G.R. No.

L-1787 August 27, 1948 and influence on the part of the beneficiaries
instituted therein, principally the testator's sister,
Testacy of Sixto Lopez. JOSE S. LOPEZ, Clemencia Lopez, and the herein proponent, Jose S.
petitioner-appellee, vs. AGUSTIN LIBORO, Lopez; and (5) that the signature of the testator was
oppositor-appellant. procured by fraud or trick.

Tirona, Gutierrez and Adorable for appellant. Ramon In this instance only one of these objections is
Diokno for appellee. reiterated, formulated in these words: "That the court
a quo erred in holding that the document Exhibit "A"
TUASON, J.: was executed in all particulars as required by law."
To this objection is added the alleged error of the
In the Court of First Instance of Batangas the court "in allowing the petitioner to introduce evidence
appellant opposed unsuccessfully the probate of that Exhibit "A" was written in a language known to
what purports to be the last will and testament the decedent after petitioner rested his case and over
(Exhibit A) of Don Sixto Lopez, who died at the age the vigorous objection of the oppositor.
of 83 in Balayan, Batangas, on March 3, 1947,
almost six months after the document in question The will in question comprises two pages, each of
was executed. In the court below, the present which is written on one side of a separate sheet. The
appellant specified five grounds for his opposition, to first sheet is not paged either in letters or in Arabic
wit: (1) that the deceased never executed the alleged numerals. This, the appellant believes, is a fatal
will; (2) that his signature appearing in said will was a defect.
forgery; (3) that at the time of the execution of the
will, he was wanting in testamentary as well as The purpose of the law in prescribing the paging of
mental capacity due to advanced age; (4) that, if he wills is guard against fraud, and to afford means of
did ever execute said will, it was not executed and preventing the substitution or of defecting the loss of
attested as required by law, and one of the alleged any of its pages. (Abangan vs. Abangan, 40 Phil.,
instrumental witnesses was incapacitated to act as 476.) In the present case, the omission to put a page
such; and it was procured by duress, influence of number on the first sheet, if that be necessary, is
fear and threats and undue and improper pressure supplied by other forms of identification more
trustworthy than the conventional numerical words or the instrumental witnesses as are set out in the
characters. The unnumbered page is clearly appellant's brief are incidents not all of which every
identified as the first page by the internal sense of its one of the witnesses can be supposed to have
contents considered in relation to the contents of the perceived, or to recall in the same order in which
second page. By their meaning and coherence, the they occurred.
first and second lines on the second page are
undeniably a continuation of the last sentence of the Everyday life and the result of investigations made in
testament, before the attestation clause, which starts the field of experimental psychology show that the
at the bottom of the preceding page. Furthermore, contradictions of witnesses generally occur in the
the unnumbered page contains the caption details of a certain incident, after a long series of
"TESTAMENTO," the invocation of the Almighty, and questioning, and far from being an evidence of
a recital that the testator was in full use of his falsehood constitute a demonstration of good faith.
testamentary faculty, — all of which, in the logical Inasmuch as not all those who witness an incident
order of sequence, precede the direction for the are impressed in like manner, it is but natural that in
disposition of the marker's property. Again, as page relating their impressions they should not agree in
two contains only the two lines above mentioned, the the minor details; hence, the contradictions in their
attestation clause, the mark of the testator and the testimony. (People vs. Limbo, 49 Phil., 99.)
signatures of the witnesses, the other sheet can not
by any possibility be taken for other than page one. The testator affixed his thumbmark to the instrument
Abangan vs. Abangan, supra, and Fernandez vs. instead of signing his name. The reason for this was
Vergel de Dios, 46 Phil., 922 are decisive of this that the testator was suffering from "partial paralysis."
