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.

Ignacio R. Ortigas for appellee.

Messrs. Luna, Parugganan, Sison & Ongsiako for oppositor-appellants.
Messrs. Gamboa & Hofilea for movant.
Messrs. Quasha, Asperilla, Zafra, Tayag & Archeta for oppositor M. Vda. de
Ramirez.
SYNOPSIS
Jose Eugenio Ramirez, a Filipino national, died in Spain with only his widow as
compulsory heir. His will was admitted to probate by the Court of First Instance of
Manila, Branch X. The administratrix of the estate submitted a project of partition
giving one part of the estate to the widow "en pleno dominio'' in satisfaction of her
legitime while the other part of the "free portion" to his two grandnephews Roberto
and Jorge Ramirez, as the oppositors-appellants. Furthermore, one third 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 Wrobleski. Jorge and Roberto Ramirez opposed
the project of partition as well as the substitutions provided by the testator as to the
usufructs of the widow and of Wanda. Nonetheless, the lower court approved the
project of partition in its order dated May 3, 1967. Jorge and Roberto appealed.
The Supreme Court upheld the vulgar substitution of Wanda's usufruct despite her
having survived the testator as said substitution under Art 859 of the Civil Code
includes not only death but also refusal or incapacity to accept the inheritance but
disallowed the fideicommissary aspect of the same as the substitutes are not related
to the heir as required by Art. 863 of the said Code. The Court further ruled that: (a)
the widow who is entitled to one-half of the estate "en pleno dominio" as her
legitime is not entitled to the one third usufruct over the free portion, hence the
question on its substitution has become moot and (b) that a usufruct in favor of an
alien, albeit a real right does not vest title to the land in the usufructuary and
therefore not contrary to the Constitution.
Order modified.
SYLLABUS

1. CIVIL LAW; TESTIMENTARY SUCCESSION; WILLS; WHEN LEGITIME IS MORE

THAN TESTATOR'S DISPOSITION; EFFECT. The widow who is entitled to one-half
of the estate "en pleno dominio" as her legitime which is more than what she is
given under the will is not entitled to the one third usufruct over the free portions
which is an additional share in the estate that will run counter to the testator's
intention.
2. ID.: ID.; ID.; SUBSTITUTION; DEFINITION. "Substitution is the appointment of
another heir so that he may enter into the inheritance in default of the heir
originally instituted" (Art. 857, Civil Code).
3. ID.; ID.; ID.; ID.; KINDS. There are several kinds of substitutions, namely:
simple or common, brief or compendious, reciprocal, and deicommissary (Art. 858,
Civil Code). According to Tolentino, Although the Code enumerates four classes,
there are really two principal classes of substitutions: the simple and the
fideicommissary. The others are merely variations of these two.'' (III Civil Code,
p.185 [1973]). The simple or vulgar is that provided in Art. 859 of the Civil Code
while the fideicommissary substitution is described in Art. 863 of the same Code.
4. ID.; ID.; ID.; ID.; VULGAR SUBSTITUTION; COVERAGE. Vulgar substitution is
valid although the heir survived the testator or stated dierently did not predecease
the testator because dying before the testator is not the only case for vulgar
substitution. It also includes refusal or incapacity to accept the inheritance as
provided in Art. 859 of the Civil Code.
5. ID.; ID.; ID.; ID.; FIDEICOMMISSARY SUBSTITUTION; DEGREE OF RELATIONSHIP
REQUIRED; NOT PRESENT IN CASE AT BAR. Art. 863 of the Civil Code validates a
deicommissary substitution "provided such substitution does not go beyond one
degree from the heir originally instituted.'' Hence in the case at bar, appellants are
correct in their claim that the substitution is void because the substitutes are not
related to the heir originally instituted.
6. ID.; ID.; ID.; I D.; MEANING OF "ONE DEGREE" EXPLAINED. "Scaevola, Maura,
and Traviesas construe 'degree' as designation, substitution, or transmission. The
Supreme Court of Spain has decidedly adopted this construction. From this point of
view, there can be only one transmission or substitution, and the substitute need
not be related to the rst heir. Manresa, Morell, and Sanchez Roman however,
construe the word 'degree' as generation, and the present Code 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 rst heir. From this, it follows that the deicommissary can
only be either a child or a parent of the rst heir. These are the only relatives who
are one generation or degree from the duciary." (Tolentino, I I I Civil Code pp. 193194 [1973]).
7. ID.; ID.; ID.; ID.; FIDEICOMMISSARY SUBSTITUTION; OBLIGATION OF FIDUCIARY
TO DELIVER THE INHERITANCE TO THE SECOND HEIR. Fideicommissary
substitution is void where there is no absolute duty imposed on the rst heir to
transmit the usufruct to the substitutes as required by Arts. 865 and 857 of the Civil

Code but in fact, the appellee admits "that the testator contradicts the
establishment of a deicommissary substitution when he permits the properties
subject of the usufruct to be sold upon mutual agreement of the usufructuaries and
the naked owners."
8. CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES; PROHIBITION AGAINST
ACQUISITION OF LANDS BY ALIENS; DOES NOT COVER USUFRUCT.
Notwithstanding 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, the usufruct in favor of an alien
is upheld, because the same, albeit a real right, does not vest title to land in the
usufructuary and it is the vesting of title to land in favor of aliens which is
proscribed by the Constitution.

