florentino is a forced heiress of her mother
Severina Faz de Leon; that, in the present case, there is no property
reserved for the plaintiffs since there is a forced heiress, entitled to the
property left by the death of the widow Severina Faz de Leon who never
remarried; that the obligation to reserve is secondary to the duty of
respecting the legitime; that in the instant case, the widow Severina Faz de
Leon was in duty bound to respect the legitime of her daughter Mercedes
the defendant; that her obligation to reserve the property could not be
fulfilled to the prejudice of the legitime which belongs to her forced heiress,
citing in support of these statements the decision of the supreme court of
Spain of January 4, 1911; that, finally, the application of article 811 of the
Civil Code in favor of the plaintiffs would presuppose the exclusion of the
defendant from here right to succeed exclusively to all the property, rights
and actions left by her legitimate mother, although the said defendant has a
better right than the plaintiffs; and that there would be injustice if the
property claimed be adjudicated to the plaintiffs, as well as violation of
section 5 of the Jones Law which invalidates any law depriving any person
of an equal protection. Wherefore they prayed that the demurrer be
sustained, with costs against the plaintiffs.
After the hearing of the demurrer, on August 22, 1918, the judge absolved
the defendants from the complaint and condemned the plaintiffs to pay the
costs.
Counsel for the plaintiffs excepted to this order, moved to vacate it and to
grant them a new trial; said motion was overruled; the plaintiffs expected
thereto and filed the corresponding bill of exceptions which was allowed,
certified and forwarded to the clerk of this court.
On appeal the trial judge sustained the demurrer of the defendants to the
complaint of the plaintiffs, but, instead of ordering the latter to amend their
complaint within the period prescribed by the rules — undoubtedly
believing that the plaintiffs could not alter nor change the facts constituting
the cause of action, and that, as both parties were agreed as to the facts
alleged in the complaint as well as in the demurrer, every question reduced
itself to one of the law, already submitted to the decision of the court — the
said judge, disregarding the ordinary procedure established by law,
decided the case by absolving the defendants from the complaint and by
condemning the plaintiffs to pay the costs of the instance.
There certainly was no real trial, inasmuch as the defendants, instead of

answering the complaint of the plaintiffs, confined themselves to filing a
demurrer based on the ground that the facts alleged in the complaint do not
constitute a cause of action. However, the judge preferred to absolve the
defendants, thereby making an end to the cause, instead of dismissing the
same, because undoubtedly he believed, in view of the controversy
between the parties, that the arguments adduced to support the demurrer
would be the same which the defendants would allege in their answer —
those dealing with a mere question of law which the courts would have to
decide — and that, the demurrer having been sustained, if the plaintiffs
should insist — they could do no less — upon alleging the same facts as
those set out in their complaint and if another demurrer were afterwards set
up, he would be obliged to dismiss said complaint with costs against the
plaintiffs — in spite of being undoubtedly convinced in the instant case that
the plaintiffs absolutely lack the right to bring the action stated in their
complaint.
Being of the opinion that the emendation of the indicated defects is not
necessary — as in this case what has been done does not prejudice the
parties — the appellate court will now proceed to decide the suit according
to its merits, as found in the record and to the legal provisions applicable to
the question of law in controversy so that unnecessary delay and greater
expense may be avoided, inasmuch as, even if all the ordinary proceedings
be followed, the suit would be subsequently decided in the manner and
terms that it is now decided in the opinion thoughtfully and conscientiously
formed for its determination.
In order to decide whether the plaintiffs are or are not entitled to invoke, in
their favor, the provisions of article 811 of the Civil Code, and whether the
same article is applicable to the question of law presented in this suit, it is
necessary to determine whether the property enumerated in paragraph 5 of
the complaint is of the nature of reservable property; and if so, whether in
accordance with the provision of the Civil Code in article 811, Severina Faz
de Leon (the widow of the deceased Apolonio Isabelo Florentino) who
inherited said property from her son Apolonio Florentino III (born after the
death of his father Apolonio Isabelo) had the obligation to preserve and
reserve same for the relatives, within the third degree, of her
aforementioned deceased son Apolonio III.
The above mentioned article reads:
Any ascendant who inherits from his descendant any property

acquired by the latter gratuitously from some other ascendant, or
from a brother or sister, is obliged to reserve such of the property as
he may have acquired by operation of law for the benefit of relatives
within the third degree belonging to the line from which such property
came.
During the marriage of Apolonio Isabelo Florentino II and Severina Faz de

Leon two children were born, namely the defendant Mercedes Florentino
and Apolonio Florentino III (born after the death of his father). At the death
of Apolonio Isabelo Florentino under a will, his eleven children succeeded
to the inheritance he left, one of whom, the posthumos son Apolonio III,
was given, as his share, the aforementioned property enumerated in the
complaint. In 1891 the said posthumos son Apolonio Florentino III died and
was succeeded by his legitimate mother Severina Faz de Leon, who
inherited the property he left and who on dying, November 18, 1908,
instituted by will as her sole heiress her surviving daughter, Mercedes
Florentino, the defendant herein, who took possession of all property left by
her father, same constituting the inheritance. Included in said inheritance is
the property, specified in by the posthumos son Apolonio Florentino III from
his father Apolonio Isabelo Florentino, and which, at the death of the said
posthumos son, had in turn been inherited by his mother, Severina Faz de
Leon. Even if Severina left in her will said property, together with her own,
to her only daughter and forced heiress, Mercedes Florentino, nevertheless
this property had not lost its reservable nature inasmuch as it originated
from the common ancestor of the litigants, Apolonio Isabelo; was inherited
by his son Apolonio III; was transmitted by same (by operation of law) to his
legitimate mother and ascendant, Severina Faz de Leon.
The posthumos son, Apolonio Florentino III, acquired the property, now
claimed by his brothers, by a lucrative title or by inheritance from his
aforementioned legitimate father, Apolonio Isabelo Florentino II. Although
said property was inherited by his mother, Severina Faz de Leon,
nevertheless, she was in duty bound, according to article 811 of the Civil
Code, to reserve the property thus acquired for the benefit of the relatives,
within the third degree, of the line from which such property came.
According to the provisions of law, ascendants do not inherit the reservable