issue. While another in testator's place might have directed
someone else to sign for him, as appellant contends
Although not falling within the purview and scope of should have been done, there is nothing curious or
the first assignment of error, the matter of the suspicious in the fact that the testator chose the use
credibility of the witnesses is assailed under this of mark as the means of authenticating his will. It was
heading. On the merits we do not believe that the a matter of taste or preference. Both ways are good.
appellant's contention deserves serious A statute requiring a will to be "signed" is satisfied if
consideration. Such contradictions in the testimony of the signature is made by the testator's mark. (De
Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. proofs, they are allowed to offer rebutting evidence
L., 117.) only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit
With reference to the second assignment of error, we them to offer evidence upon their original case, and
do not share the opinion that the trial court its ruling will not be disturbed in the appellate court
communicated an abuse of discretion in allowing the where no abuse of discretion appears. (Siuliong and
appellant to offer evidence to prove knowledge of Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36
Spanish by the testator, the language in which the Phil., 804.) So, generally, additional evidence is
will is drawn, after the petitioner had rested his case allowed when it is newly discovered, or where it has
and after the opponent had moved for dismissal of been omitted through inadvertence or mistake, or
the petition on the ground of insufficiency of where the purpose of the evidence is to the evidence
evidence. It is within the discretion of the court is to correct evidence previously offered. (I Moran's
whether or not to admit further evidence after the Comments on the Rules of Court, 2d ed., 545; 64 C.
party offering the evidence has rested, and this J., 160-163.) The omission to present evidence on
discretion will not be reviewed except where it has the testator's knowledge of Spanish had not been
clearly been abused. (64 C. J., 160.) More, it is within deliberate. It was due to a misapprehension or
the sound discretion of the court whether or not it will oversight.
allow the case to be reopened for the further
introduction of evidence after a motion or request for Although alien to the second assignment of error, the
a nonsuit, or a demurrer to the evidence, and the appellant impugns the will for its silence on the
case may be reopened after the court has testator's understanding of the language used in the
announced its intention as to its ruling on the testament. There is no statutory requirement that
request, motion, or demurrer, or has granted it or has such knowledge be expressly stated in the will itself.
denied the same, or after the motion has been It is a matter that may be established by proof
granted, if the order has not been written, or entered aliunde. This Court so impliedly ruled in Gonzales vs.
upon the minutes or signed. (64 C. J., 164.) Laurel, 46 Phil., 781, in which the probate of a will
written in Tagalog was ordered although it did not
In this jurisdiction this rule has been followed. After say that the testator knew that idiom. In fact, there
the parties have produced their respective direct was not even extraneous proof on the subject other
than the fact that the testator resided in a Tagalog This case was certified to this Tribunal by the Court
region, from which the court said "a presumption of Appeals for final determination pursuant to Section
arises that said Maria Tapia knew the Tagalog 3, Rule 50 of the Rules of Court.
dialect.
As found by the Court of Appeals:
The order of the lower court ordering the probate of
the last will and testament of Don Sixto Lopez is ... On January 11, 1977, appellant filed a petition with
affirmed, with costs. the Court of First Instance of Rizal for the probate of
the holographic will of Ricardo B. Bonilla and the
Paras, Pablo, Perfecto, Bengzon, Briones and issuance of letters testamentary in her favor. The
Padilla, JJ., concur. petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla,
Wilferine Bonilla Treyes Expedita Bonilla Frias and
G.R. No. L-58509 December 7, 1982 Ephraim Bonilla on the following grounds:

