Case Digest: Ramirez vs. Ramirez, G.R. No. L-27952, February 15, 1982

Succession | Arts. 859, 863

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.

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.

Ponente:
Fernan, J.:

Facts:

In 1964, Jose Eugenio Ramirez, a Filipino national, died in Spain with only his widow, Marcelle Demoron de Ramirez, as compulsory heir.

The beneficiaries of his will include his widow Marcelle, a French who lives in Paris; his companion Wanda de Wrobleski, an Austrian who lives in Spain; and his two grandnephews Roberto and Jorge Ramirez.

The translated testamentary dispositions are as follows:

A.—In bare ownership, to Mr. Roberto and Mr. Jorge Ramirez, both minors, residing at 'Alright, No. 1818, Malate, Manila, I.F., sons of his nephew Mr. Jose Ma. Ramirez, with substitution in favor of their respective descendants, and, failing them, reciprocal substitution between both.

The preceding bequest in bare ownership of the undivided participation in the Santa Cruz Building estate is ordered by the testator in favor of the named legatees, considering that said property was the creation of the dear father of the grantor and because they are continuers of the Ramirez surname.

B.—And in usufruct, as follows:

a. Regarding one-third, in favor of the testator's wife, Mrs. Marcelle Ramirez, residing at IE PECO, General Gallieni Street No. 33, Seine, France, with substitution in favor of Mrs. Wanda de Wrobleski, from Palma de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—And regarding the remaining two-thirds, in favor of the named Mrs. Wanda de Nrobleski, with substitution as follows:

Regarding half of these two-thirds, in favor of Mr. Juan Pablo Jankowski, from Son Rapina Palma de Mallorca; and regarding the remaining half, in favor of his nephew, Mr. Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.

Despite the previously ordered fideicommissary substitutions, the usufructuaries named together with the bare owners may, at any time, sell to a third party the assets delegated without any intervention from the fideicommissary holders.

Summary:

Bare Ownership

• Roberto and Jorge Ramirez
• Substitution clause: In favor of their respective descendants and, if absent, reciprocal substitution between Roberto and Jorge

Usufruct

• One-third to testator's wife, Marcelle Ramirez
• Substitution clause: In favor of Wanda de Wrobleski
• Two-thirds to Wanda de Nrobleski
• Substitution clause: Half in favor of Juan Pablo Jankowski and remaining half to the testator's nephew, Horace V. Ramirez

CFI-Manila: Admitted his will to probate and appointed Maria Luisa Palacios as administratrix of the estate.

Maria Luisa Palacios submitted an inventory of the estate and a project of partition dividing the property of the deceased into two parts:

• One part shall go to the widow in satisfaction of her legitime; 
• The other part or "free portion" shall go to Jorge and Roberto Ramirez.
• 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.

CFI-Manila: Approved the project of partition.

Issues:

1. WoN the one-third usufruct over the free portion in favor of the widow is justifiable. NO
2. WoN 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. NO
3. WoN 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. YES
4. WoN 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. NO

Held:

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 (with substitution in favor of their respective descendants, and, failing them, with reciprocal substitution between both).

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.