property, but its enjoyment, use or trust, merely for the reason that said law
imposes the obligation to reserve and preserve same for certain designated
persons who, on the death of the said ascendants reservists, (taking into
consideration the nature of the line from which such property came) acquire
the ownership of said property in fact and by operation of law in the same
manner as forced heirs (because they are also such) — said property
reverts to said line as long as the aforementioned persons who, from the
death of the ascendant-reservists, acquire in fact the right
of reservatarios (person for whom property is reserved), and are relatives,
within the third degree, of the descendant from whom the reservable
property came.
Any ascendant who inherits from his descendant any property, while there
are living, within the third degree, relatives of the latter, is nothing but a life
usufructuary or a fiduciary of the reservable property received. He is,
however, the legitimate owner of his own property which is not reservable
property and which constitutes his legitime, according to article 809 of the
Civil Code. But if, afterwards, all of the relatives, within the third degree, of
the descendant (from whom came the reservable property) die or
disappear, the said property becomes free property, by operation of law,
and is thereby converted into the legitime of the ascendant heir who can
transmit it at his death to his legitimate successors or testamentary heirs.
This property has now lost its nature of reservable property, pertaining
thereto at the death of the relatives, called reservatarios, who belonged
within the third degree to the line from which such property
came.lawphil.net
Following the order prescribed by law in legitimate succession, when there

are relatives of the descendant within the third degree, the right of the
nearest relative, called reservatario, over the property which
the reservista (person holding it subject to reservation) should return to
him, excludes that of the one more remote. The right of representation
cannot be alleged when the one claiming same as a reservatario of the
reservable property is not among the relatives within the third degree
belonging to the line from which such property came, inasmuch as the right
granted by the Civil Code in article 811 is in the highest degree personal
and for the exclusive benefit of designated persons who are the relatives,
within the third degree, of the person from whom the reservable property
came. Therefore, relatives of the fourth and the succeeding degrees can
never be considered as reservatarios, since the law does not recognize
them as such.
In spite of what has been said relative to the right of representation on the
part of one alleging his right as reservatario who is not within the third
degree of relationship, nevertheless there is right of representation on the
part of reservatarios who are within the third degree mentioned by law, as
in the case of nephews of the deceased person from whom the reservable
property came. These reservatarios have the right to represent their
ascendants (fathers and mothers) who are the brothers of the said
deceased person and relatives within the third degree in accordance with
article 811 of the Civil Code.
In this case it is conceded without denial by defendants, that the plaintiffs

Encarnacion, Gabriel and Magdalena are the legitimate children of the first
marriage of the deceased Apolonio Isabelo Florentino II; that Ramon,
Miguel, Ceferino, Antonio, and Rosario are both grandchildren of Apolonio
Isabelo Florentino II, and children of his deceased son, Jose Florentino;
that the same have the right to represent their aforementioned father, Jose
Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the
legitimate children of the deceased Espirita Florentino, one of the
daughters of the deceased Apolonio Isabelo Florentino II, and represent
the right of their aforementioned mother; and that the other plaintiffs, Jose
and Asuncion, have also the right to represent their legitimate father Pedro
Florentino one of the sons of the aforementioned Apolonio Isabelo
Florentino II. It is a fact, admitted by both parties, that the other children of
the first marriage of the deceased Apolonio Isabelo Florentino II died
without issue so that this decision does not deal with them.
There are then seven "reservatarios" who are entitled to the reservable
property left at the death of Apolonio III; the posthumos son of the
aforementioned Apolonio Isabelo II, to wit, his three children of his first
marriage — Encarnacion, Gabriel, Magdalena; his three children, Jose,
Espirita and Pedro who are represented by their own twelve children
respectively; and Mercedes Florentino, his daughter by a second marriage.
All of the plaintiffs are the relatives of the deceased posthumos son,
Apolonio Florentino III, within the third degree (four of whom being his half-
brothers and the remaining twelve being his nephews as they are the
children of his three half-brothers). As the first four are his relatives within
the third degree in their own right and the other twelve are such by
representation, all of them are indisputably entitled as reservatarios to the
property which came from the common ancestor, Apolonio Isabelo, to
Apolonio Florentino III by inheritance during his life-time, and in turn by
inheritance to his legitimate mother, Severina Faz de Leon, widow of the
aforementioned Apolonio Isabelo Florentino II.
In spite of the provisions of article 811 of the Civil Code already cited, the
trial judge refused to accept the theory of the plaintiffs and, accepting that
of the defendants, absolved the latter from the complaint on the ground that
said article is absolutely inapplicable to the instant case, inasmuch as the
defendant Mercedes Florentino survived her brother, Apolonio III, from
whom the reservable property came and her mother, Severina Faz de
Leon, the widow of her father, Apolonio Isabelo Florentino II; that the
defendant Mercedes, being the only daughter of Severina Faz de Leon, is
likewise her forced heiress; that when she inherited the property left at the
death of her mother, together with that which came from her deceased
brother Apolonio III, the fundamental object of article 811 of the Code was
thereby complied with, inasmuch as the danger that the property coming
from the same line might fall into the hands of strangers had been avoided;
and that the hope or expectation on the part of the plaintiffs of the right to
acquire the property of the deceased Apolonio III never did come into
existence because there is a forced heiress who is entitled to such
property.
The judgment appealed from is also founded on the theory that article 811
of the Civil Code does not destroy the system of legitimate succession and
that the pretension of the plaintiffs to apply said article in the instant case
would be permitting the reservable right to reduce and impair the forced
legitimate which exclusively belongs to the defendant Mercedes Florentino,
in violation of the precept of article 813 of the same Code which provides
that the testator cannot deprive his heirs of their legitime, except in the
cases expressly determined by law. Neither can he impose upon it any
burden, condition, or substitution of any kind whatsoever, saving the
provisions concerning the usufruct of the surviving spouse, citing the
decision of the Supreme Court of Spain of January 4, 1911.
The principal question submitted to the court for decision consists mainly in
determining whether they property left at the death of Apolonio III, the
posthumos son of Apolonio Isabelo II, was or was not invested with the
character of reservable property when it was received by his mother,
Severina Faz de Leon.
The property enumerated by the plaintiffs in paragraph 5 of their complaint