IN THE MATTER OF THE PETITION TO APPROVE (1) Appellant was estopped from claiming that the
THE WILL OF RICARDO B. BONILLA deceased, deceased left a will by failing to produce the will
MARCELA RODELAS, petitioner-appellant, within twenty days of the death of the testator as
vs. AMPARO ARANZA, ET AL., oppositors- required by Rule 75, section 2 of the Rules of Court;
appellees, ATTY. LORENZO SUMULONG,
intervenor. (2) The alleged copy of the alleged holographic will
did not contain a disposition of property after death
Luciano A. Joson for petitioner-appellant. and was not intended to take effect after death, and
therefore it was not a will
Cesar Paralejo for oppositor-appellee.
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise it
would produce no effect, as held in Gam v. Yap, 104
RELOVA, J.: Phil. 509; and
(4 ) The deceased did not leave any will, holographic Court, to which the appellant in turn filed an
or otherwise, executed and attested as required by opposition. On July 23, 1979, the court set aside its
law. order of February 23, 1979 and dismissed the
petition for the probate of the will of Ricardo B.
The appellees likewise moved for the consolidation Bonilla. The court said:
of the case with another case Sp. Proc. No, 8275).
Their motion was granted by the court in an order ... It is our considered opinion that once the original
dated April 4, 1977. copy of the holographic will is lost, a copy thereof
cannot stand in lieu of the original.
On November 13, 1978, following the consolidation
of the cases, the appellees moved again to dismiss In the case of Gam vs. Yap, 104 Phil. 509, 522, the
the petition for the probate of the will. They argued Supreme Court held that 'in the matter of holographic
that: wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity
(1) The alleged holographic was not a last will but of said wills.
merely an instruction as to the management and
improvement of the schools and colleges founded by MOREOVER, this Court notes that the alleged
decedent Ricardo B. Bonilla; and holographic will was executed on January 25, 1962
while Ricardo B. Bonilla died on May 13, 1976. In
(2) Lost or destroyed holographic wills cannot be view of the lapse of more than 14 years from the time
proved by secondary evidence unlike ordinary wills. of the execution of the will to the death of the
decedent, the fact that the original of the will could
Upon opposition of the appellant, the motion to not be located shows to our mind that the decedent
dismiss was denied by the court in its order of had discarded before his death his allegedly missing
February 23, 1979. Holographic Will.
The appellees then filed a motion for reconsideration Appellant's motion for reconsideration was denied.
on the ground that the order was contrary to law and Hence, an appeal to the Court of Appeals in which it
settled pronouncements and rulings of the Supreme is contended that the dismissal of appellant's petition
is contrary to law and well-settled jurisprudence. destroyed and no other copy is available, the will can
not be probated because the best and only evidence
On July 7, 1980, appellees moved to forward the is the handwriting of the testator in said will. It is
case to this Court on the ground that the appeal does necessary that there be a comparison between
not involve question of fact and alleged that the trial sample handwritten statements of the testator and
court committed the following assigned errors: the handwritten will. But, a photostatic copy or xerox
copy of the holographic will may be allowed because
I. THE LOWER COURT ERRED IN HOLDING THAT comparison can be made with the standard writings
A LOST HOLOGRAPHIC WILL MAY NOT BE of the testator. In the case of Gam vs. Yap, 104
PROVED BY A COPY THEREOF; PHIL. 509, the Court ruled that "the execution and
the contents of a lost or destroyed holographic will
II. THE LOWER COURT ERRED IN HOLDING may not be proved by the bare testimony of
THAT THE DECEDENT HAS DISCARDED BEFORE witnesses who have seen and/or read such will. The
HIS DEATH THE MISSING HOLOGRAPHIC WILL; will itself must be presented; otherwise, it shall
produce no effect. The law regards the document
III. THE LOWER COURT ERRED IN DISMISSING
itself as material proof of authenticity." But, in
APPELLANT'S WILL.
Footnote 8 of said decision, it says that "Perhaps it
The only question here is whether a holographic will may be proved by a photographic or photostatic
which was lost or cannot be found can be proved by copy. Even a mimeographed or carbon copy; or by
means of a photostatic copy. Pursuant to Article 811 other similar means, if any, whereby the authenticity
of the Civil Code, probate of holographic wills is the of the handwriting of the deceased may be exhibited
allowance of the will by the court after its due and tested before the probate court," Evidently, the
execution has been proved. The probate may be photostatic or xerox copy of the lost or destroyed
uncontested or not. If uncontested, at least one holographic will may be admitted because then the
Identifying witness is required and, if no witness is authenticity of the handwriting of the deceased can
available, experts may be resorted to. If contested, at be determined by the probate court.
least three Identifying witnesses are required.
WHEREFORE, the order of the lower court dated
However, if the holographic will has been lost or
October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order LABRADOR, J.:
dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is This is an appeal from an order of the Court of
hereby SET ASIDE. First Instance of Rizal, Pasay City Branch, Hon.
Jesus Perez presiding, appointing Chung Kiat Hua
SO ORDERED. as administrator of the estate of the deceased Chung
Liu in Special proceeding No. 1552-P of said court.
Teehankee, Actg. C.J., Melencio-Herrera, Plana,
Vasquez and Gutierrez, Jr., JJ., concur. On December 7, 1957, Ngo The Hua, claiming
to be surviving spouse of the deceased Chung Liu,
G.R. No. L-17091 September 30, 1963 filed a petition to be appointed administratrix of the
estate of aforementioned deceased. Her petition was
IN THE MATTER OF THE ESTATE OF THE opposed Chung Kiat Hua, Lily Chung Cho, Bonifacio
DECEASED CHUNG LIU, NGO THE HUA, Chung Sio Pek and Chung Ka Bio, all claiming to be
petitioner-appellant, vs. CHUNG KIAT HUA, LILY children of the deceased Chung Liu by his first wife,
CHUNG CHO, BONIFACIO CHUNG SIONG PEK Tan Hua. They claim that Ngo The Hua is morally
and CHUNG KA BIO, oppositors-appellees, and physically unfit to execute the duties of the trust
CHUNG KIAT, KANG, oppositor-appellant, as administratrix, and that she and the deceased
PHILIPPINE TRUST COMPANY, special have secured an absolute divorce in Taiwan, both
administrator. being Chinese citizens, confirmed a legalized by the
Taipei District Court, Taipei, Taiwan August 25,
Lorenzo Sumulong for petitioner-appellant. Zosimo 1955. In this same opposition they prayed the Chung
Rivas for oppositor-appellant Chung Kiat Kang. Kiat Hua, allegedly the eldest child of the deceased,
Bienvenido A. Tan, Jr. for oppositor-appellee be appointed administrator instead. These oppositors
Bonifacio Chung Siong Pek. Crispin D. Baizas for prayer was in turn opposed by Ngo The Hua who
other oppositors-appellees. claim that the oppositors are not children of Chung
Liu.