DECISION

ABAD SANTOS, J :
p

The main issue in this appeal is the manner of partitioning the testate estate of Jose
Eugenio Ramirez among the principal beneciaries, 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.
llcd

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) pro-indivisa de un terreno,
con su mejoras y edificaciones, situado en la
Escolta, Manila P500,000.00
Una sexta parte (1/6) pro-indivisa de dos parcelas
de terreno situadas en Antipolo, Rizal 658.34
Cuatrocientos noventa y un (491) acciones de la 'Central
Azucarera de la Carlota' a P17.00 por accion 8,347.00

Diez mil ochocientos seiz (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 Pilipinas, garantizada
con prenda de las acciones de La Carlota P5,000.00

VALOR LIQUIDO P507,976.97"

The testamentary dispositions are as follows:

"A. En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambos menores
de edad, residentes en Manila, I. F., calle Wright, 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
reciproca entre ambos.
"El precedente legado en nuda propiedad de la participacion indivisa de la
nca 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 deicomisaria a favor de Da. Wanda
de Wrobleski, de Palma de Mallorca, Son Rapia, Avenida de los Reyes 13,
b. Y en cuanto a las dos terceras partes restantes, a favor de la
nombrado Da. Wanda de Wrobleski, con sustitucion vulgar y deicomisaria,
a saber:
"En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan
Pablo Jankowski, de Son Rapia, Palma de Mallorca; y en cuanto 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 fideicomisarias precedentemente ordinadas, las
usufructuarias nombradas conjuntamente con los nudo propietarios,
podran en cualquier momento vender a tercero los bienes objeto delegado,
sin intervencion alguna de los titulares fideicomisarios."

On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the
widow "en pleno dominio" in satisfaction of her legitime; the other part or "free
portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore,
one third (1/3) of the free portion is charged with the widow's usufruct and the

remaining two-third (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the
provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the
widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez, with
respect to Wanda's usufruct are invalid because of the rst heirs (Marcelle and
Wanda) survived the testator; (b) that the provisions for deicommissary
substitutions are also invalid because the rst heirs are not related to the second
heirs or substitutes within the rst degree, as provided in Article 863 of the Civil
Code; (c) that the grant of a usufruct over real property in the Philippines in favor of
Wanda de Wrobleski, who is an alien, violates Section 5, Article XIII of the Philippine
Constitution; and that (d) the proposed partition of the testator's interest in the
Santa Cruz (Escolta) Building between the widow Marcelle, and the appellants,
violates the testator's express will to give this property to them. Nonetheless, the
lower court approved the project of partition in its order dated May 3, 1967. It is this
order which Jorge and Roberto have appealed to this Court.
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).
cdrep

It is the one-third usufruct over the free portion which the appellants question and
justiably 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 appointment of another heir so
that he may enter into the inheritance in default of the heir originally instituted."
(Art. 857, Civil Code.) And that there are several kinds of substitutions, namely:
simple or common, brief or compendious, reciprocal, and deicommissary. (Art. 858,
Civil Code.) According to Tolentino, "Although the Code enumerates four classes,
there are really only two principal classes of substitutions: the simple and the
fideicommissary. The others are merely variations of these two." (III Civil Code, p.
185 [1973]).

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
"ART. 859. The testator may designate one or more persons to substitute
the heir or heirs instituted in case such heir or heirs should die before him,
or should not wish, or should be incapacitated to accept the inheritance.
"A simple substitution, without a statement of the cases to which it refers,
shall comprise the three mentioned in the preceding paragraph, unless the
testator has otherwise provided."

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

"ART. 863. A deicommissary substitution by virtue of which the duciary or
rst 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 eect, provided such substitution does not go beyond one degree
from the heir originally instituted, and provided further that the duciary 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 substitucion vulgar
reciproca entre ambos." The appellants do not question the legality of the
substitution so provided.
The appellants question the "sustitucion vulgar y deicomisaria 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 deicomisaria" in connection
with Wanda's usufruct over two-thirds of the estate in favor of Juan Pablo Jankowski
and Horace V. Ramirez.
They allege that the substitution in its vulgar aspect is void because Wanda survived
the testator or stated dierently 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 deicommissary 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
deicommissary substitution "provided such substitution does not go beyond one
degree from the heir originally instituted."
What is meant by "one degree" from the rst 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
transmission or substitution, and the substitute need not be related to the
first heir. Manresa, Morell, and Sanchez Roman, however, construe the word
'degree' as generation, and the present Code has obviously followed this
interpretation, by providing that the substitution shall not go beyond one
degree 'from the heir originally instituted.' The Code thus clearly indicates
that the second heir must be related to and be one generation from the rst
heir.
"From this, it follows that the deicommissary can only be either a child or a
parent of the rst 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 deicommissary
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 qualied 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.
LexLib

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.