came, without any doubt whatsoever, from the common ancestor Apolonio
Isabelo II, and when, on the death of Apolonio III without issue the same
passed by operation of law into the hands of his legitimate mother,
Severina Faz de Leon, it became reservable property, in accordance with
the provision of article 811 of the Code, with the object that the same
should not fall into the possession of persons other than those
comprehended within the order of person other than those comprehended
within the order of succession traced by the law from Apolonio Isabelo II,
the source of said property. If this property was in fact clothed with the
character and condition of reservable property when Severina Faz de Leon
inherited same from her son Apolonio III, she did not thereby acquire the
dominion or right of ownership but only the right of usufruct or of fiduciary
with the necessary obligation to preserve and to deliver or return it as such
reservable property to her deceased son's relatives within the third degree,
among whom is her daughter, Mercedes Florentino.
Reservable property neither comes, nor falls under, the absolute dominion
of the ascendant who inherits and receives same from his descendant,
therefore it does not form part of his own property nor become the
legitimate of his forced heirs. It becomes his own property only in case that
all the relatives of his descendant shall have died (reservista) in which case
said reservable property losses such character.
With full right Severina Faz de Leon could have disposed in her will of all
her own property in favor of her only living daughter, Mercedes Florentino,
as forced heiress. But whatever provision there is in her will concerning the
reservable property received from her son Apolonio III, or rather, whatever
provision will reduce the rights of the other reservatarios, the half brothers
and nephews of her daughter Mercedes, is unlawful, null and void,
inasmuch as said property is not her own and she has only the right of
usufruct or of fiduciary, with the obligation to preserve and to deliver same
to the reservatarios, one of whom is her own daughter, Mercedes
Florentino.
It cannot reasonably be affirmed, founded upon an express provision of

law, that by operation of law all of the reservable property, received during
lifetime by Severina Faz de Leon from her son, Apolonio III, constitutes or
forms parts of the legitime pertaining to Mercedes Florentino. If said
property did not come to be the legitimate and exclusive property of
Severina Faz de Leon, her only legitimate and forced heiress, the
defendant Mercedes, could not inherit all by operation of law and in
accordance with the order of legitimate succession, because the other
relatives of the deceased Apolonio III, within the third degree, as well as
herself are entitled to such reservable property.
For this reason, in no manner can it be claimed that the legitime of

Mercedes Florentino, coming from the inheritance of her mother Severina
Faz de Leon, has been reduced and impaired; and the application of article
811 of the Code to the instant case in no way prejudices the rights of the
defendant Mercedes Florentino, inasmuch as she is entitled to a part only
of the reservable property, there being no lawful or just reason which
serves as real foundation to disregard the right to Apolonio III's other
relatives, within the third degree, to participate in the reservable property in
question. As these relatives are at present living, claiming for it with an
indisputable right, we cannot find any reasonable and lawful motive why
their rights should not be upheld and why they should not be granted equal
participation with the defendant in the litigated property.
The claim that because of Severina Faz de Leon's forced heiress, her
daughter Mercedes, the property received from the deceased son Apolonio
III lost the character, previously held, of reservable property; and that the
mother, the said Severina, therefore, had no further obligation to reserve
same for the relatives within the third degree of the deceased Apolonio III,
is evidently erroneous for the reason that, as has been already stated, the
reservable property, left in a will by the aforementioned Severina to her
only daughter Mercedes, does not form part of the inheritance left by her
death nor of the legitimate of the heiress Mercedes. Just because she has
a forced heiress, with a right to her inheritance, does not relieve Severina
of her obligation to reserve the property which she received from her
deceased son, nor did same lose the character of reservable property, held
before the reservatariosreceived same.
It is true that when Mercedes Florentino, the heiress of the reservista

Severina, took possession of the property in question, same did not pass
into the hands of strangers. But it is likewise true that the said Mercedes is
not the only reservataria. And there is no reason founded upon law and
upon the principle of justice why the other reservatarios, the other brothers
and nephews, relatives within the third degree in accordance with the
precept of article 811 of the Civil Code, should be deprived of portions of
the property which, as reservable property, pertain to them.
From the foregoing it has been shown that the doctrine announced by the
Supreme Court of Spain on January 4, 1911, for the violation of articles
811, 968 and consequently of the Civil Code is not applicable in the instant
case.
Following the provisions of article 813, the Supreme Court of Spain held
that the legitime of the forced heirs cannot be reduced or impaired and said
article is expressly respected in this decision.
However, in spite of the efforts of the appellee to defend their supposed

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

damages and the delivery of the fruits collected, it is not proper to grant the
first for there is no evidence of any damage which can give rise to the
obligation of refunding same. As to the second, the delivery of the fruits
produced by the land forming the principal part of the reservable property,
the defendants are undoubtedly in duty bound to deliver to the plaintiffs six-
sevenths of the fruits or rents of the portions of land claimed in the
complaint, in the quantity expressed in paragraph 11 of the same, from
January 17, 1918, the date the complaint was filed; and the remaining
seventh part should go to the defendant Mercedes.
For the foregoing reasons it follows that with the reversal of the order of
decision appealed from we should declare, as we hereby do, that the
aforementioned property, inherited by the deceased Severina Faz de Leon
from her son Apolonio Florentino III, is reservable property; that the
plaintiffs, being relatives of the deceased Apolonio III within the third
degree, are entitled to six-sevenths of said reservable property; that the
defendant Mercedes is entitled to the remaining seventh part thereof; that
the latter, together with her husband Angel Encarnacion, shall deliver to the
plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from said
portion of the land and of the quantity claimed, from January 17, 1918, until
fully delivered; and that the indemnity for one thousand pesos (P1,000)
prayed for in the complaint is denied, without special findings as to the
costs of both instances. So ordered.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-34395 May 19, 1981
BEATRIZ L. GONZALES, petitioner,

vs.
COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F.
LEGARDA, ROSARIO L. VALDEZ, ALEJANDRO LEGARDA, TERESA
LEGARDA, JOSE LEGARDA, BENITO LEGARDA Y FERNANDEZ,
CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y
HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO
LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ,
FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT,
CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y
LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA. ANTONIA
LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO
LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT,
EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the
ESTATE OF DONA FILOMENA ROCES DE LEGARDA, respondents.
AQUINO, J.:1äwphï1.ñët
Beatriz Legarda Gonzales appealed from the decision of the Court of First
Instance of Manila, dismissing her complaint for partition, accounting,
reconveyance and damages and holding, as not subject to reserve troncal,
the properties which her mother Filomena Races inherited in 1943 from
Filomena Legarda (Civil Case No. 73335). The facts are as follows:
Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died