On January 13, 1957, Chung Kiat Kang,

claiming be a nephew of the deceased, filed his amicable settlement with the oppositors-appellees.
opposition to the appointment of either Ngo The Hua Her petition was granted by this Court in a resolution
or Chung Kiat Hu on the ground that to be appointed dated June 26, 1961.
they must first prove their respective relationship to
the deceased Chung Li and prayed that he be Hence only the appeal of oppositor Chung Kiat
appointed administrator. Kang remains for the consideration of this Court.

The petition was heard and evidence Appellant now contends that the lower court
presented by both petitioner Ngo The Hua and the erred in passing upon the validity of the divorce
oppositors Chung Kiat Hua, et al. When Chung Kiat obtained by the petitioner and the deceased and
Kang's turn to present his evidence came, he upon the filiation of the oppositors-appellees, such
manifested, through his counsel, that he was waiving being a prejudgment "since it is well-settled that the
his right to present evidence in so far as the declaration of heirs shall only take place after all
appointment of administrator of the estate is debts, expenses and taxes have been paid" in
concerned (t.s.n. pp. 3-6, hearing of July 3, 1958). accordance with See. 1, Rule 91 of the Rules of
Court. The pertinent portion of the section cited by
On December 2, 1959, after a lengthy hearing, appellant is as follows:.
the low court found that Ngo The Hua and the
deceased were validly divorced by the SECTION 1. When order for distribution of
aforementioned Taipei District Court, and that Chung residue made. — . . When the debts, funeral
Kiat Hua, Lily Chung Cho, Bonifacio Chung Siong charges, and expenses of administration, the
Pek and Chung Kiat Bio are children of the allowances to the widow and inheritance tax, if any,
deceased. So it issued the order appointing Chung chargeable to the estate in accordance with law,
Kiat Hua as administrator of the estate of Chung Liu. have been paid, the court . . shall assign the residue
of the estate of the Persons entitled to the same . .
From this order, both the petitioner and Chung
Kiat Kang appealed. On May 30, 1961, however, No distribution shall be allowed until payment
petitioner Ngo The Hua filed a petition to withdraw of the obligations above-mentioned has been made
her appeal stating that she had entered into an or provided for . . (Emphasis supplied).
 A cursory reading of the above-quoted section deceased Chu Liu, the lower court necessarily had to
discloses that what the court is enjoined from doing pass first on the truth of their respective claims of
is the assignment or distribution of the residue of the relationship to be able to appoint an administrator in
deceased's estate before the above-mentioned accordance with the aforementioned order of
obligations chargeable to the estate are first paid. preference.
Nowhere from said section may it be inferred that the
court cannot make a declaration of heirs prior to the Let it be made clear, that what the lower court
satisfaction of these obligations. It is to be noted, actual decided and what we also decide is the
however, that the court in making the appointment of relationships between the deceased and the parties
the administrator did not purport to make a of claiming the right to be appointed his
declaration of heirs. administrator, to determine who among them is
entitled to the administration, not who are his heirs
On the other hand, it is clear from the facts of who are entitled to share in his estate. This issue of
this case that is was deemed necessary by the lower heirship is one to be determined in the decree of
court to determine the relationship of the parties, as distribution, and the findings of the court in the case
advanced by petitioner and the oppositors-appellees, at bar on the relationship of the parties is not a final
to be able to appoint an administrator in accordance determination of such relationships as a basis of
with the order preference established in Section 5, distribution.
1awphîl.nèt