[Manila] on June 17, 1933. He was survived by his widow, Filomena Races,
and their seven children: four daughters named Beatriz, Rosario, Teresa
and Filomena and three sons named Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y Tuason were
partitioned in three equal portions by his daughters, Consuelo and Rita,
and the heirs of his deceased son Benito Legarda y De la Paz who were
represented by Benito F. Legarda.
Filomena Legarda y Races died intestate and without issue on March 19,
1943. Her sole heiress was her mother, Filomena Races Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating

extrajudicially to herself the properties which she inherited from her
deceased daughter, Filomena Legarda. The said properties consist of the
following: 1äwphï1.ñët
(a) Savings deposit in the National City Bank of New York with
a credit balance of P3,699.63.
(b) 1,429 shares of the Benguet Consolidated Mining Company

and a 1/7 interest in certain shares of the San Miguel Brewery,
Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular
Life Assurance Company and the Manila Times.
(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to

80243 (7 titles), 80260, 80261 and 57512 of the Manila registry
of deeds.
1/21st of the properties covered by TCT Nos. 48164, 84714,

48201, 48202, 48205, 48203, 48206, 48160 and 48192 of the
Manila registry of deeds;
1/21st of the property described in TCT No. 4475 of the registry

of deeds of Rizal, now Quezon City; 1/14th of the property
described in TCT No. 966 of the registry of deeds of Baguio;
1/7th of the lot and improvements at 127 Aviles described in

TCT No. 41862 of the Manila registry of deeds; 1/7th of the lots
and improvements at 181 San Rafael describe in TCT Nos.
50495 and 48161 of the Manila registry of deeds;
1/7th of the property described in TCT No. 48163 of the Manila
registry of deeds (Streets);
l/21st of the properties described in TCT Nos. 48199 and 57551

of the Manila registry of deeds (Streets and Estero):
2/21st of the property described in TCT No. 13458 of tile

registry of deeds of T0ayabas.
These are the properties in litigation in this case. As a result of the affidavit
of adjudication, Filomena Races succeeded her deceased daughter
Filomena Legarda as co-owner of the properties held proindiviso by her
other six children.
Mrs. Legarda on March 6, 1953 executed two handwritten Identical

documents wherein she disposed of the properties, which she inherited
from her daughter, in favor of the children of her sons, Benito, Alejandro
and Jose (sixteen grandchildren in all). The document reads: 1äwphï1.ñët
A mis hijos :
Dispongo que se reparta a todos mis nietos hijos de Ben,

Mandu y Pepito, los bienes que he heredado de mi difunta hija
Filomena y tambien los acciones de la Destileria La Rosario'
recientemente comprada a los hermanos Values Legarda.
De los bienes de mi hija Filomena se deducira un tote de

terreno que yo he 0donada a las Hijas de Jesus, en Guipit
La case No. 181 San Rafael, la cede a mi hijo Mandu solo la

casa; proque ella esta construida sobre terreno de los
hermanos Legarda Races. 1äwphï1.ñët
(Sgd.) FILOMENA ROCES

LEGARDA
6 Marzo 1953
During the period from July, 1958 to February, 1959 Mrs. Legarda and her
six surviving children partitioned the properties consisting of the one-third
share in the estate of Benito Legarda y Tuason which the children inherited
in representation of their father, Benito Legarda y De la Paz.
Mrs. Legarda died on September 22, 1967. Her will was admitted to
probate as a holographic will in the order dated July 16, 1968 of the Court
of First Instance of Manila in Special Proceeding No. 70878, Testate Estate
of Filomena Races Vda. de Legarda. The decree of probate was affirmed
by the Court of Appeals in Legarda vs. Gonzales, CA-G.R. No. 43480-R,
July 30,1976.
In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the
testatrix, filed on May 20, 1968 a motion to exclude from the inventory of
her mother's estate the properties which she inherited from her deceased
daughter, Filomena, on the ground that said properties
are reservable properties which should be inherited by Filomena Legarda's
three sisters and three brothers and not by the children of Benito, Alejandro
and Jose, all surnamed Legarda. That motion was opposed by the
administrator, Benito F. Legarda.
Without awaiting the resolution on that motion, Mrs. Gonzales filed on June
20, 1968 an ordinary civil action against her brothers, sisters, nephews and
nieces and her mother's estate for the purpose of securing a declaration
that the said properties are reservable properties which Mrs. Legarda could
not bequeath in her holographic will to her grandchildren to the exclusion of
her three daughters and her three sons (See Paz vs. Madrigal, 100 Phil.
1085).
As already stated, the lower court dismissed the action of Mrs. Gonzales. ln
this appeal under Republic Act No. 5440 she contends in her six
assignments of error that the lower court erred in not regarding the
properties in question as reservable properties under article 891 of the Civil
Code.
On the other hand, defendants-appellees in their six counter-assignments

of error contend that the lower court erred in not holding that Mrs. Legarda
acquired the estate of her daughter Filomena] Legarda in exchange for her
conjugal and hereditary shares in the estate of her husband Benito Legarda
y De la Paz and in not holding that Mrs. Gonzales waived her right to the
reservable properties and that her claim is barred by estoppel, laches and
prescription.
The preliminary issue raised by the private respondents as to the timeliness

of Mrs. Gonzales' petition for review is a closed matter. This Court in its
resolution of December 16, 1971 denied respondents' motion to dismiss
and gave due course to the petition for review.
In an appeal under Republic Act No. 5440 only legal issues can be raised
under undisputed facts. Since on the basis of the stipulated facts the lower
court resolved only the issue of whether the properties in question are
subject to reserva troncal that is the only legal issue to be resolved in this
appeal.
The other issues raised by the defendants-appellees, particularly those

involving factual matters, cannot be resolved in this appeal. As the trial
court did not pass upon those issues, there is no ruling which can be
reviewed by this Court.
The question is whether the disputed properties are reservable properties

under article 891 of the Civil Code, formerly article 811, and whether
Filomena Races Vda. de Legarda could dispose of them in his will in favor
of her grandchildren to the exclusion of her six children.
Did Mrs. Legarda have the right to convey mortis causa what she inherited
from her daughter Filomena to the reservees within the third degree and to
bypass the reservees in the second degree or should that inheritance
automatically go to the reservees in the second degree, the six children of
Mrs. Legarda?
As will hereinafter be shown that is not a novel issue or a question of first

impression. lt was resolved in Florentino vs. Florentino, 40 Phil. 480. Before
discussing the applicability to this case of the doctrine in
the Florentino case and other pertinent rulings, it may be useful to make a
brief discourse on the nature of reserve troncal, also called lineal, familiar,
extraordinaria o semi-troncal.
Much time, effort and energy were spent by the parties in their five briefs in
descanting on the nature of reserve troncal which together with the reserva
viudal and reversion legal, was abolished by the Code Commission to
prevent the decedent's estate from being entailed, to eliminate the
uncertainty in ownership caused by the reservation (which uncertainty
impedes the improvement of the reservable property) and to discourage the
confinement of property within a certain family for generations which
situation allegedly leads to economic oligarchy, and is incompatible with the
socialization of ownership.
The Code Commission regarded the reservas as remnants of feudalism

which fomented agrarian unrest. Moreover, the reserves, insofar as they
penalize legitimate relationship, is considered unjust and inequitable.
However, the lawmaking body, not agreeing entirely with the Code
Commission, restored the reserve troncal, a legal institution which,
according to Manresa and Castan Tobenas has provoked questions and
doubts that are difficult to resolve.
Reserva troncal is provided for in article 811 of the Spanish Civil Code, now
article 891, which reads: 1äwphï1.ñët
ART. 811. El ascendiente que heredare de su descendiente

bienes que este hubiese adquirido por titulo lucrative de otro
ascendiente, o de un hermano, se halla obligado a reservas los
que hubiere adquirido por ministerio de la ley en favor de los
parientes que eaten dentro del tercer grade y pertenezcan a la
linea de donde los bienes proceden
ART. 891. The ascendant who inherits from his descendant any
property which the latter may have acquired by gratuitous title
from another ascendant, or a brother or sister, is obliged to
reserve such property as he may have acquired by operation of
law for the benefit of relatives who are within the third degree
and who belong to the line from which said property came.
In reserve troncal (1) a descendant inherited or acquired by gratuitous title

property from an ascendant or from a brother or sister; (2) the same
property is inherited by another ascendant or is acquired by him by
operation of law from the said descendant, and (3) the said ascendant
should reserve the said property for the benefit of relatives who are within
the third degree from the deceased descendant (prepositus) and who
belong to the line from which the said property came.
So, three transmissions are involved: (I) a first transmission by lucrative title
(inheritance or donation) from an ascendant or brother or sister to the
deceased descendant; (2) a posterior transmission, by operation of law
(intestate succession or legitime) from the deceased descendant (causante
de la reserve) in favor of another ascendant, the reservor or reservista,
which two transmissions precede the reservation, and (3) a third
transmissions of the same property (in consequence of the reservation)
from the reservor to the reservees (reservatarios) or the relatives within the
third degree from the deceased descendant belonging to the line of the first
ascendant, brother or sister of the deceased descendant (6 Castan
Tobenas Derecho Civil, Part l, 1960, 6th Ed., pp. 198-9).
If there are only two transmissions there is no reserve. Thus, where one
Bonifacia Lacerna died and her properties were inherited by her son, Juan
Marbebe, upon the death of Juan, those lands should be inherited by his
half-sister, to the exclusion of his maternal first cousins. The said lands are
not reservable property within the meaning of article 811 (Lacerna vs. Vda.
de Corcino, l l l Phil. 872).
The persons involved in reserve troncal are (1) the ascendant or brother or
sister from whom the property was received by the descendant by lucrative
or gratuitous title, (2) the descendant or prepositus (prepositus) who
received the property, (3) the reservor (reservista) the other ascendant who
obtained the property from the (prepositus) by operation of law and (4) the
reserves (reservatario) who is within the third degree from
the prepositus and who belongs to the (line o tronco) from which the
property came and for whom the property should be reserved by the
reservor.
The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez,

101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-
29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not
included (Jardin vs. Villamayor, 72 Phil. 392).
The rationale of reserve troncal is to avoid "el peligro de que bienes

poseidos secularmente por una familia pasen bruscamente a titulo gratuito
a manos extrañas por el azar de los enlaces y muertes prematuras or
impeder que, por un azar de la vide personas extranas a una familia
puedan adquirir bienes que sin aquel hubieran quedado en ella (6 Castan
Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203; Padura vs. Baldovino,
104 Phil. 1065).
An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295.

ln that case, Pedro Sablan inherited two parcels of land from his father
Victorians. Pedro died in 1902, single and without issue. His mother,
Marcelina Edroso, inherited from him the two parcels of land.
It was held that the land was reservable property in the hands of Marcelina.
The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles
of Pedro Sablan, the prepositus. Marcelina could register the land under
the Torrens system in her name but the fact that the land was reservable
property in favor of her two brothers-in-law, should they survive her, should
be noted in the title.
In another case, it appears that Maria Aglibot died intestate in 1906. Her
one-half share of a parcel of conjugal land was inherited by her daughter,
Juliana Mañalac. When Juliana died intestate in 1920, said one-half share
was inherited by her father, Anacleto Mañalac who owned the other one-
half portion.
Anacleto died intestate in 1942, survived by his second wife and their six
children. lt was held that the said one-half portion was reservable property
in the hands of Anacleto Mañalac and, upon his death, should be inherited
by Leona Aglibot and Evarista Aglibot, sisters of Maria and materna aunts
of Juliana Mañalac, who belonged to the line from which said one-half
portion came (Aglibot vs. Mañalac 114 Phil. 964).
Other illustrations of reserva troncal are found in Florentino vs Florentino,

40 Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915;
Maghirang and Gutierrez vs. Balcita 46 Phil. 551; Lunsod vs. Ortega, 46
Phil. 664; Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil.
737; Centeno vs. Centeno 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil.
89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39
O.G. 1784.
The person from whom the degree should be reckoned is the descendant,
or the one at the end of the line from which the property came and upon
whom the property last revolved by descent. He is called
the prepositus(Cabardo vs. Villanueva. 44 Phil. 186, 190).
In the Cabardo case, one Cornelia Abordo inherited property from her
mother, Basilia Cabardo. When Cornelia died, her estate passed to her
father, Lorenzo Abordo. ln his hands, the property was reservable property.
Upon the death of Lorenzo, the person entitled to the property was Rosa
Cabardo, a maternal aunt of Cornelia, who was her nearest relative within
the third degree.
First cousins of the prepositus are in the fourth degree and are not
reservees. They cannot even represent their parents because
representation is confined to relatives within the third degree (Florentino vs.
Florentino, 40 Phil. 480).
Within the third degree, the nearest relatives exclude the more remote
subject to the rule of representation. But the representative should be
within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil.
1065).
Reserva troncal contemplates legitimate relationship. illegitimate