Rule 79 of the Rules of Court. Said section provides

that letters of administration shall be granted to the Having resolved the issue raised, it is
surviving spouse the next of kin, or to any principal unnecessary to rule on the other questions raised by
creditor, in this order. Oppositors-appellees denied the appellant Chun Kiat Rang. It is well-settled that
petitioner Ngo The Hua's claim that she is the for a person to be able to intervene in an
surviving spouses of Chung Liu, and petitioner administration proceeding concerning the estate of a
likewise denied the oppositors-appellees' claim that deceased, it is necessary for him to have interest in
they are children of the deceased. Since these such estate (Sec. 4, Rule 80, Rules of Court Moran,
applicants were asking for the letter of administration Comments on the Rules of Court, Vol. II, 195 ed. P.
on the theory that they are preferred according to 382). An interested party has been defined in this
Section 5 Rule 79 because of their relationship to the connection as one who would be benefited by the
estate such as an heir, or one who has a certain Ana Maria Alcantara, plaintiff-appellee,
claim against the estate, such as a creditor vs. MARIANO GARCHITORENA, and JOSE
(Saguinsin vs. Lindayag, et al., G.R. No. L-17759, CASIMIRO, Sheriff of the Court of First Instance
Dee. 17, 1962; Intestate Estate Julio Magbanwa, 40 of Manila, defendants-appellants.
O.G. 1171; Williams vs. Williams, 11 Ga. 1006, cited
in Francisco, Rules of Court, Vol. IV, 195 ed., p. L. D. Lockwood and Jose M. Casal for
411). Appellant Chung Kiat Kang does not claim of to appellants. Eduardo Gutierrez Repide and Leoncio
be a creditor of Chung Liu's estate. Neither is he an B. Monzon for appellee.
heir in accordance with the Civil Code of the
Republic of China (Exh. 28 of Chung Kiat Hua), the ROMUALDEZ, J.:
law that applies in this case, Chung Liu being a
Chinese citizen (Art. 16, New Civil Code). The The amount of P21,428.58 is on deposit in the
appellant not having any interest in Chung Liu's plaintiff's name with the association known as La
estate, either as heir or creditor, he cannot be Urbana in Manila, as the final payment of the
appointed as co-administrator of the estate, as he liquidated credit of Ana Maria Alcantara, deceased,
now prays. whose heiress is said plaintiff, against Andres
Garchitorena, also deceased, represented by his
WHEREFORE, the order appealed from is son, the defendant Mariano Garchitorena.
hereby affirmed, with costs against appellants. So
ordered. And as said Mariano Garchitorena held a judgment
for P7,872.23 against Joaquin Perez Alcantara,
Bengzon, C.J., Padilla, Bautista Angelo, Barrera, husband of the plaintiff, Carmen G. de Perez, the
Paredes, Dizon, Regala and Makalintal, JJ., sheriff pursuant to the writ of execution issued in said
concur. Concepcion and Reyes, J.B.L., JJ., took no judgment, levied an attachment on said amount
part. deposited with La Urbana.