relationship and relationship by affinity are excluded.
Gratuitous title or titulo lucrativo refers to a transmission wherein the

recipient gives nothing in return such as donacion and succession
(Cabardo vs. Villanueva, 44 Phil. 186, 189-190, citing 6 Manresa, Codigo
Civil, 7th Ed., 195 l, p. 360).
The reserva creates two resolutory conditions, namely, (1) the death of the
ascendant obliged to reserve and (2) the survival, at the time of his death,
of relatives within the third degree belonging to the line from which the
property came
(Sienes vs. E Esparcia l l l Phil. 349, 353).
The reservor has the legal title and dominion to the reservable property but
subject to the resolutory condition that such title is extinguished if the
reservor predeceased the reservee. The reservor is a usufructuary of the
reservable property. He may alienate it subject to the reservation. The
transferee gets the revocable and conditional ownership of the reservor.
The transferee's rights are revoked upon the survival of the reservees at
the time of the death of the reservor but become indefeasible when the
reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349,
353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664;
Florentino vs. Florentino, 40 Phil. 480: Director of Lands vs. Aguas, 63 Phil.
279.)
The reservor's title has been compared with that of the vendee a retro in
a pacta de retro sale or to a fideicomiso conditional.
The reservor's alienation of the reservable property is subject to a

resolutory condition, meaning that if at the time of the reservor's death,
there are reservees, the transferee of the property should deliver it to the
reservees. lf there are no reservees at the time of the reservor's death, the
transferee's title would become absolute. (Lunsod vs. Ortega, 46 Phil. 664;
Gueco vs. Lacson, 118 Phil. 944; Mono vs. Nequia 93 Phil. 120).
On the other hand, the reserves has only an inchoate, expectant or

contingent right. His expectant right would disappear if he predeceased the
reservor. lt would become absolute should the reservor predecease the
reserves.
The reserves cannot impugn any conveyance made by the reservor but he
can require that the reservable character of the property be recognized by
the purchaser (Riosa vs. Rocha 48 Phil. 737; Edroso vs. Sablan, 25 Phil.
295, 312-3; Gueco vs. Lacson, 118 Phil. 944).
There is a holding that the renunciation of the reservee's right to the

reservable property is illegal for being a contract regarding future
inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96).
And there is a dictum that the reservee's right is a real right which he may
alienate and dispose of conditionally. The condition is that the alienation
shall transfer ownership to the vendee only if and when the reserves
survives the reservor (Sienes vs. Esparcia, 111 Phil. 349,
353). 1äwphï1.ñët
The reservatario receives the property as a conditional heir of

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

the ultimate acquirers of the property, can already assert the
right to prevent the reservista from doing anything that might
frustrate their reversionary right, and, for this purpose, they can
compel the annotation of their right in the registry of property
even while the (reservista) is alive (Ley Hipotecaria de
Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).
This right is incompatible with the mere expectancy that

corresponds to the natural heirs of the reservista lt is likewise
clear that the reservable property is no part of the estate of the
reservista who may not dispose of them (it) by will, so long as
there are reservatarios existing (Arroyo vs. Gerona, 58 Phil.
226, 237).
The latter, therefore, do not inherit from the reservista but from
the descendant (prepositus) of whom the reservatarios are the
heirs mortis causa, subject to the condition that they must
survive the reservista. (Sanchez Roman, Vol. VI Tomo 2, p.
286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310,
cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960,
December 27, 1958, 104 Phil. 1065).
Hence, upon the reservista's death, the reservatario nearest to

the prepositus becomes, "automatically and by operation of law, the owner
of the reservable property." (Cane vs. Director of Lands, 105 Phil. l5.)
In the instant case, the properties in question were indubitably reservable
properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor.
The reservation became a certainty when at the time of her death the
reservees or relatives within the third degree of the prepositus Filomena
Legarda were living or they survived Mrs. Legarda.
So, the ultimate issue in this case is whether Mrs. Legarda, as reservor,
could convey the reservable properties by will or mortis causa to the
reservees within the third degree (her sixteen grandchildren) to the
exclusion of the reservees in the second degree, her three daughters and
three sons. As indicated at the outset, that issue is already res
judicata or cosa juzgada.
We hold that Mrs. Legarda could not convey in her holographic will to her
sixteen grandchildren the reservable properties which she had inherited
from her daughter Filomena because the reservable properties did not form
part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor
cannot make a disposition mortis causa of the reservable properties as
long as the reservees survived the reservor.
As repeatedly held in the Cano and Padura cases, the reservees inherit the
reservable properties from the prepositus, not from the reservor.
Article 891 clearly indicates that the reservable properties should be

inherited by all the nearest relatives within the third degree from
the prepositus who in this case are the six children of Mrs. Legarda. She
could not select the reservees to whom the reservable property should be
given and deprive the other reservees of their share therein.
To allow the reservor in this case to make a testamentary disposition of the

reservable properties in favor of the reservees in the third degree and,
consequently, to ignore the reservees in the second degree would be a
glaring violation of article 891. That testamentary disposition cannot be
allowed.
We have stated earlier that this case is governed by the doctrine

of Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was
ruled: 1äwphï1.ñët
Reservable property left, through a will or otherwise, by the

death of ascendant (reservista) together with his own property
in favor of another of his descendants as forced heir, forms no
part of the latter's lawful inheritance nor of the legitime, for the
reason that, as said property continued to be reservable, the
heir receiving the same as an inheritance from his ascendant
has the strict obligation of its delivery to the relatives, within the
third degree, of the predecessor in interest (prepositus), without
prejudicing the right of the heir to an aliquot part of the property,
if he has at the same time the right of a reservatario (reserves).
ln the Florentino case, it appears that Apolonio Florentino II and his second
wife Severina Faz de Leon begot two children, Mercedes and Apolonio III.
These two inherited properties from their father. Upon Apolonio III death in
1891, his properties were inherited by his mother, Severina, who died in
1908. ln her will, she instituted her daughter Mercedes as heiress to all her
properties, including those coming from her deceased husband through
their son, Apolonio III.
The surviving children, begotten by Apolonio II with his first wife Antonia
Faz de Leon and the descendants of the deceased children of his first
marriage, sued Mercedes Florentino for the recovery of their share in the
reservable properties, which Severina de Leon had inherited from Apolonio
III which the latter had inherited from his father Apolonio II and which
Severina willed to her daughter Mercedes.
Plaintiff's theory was that the said properties, as reservable properties,