The plaintiff, alleging that said deposit belongs to the

G.R. No. L-31703 February 13, 1930 fideicommissary heirs of the decedent Ana Maria
Alcantara, secured a preliminary injunction
CARMEN G. DE PEREZ, trustee of the estate of
restraining the execution of said judgment on the to probate, and whose legal force and effect is not in
sum so attached. The defendants contend that the dispute.
plaintiff is the decedent's universal heiress, and pray
for the dissolution of the injunction. The clauses of said will relevant to the points in
dispute, between the parties are the ninth, tenth, and
The court below held that said La Urbana deposit eleventh, quoted below:
belongs to the plaintiff's children as fideicommissary
heirs of Ana Maria Alcantara, and granted a final writ Ninth. Being single and without any forced heir, to
of injunction. show my gratitude to my niece-in-law, Carmen
Garchitorena, of age, married to my nephew, Joaquin
The defendants insist in their contentions, and, in Perez Alcantara, and living in this same house with
their appeal from the decision of the trial court, me, I institute her as my sole and universal heiress to
assign the following errors: the remainder of my estate after the payment of my
debts and legacies, so that upon my death and after
1. The lower court erred in holding that a trust was probate of this will, and after the report of the
created by the will of Doña Ana Maria Alcantara. committee on claims and appraisal has been
rendered and approved, she will receive from my
2. The lower court erred in concluding and declaring executrix and properties composing my hereditary
that the amount of P21,428.58 deposited with La estate, that she may enjoy them with God's blessing
Urbana is the property of the children of the plaintiff and my own.
as "herederos fidei-comisarios."
Tenth. Should my heiress Carmen Garchitorena die,
3. The lower court erred in making the injunction I order that my whole estate shall pass unimpaired to
permanent and condemning defendant to pay the her surviving children; and should any of these die,
costs. his share shall serve to increase the portions of his
surviving brothers (and sisters) by accretion, in such
The question here raised is confined to the scope wise that my estate shall never pass out of the hands
and meaning of the institution of heirs made in the of my heiress or her children in so far as it is legally
will of the late Ana Maria Alcantara already admitted possible.
Eleventh. Should my aforesaid heiress, Carmen that, considering the nature of simple substitution by
Garchitorena, die after me while her children are still the heir's death before the testator, and the fact that
in their minority, I order that my estate be by clause XI in connection with clause X, the
administered by my executrix, Mrs. Josefa Laplana, substitution is ordered where the heiress instituted
and in her default, by Attorney Ramon Salinas and in dies after the testatrix, this cannot be a case of
his default, by his son Ramon Salinas; but the simple substitution.
direction herein given must not be considered as an
indication of lack of confidence in my nephew The existence of a substitution in the will is not and
Joaquin Perez Alcantara, whom I relieve from the cannot be denied, and since it cannot be a simple
duties of administering my estate, because I substitution in the light of the considerations above
recognize that his character is not adapted to stated, let us now see whether the instants case is a
management and administration. fideicommissary substitution.

The appellants contend that in these clauses the In clause IX, the testatrix institutes the plaintiff herein
testatrix has ordered a simple substitution, while the her sole and universal heiress, and provides that
appellee contends that it is a fideicommissary upon her death (the testatrix's) and after probate of
substitution. the will and approval of the report of the committee
on claims and appraisal, said heiress shall receive
This will certainly provides for a substitution of heirs, and enjoy the whole hereditary estate. Although this
and of the three cases that might give rise to a clause provides nothing explicit about substitution, it
simple substitution (art. 774, Civil Code), only the does not contain anything in conflict with the idea of
death of the instituted heiress before the testatrix fideicommissary substitution. The fact that the
would in the instant case give place to such plaintiff was instituted the sole and universal heiress
substitution, inasmuch as nothing is said of the does not prevent her children from receiving, upon
waiver of inheritance, or incapacity to accept it. As a her death and in conformity with the express desire
matter of fact, however, clause XI provides for the of the testatrix, the latter's hereditary estate, as
administration of the estate in case the heiress provided in the following (above quoted) clauses
instituted should die after the testatrix and while the which cannot be disregarded if we are to give a
substitute heirs are still under age. And it is evident correct interpretation of the will. The word sole does
not necessarily exclude the idea of substitute heirs; a part of the estate.
and taking these three clauses together, such word
means that the plaintiff is the sole heiress instituted 3. A second heir.
in the first instance.
To these requisites, the decision of November 18,
The disposition contained in clause IX, that said 1918 adds another, namely that the
heiress shall receive and enjoy the estate, is not fideicommissarius be entitled to the estate from the
incompatible with a fideicommissary substitution (it time the testator dies, since he is to inherit from the
certainly is incompatible with the idea of simple latter and not from the fiduciary. (Emphasis ours.)
substitution, where the heiress instituted does not
receive the inheritance). In fact the enjoyment of the It appears from this quotation that the heir instituted
inheritance is in conformity with the idea of or the fiduciary, as referred to in articles 783 of the
fideicommissary substitution, by virtue of which the Civil Code, is entitled to enjoy the inheritance. And it
heir instituted receives the inheritance and enjoys it, might here be observed, as a timely remark, that the
although at the same time he preserves it in order to fideicommissum arising from a fideicommissary
pass it on the second heir. On this point the substitution, which is of Roman origin, is not exactly
illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 equivalent to, nor may it be confused with, the
and 143, 5th ed.), says: English "trust."