could not be disposed of in Severina's will in favor of Mercedes only. That
theory was sustained by this Court.
It was held that the said properties, being reservable properties, did not
form part of Severina's estate and could not be inherited from her by her
daughter Mercedes alone.
As there were seven reservees, Mercedes was entitled, as a reserves, to

one-seventh of the properties. The other six sevenths portions were
adjudicated to the other six reservees.
Under the rule of stare decisis et non quieta movere, we are bound to
follow in this case the doctrine of the Florentino case. That doctrine means
that as long as during the reservor's lifetime and upon his death there are
relatives within the third degree of the prepositus regardless of whether
those reservees are common descendants of the reservor and the
ascendant from whom the property came, the property retains its
reservable character. The property should go to the nearest reservees. The
reservor cannot, by means of his will, choose the reserves to whom the
reservable property should be awarded.
The alleged opinion of Sanchez Roman that there is no reserva

troncal when the only relatives within the third degree are the common
descendants of the predeceased ascendant and the ascendant who would
be obliged to reserve is irrelevant and sans binding force in the light of the
ruling in the Florentino case.
It is contended by the appellees herein that the properties in question are

not reservable properties because only relatives within the third degree
from the paternal line have survived and that when Mrs. Legarda willed the
said properties to her sixteen grandchildren, who are third-degree relatives
of Filomena Legarda and who belong to the paternal line, the reason for
the reserva troncal has been satisfied: "to prevent persons outside a family
from securing, by some special accident of life, property that would
otherwise have remained therein".
That same contention was advanced in the Florentino case where the
reservor willed the reservable properties to her daughter, a full-blood sister
of the prepositus and ignored the other six reservors, the relatives of the
half-blood of the prepositus.
In rejecting that contention, this Court held that the reservable property
bequeathed by the reservor to her daughter does not form part of the
reservor's estate nor of the daughter's estate but should be given to all the
seven reservees or nearest relatives of the prepositus within the third
degree.
This Court noted that, while it is true that by giving the reservable property
to only one reserves it did not pass into the hands of strangers,
nevertheless, it is likewise true that the heiress of the reservor was only
one of the reservees and there is no reason founded upon law and justice
why the other reservees should be deprived of their shares in the
reservable property (pp. 894-5).
Applying that doctrine to this case, it results that Mrs. Legarda could not
dispose of in her will the properties in question even if the disposition is in
favor of the relatives within the third degree from Filomena Legarda. The
said properties, by operation of Article 891, should go to Mrs. Legarda's six
children as reservees within the second degree from Filomena Legarda.
It should be repeated that the reservees do not inherit from the reservor but
from the reservor but from the prepositus, of whom the reservees are the
heirs mortis causa subject to the condition that they must survive the
reservor (Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil.
1065).
The trial court said that the disputed properties lost their reservable
character due to the non-existence of third-degree relatives of Filomena
Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to
the Legarda family, "except third-degree relatives who pertain to both" the
Legarda and Races lines.
That holding is erroneous. The reservation could have been extinguished

only by the absence of reservees at the time of Mrs. Legarda's death.
Since at the time of her death, there were (and still are) reservees
belonging to the second and third degrees, the disputed properties did not
lose their reservable character. The disposition of the said properties
should be made in accordance with article 891 or the rule on reserva
troncal and not in accordance with the reservor's holographic will. The said
properties did not form part of Mrs. Legarda's estate. (Cane vs. Director of
Lands, 105 Phil. l, 4).
WHEREFORE, the lower court's decision is reversed and set aside. lt is
hereby adjudged that the properties inherited by Filomena Roces Vda. de
Legarda from her daughter Filomena Legarda, with all the fruits and
accessions thereof, are reservable properties which belong to Beatriz,
Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y
Roces, as reservees. The shares of Rosario L. Valdes and Benito F.
Legarda, who died in 1969 and 1973, respectively, should pertain to their
respective heirs. Costs against the private respondents.
SO ORDERED.
epublic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10701 January 16, 1959
MARIA CANO, applicant-appellee,

vs.
DIRECTOR OF LANDS, EUSTAQUIA GUERRERO, ET AL., oppositors-
appellants.
JOSE FERNANDEZ, ET AL., oppositors-appellants.
Ramon C. Fernandez for appellants.

Jose B. Dealca for appellee.
REYES, J.B.L., J.:
In an amended decision dated October 9, 1951, issued in Land

Registration Case No. 12, G.L.R.O. Rec. No. 2835, the Court of First
Instance of Sorsogon decreed the registration of Lots Nos. 1798 and 1799
of the Juban (Sorsogon) Cadastre, under the following terms and
conditions:
In view of the foregoing, and it appearing that the notices have been
duly published and posted as required by law, and that the title of the
applicant to the above-mentioned two parcels of land is registrable in
law, it is hereby adjudged and decreed, and with reaffirmation of the
order of general default, that the two parcels of land described in plan
SWO-24152, known as Lots Nos. 1798 and 1799 of the Cadastral
Survey of Juban, with their improvements, be registered in the name
of Maria Cano, Filipina, 71 years of age, widow and resident of
Juban, province of Sorsogon, with the understanding that Lot No.
1799 shall be subject to the right of reservation in favor of Eustaquia
Guerrero pursuant to Article 891 of the Civil code. After this decision
shall have become final for lack of appeal therefrom within the 30-day
period from its promulgation, let the corresponding decree issue.
So ordered. (Rec. App. pp. 18-19)
The decision having become final, the decree and the Certificate of Title
(No. 0-20) were issued in the name of Maria Cano, subject to reserva
troncal in favor of Eustaquia Guerrero. In October 1955, counsel for the
reserve (reservatorio) Guerrero filed a motion with the Cadastral Court,
alleging the death of the original registered owner and reservista, Maria
Cano, on September 8, 1955, and praying that the original Certificate of
Title be ordered cancelled and a new one issued in favor of movant
Eustaquia Guerrero; and that the Sheriff be ordered to place her in
possession of the property. The motion was opposed by Jose and Teotimo
Fernandez, sons of the reservistaMaria Cano, who contended that the
application and operation of the reserva troncal should be ventilated in an
ordinary contentious proceeding, and that the Registration Court did not
have jurisdiction to grant the motion.
In view of the recorded reserva in favor of the appellee, as expressly noted

in the final decree of registration, the lower court granted the petition for the
issuance of a new certificate, for the reason that the death of
the reservistavested the ownership of the property in the petitioner as the
sole reservatorio troncal.
The oppositors, heirs of the reservista Maria Cano, duly appealed from the
order, insisting that the ownership of the reservatorio can not be decreed in
a mere proceeding under sec. 112 of Act 496, but requires a judicial
administration proceedings, wherein the rights of appellee, as
the reservatorio entitled to the reservable property, are to be declared. In
this connection, appellants argue that the reversion in favor of
the reservatorio requires the declaration of the existence of the following
facts:
(1) The property was received by a descendant by gratuitous title

from an ascendant or from a brother or sister;
(2) Said descendant dies without issue;
(3) The property is inherited by another ascendant by operation of

law; and
(4) The existence of relatives within the third degree belonging the
line from which said property came. (Appellants' Brief, p. 8)
We find the appeal untenable. The requisites enumerated by appellants

have already been declared to exist by the decree of registration wherein
the rights of the appellee as reservatario troncal were expressly
recognized:
From the above-quoted agreed stipulation of facts, it is evident that
Lot No. 1799 was acquired by the Appellant Maria Cano by
inheritance from her deceased daughter, Lourdes Guerrero who, in
turn, inherited the same from her father Evaristo Guerrero and,
hence, falls squarely under the provisions of Article 891 of the Civil
Code; and that each and everyone of the private oppositors are within
the third degree of consaguinity of the decedent Evaristo Guerrero,
and who belonging to the same line from which the property came.
It appears however, from the agreed stipulation of facts that with the
exception of Eustaquia Guerrero, who is the only living daughter of
the decedent Evaristo Guerrero, by his former marriage, all the other
oppositors are grandchildren of the said Evaristo Guerrero by his
former marriages. Eustaquia Guerrero, being the nearest of kin,
excludes all the other private oppositors, whose decree of
relationship to the decedent is remoter (Article 962, Civil Code;
Director of Lands vs. Aguas, 62 Phil., 279). (Rec. App. pp. 16-17)
This decree having become final, all persons (appellees included) are
bared thereby from contesting the existence of the constituent elements of
the reserva. The only requisites for the passing of the title from
the reservista to the appellee are: (1) the death of the reservista; and (2)
the fact that the reservatario has survived the reservista. Both facts are
admitted, and their existence is nowhere questioned.
The contention that an intestacy proceeding is still necessary rests upon

the assumption that the reservatario will succeed in, or inherit,
the reservable property from the reservista. This is not true.
The reservatario is not the reservista's successor mortis causa nor is
the reservable property part of the reservista's estate;
the reservatarioreceives the property as a conditional heir of the
descendant ( prepositus), said property merely reverting to the line of origin
from which it had temporarily and accidentally strayed during
the reservista's lifetime. The authorities are all agreed that there
being reservatarios that survive the reservista, the latter must be deemed
to have enjoined no more than a life interest in the reservable property.
It is a consequence of these principles that upon the death of

the reservista, the reservatario nearest to theprepositus (the appellee in
this case) becomes, automatically and by operation of law, the owner of the
reservable property. As already stated, that property is no part of the estate
of the reservista, and does not even answer for the debts of the latter.
Hence, its acquisition by the reservatario may be entered in the property
records without necessity of estate proceedings, since the basic requisites
therefor appear of record. It is equally well settled that the reservable
property can not be transmitted by a reservista to her or his own
successors mortis causa,(like appellants herein) so long as
a reservatario within the third degree from the prepositus and belonging to
the line whence the property came, is in existence when
the reservista dies.
Of course, where the registration decree merely specifies the reservable

character of the property, without determining the identity of
the reservatario (as in the case of Director of Lands vs. Aguas, 63 Phil.,
279) or where several reservatarios dispute the property among
themselves, further proceedings would be unavoidable. But this is not the
case. The rights of the reservataria Eustaquia Guerrero have been
expressly recognized, and it is nowhere claimed that there are
other reservatarios of equal or nearer degree. It is thus apparent that the
heirs of the reservista are merely endeavoring to prolong their enjoyment of
the reservable property to the detriment of the party lawfully entitled
thereto.
We find no error in the order appealed from and therefore, the same is
affirmed with costs against appellants in both instances. So ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador,

Concepcion and Endencia JJ., concur.

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Republic of the Philippines

G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA

ABAD SANTOS, J.:

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11,

Una sexta parte (1/6) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal...................

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion

Cuenta de Ahorros en el Philippine Trust

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez,

El precedente legado en nuda propiedad de la participacion

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del

En cuanto a la mitad de dichas dos terceras partes, a favor de

A pesar de las sustituciones fideiconiisarias precedentemente

On June 23, 1966, the administratrix submitted a project of partition as

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of

It may be useful to recall that "Substitution is the appoint- judgment of

ART. 859. The testator may designate one or more persons to

A simple substitution, without a statement of the cases to which

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the

The appellants do not question the legality of the substitution so provided.

The appellants also question the sustitucion vulgar y fideicomisaria in

As regards the substitution in its fideicommissary aspect, the appellants are

Scaevola Maura, and Traviesas construe "degree" as

From this, it follows that the fideicommissary can only be either

3. The usufruct of Wanda.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private

This opinion notwithstanding, We uphold the usufruct in favor of Wanda

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is

One-half (1/2) thereof to his widow as her legitime;

The distribution herein ordered supersedes that of the court a quo. No

Aquino J., took no part.

[G.R. No. 113725. June 29, 2000.]

JOHNNY S. RABADILLA, 1, Petitioner, v. COURT OF APPEALS AND

The antecedent facts are as follows:chanrob1es virtual 1aw library

In a Codicil appended to the Last Will and Testament of testatrix Aleja

(a) It is also my command, in this my addition (Codicil), that should I die

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos

2. Defendant-heirs failed to comply with their obligation to deliver one

The plaintiff then prayed that judgment be rendered ordering defendant-

On February 26, 1990, the defendant-heirs were declared in default but on

That the above-mentioned amount will be paid or delivered on a staggered

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY

However, there was no compliance with the aforesaid Memorandum of

On appeal by plaintiff, the First Division of the Court of Appeals reversed

"Therefore, the evidence on record having established plaintiff-appellant’s

Dissatisfied with the aforesaid disposition by the Court of Appeals,

The petition is not impressed with merit.