Or, what amounts to the same thing, the It should also be noted that said clause IX vests in
fideicommissary substitution, as held in the the heiress only the right to enjoy but not the right to
Resolution of June 25, 1895, February 10, 1899, and dispose of the estate. It says, she may enjoy it, but
July 19, 1909, requires three things: does not say she may dispose of it. This is an
indication of the usufruct inherent in fideicommissary
1. A first heir called primarily to the enjoyment of the substitution.
estate.
Clause X expressly provides for the substitution. It is
2. An obligation clearly imposed upon him to true that it does not say whether the death of the
preserve and transmit to a third person the whole or heiress herein referred to is before or after that of the
testatrix; but from the whole context it appears that in the testatrix. That is, said clause anticipates the case
making the provisions contained in this clause X, the where the instituted heiress should die after the
testatrix had in mind a fideicommissary substitution, testatrix and after receiving and enjoying the
since she limits the transmission of her estate to the inheritance.
children of the heiress by this provision, "in such wise
that my estate shall never pass out of the hands of The foregoing leads us to the conclusion that all the
my heiress or her children in so far as it is legally requisites of a fideicommissary substitution,
possible." Here it clearly appears that the testatrix according to the quotation from Manresa above
tried to avoid the possibility that the substitution inserted, are present in the case of substitution now
might later be legally declared null for transcending under consideration, to wit:
the limits fixed by article 781 of the Civil Code which
prescribed that fideicommissary substitutions shall be 1. At first heir primarily called to the enjoyment of the
valid "provided they do not go beyond the second estate. In this case the plaintiff was instituted an
degree." heiress, called to the enjoyment of the estate,
according to clause IX of the will.
Another clear and outstanding indication of
fideicommissary substitution in clause X is the 2. An obligation clearly imposed upon the heir to
provision that the whole estate shall pass unimpaired preserve and transmit to a third person the whole or
to the heiress's children, that is to say the heiress is a part of the estate. Such an obligation is imposed in
required to preserve the whole estate, without clause X which provides that the "whole estate shall
diminution, in order to pass it on in due time to the pass unimpaired to her (heiress's) surviving
fideicommissary heirs. This provision complies with children;" thus, instead of leaving the heiress at
another of the requisites of fideicommissary liberty to dispose of the estate by will, or of leaving
substitution according to our quotation from Manresa the law to take its course in case she dies intestate,
inserted above. said clause not only disposes of the estate in favor of
the heiress instituted, but also provides for the
Lastly, clause XI more clearly indicates the idea of disposition thereof in case she should die after the
fideicommissary substitution, when a provision is testatrix.
therein made in the event the heiress should die after
3. A second heir. Such are the children of the heiress against the appellant, Mariano Garchitorena. So
instituted, who are referred to as such second heirs ordered.
both in clause X and in clause XI.
Johnson, Malcolm, Villamor, Ostrand, Johns and
Finally, the requisite added by the decision of Villa-Real, JJ., concur. Street, J., reserves his vote.
November 18, 1918, to wit, that the  
fideicommissarius or second heir should be entitled
to the estate from the time of the testator's death,
which in the instant case, is, rather than a requisite, a
necessary consequence derived from the nature of
the fideicommissary substitution, in which the second
heir does not inherit from the heir first instituted, but
from the testator.

By virtue of this consequence, the inheritance in

question does not belong to the heiress instituted,
the plaintiff herein, as her absolute property, but to
her children, from the moment of the death of the
testatrix, Ana Maria Alcantara.

Therefore, said inheritance, of which the amount

referred to at the beginning, which is on deposit with
the association known as La Urbana in the plaintiff's
name, is a part, does not belong to her nor can it be
subject to the execution of the judgment against
Joaquin Perez, who is not one of the fideicommissary
heirs.

The judgment appealed from is affirmed, with costs