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 & Hofileña 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
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 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 fideicommissary (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 differently 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
fideicommissary 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 first
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 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." (Tolentino, I I I Civil
Code pp. 193-194 [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 first 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 fideicommissary 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
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 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 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. 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.
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 "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 Rapiña, 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 fideicomisaria, a saber: —

"En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo
Jankowski, de Son Rapiña, 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 first heirs (Marcelle and Wanda) survived the
testator; (b) that the provisions for fideicommissary substitutions are also invalid because
the first heirs are not related to the second heirs or substitutes within the first degree, as
provided in Article 863 of the Civil Code; (c) that the grant of a usufruct over real property
in the Philippines in favor of Wanda de Wrobleski, who is an alien, violates Section 5, Article
XIII of the Philippine Constitution; and that (d) the proposed partition of the testator's
interest in the Santa Cruz (Escolta) Building between the widow Marcelle, and the
appellants, violates the testator's express will to give this property to them. Nonetheless,
the lower court approved the project of partition in its order dated May 3, 1967. It is this
order which Jorge and Roberto have appealed to this Court.
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
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 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
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 appointment of another heir so that he
may enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil
Code.) And that there are several kinds of substitutions, namely: simple or common, brief
or compendious, reciprocal, and fideicommissary. (Art. 858, Civil Code.) According to
Tolentino, "Although the Code enumerates four classes, there are really only two principal
classes of substitutions: the simple and the fideicommissary. The others are merely
variations of these two." (III Civil Code, p. 185 [1973]).
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
"ART. 859. The testator may designate one or more persons to substitute the heir
or heirs instituted in case such heir or heirs should die before him, or should not
wish, or should be incapacitated to accept the inheritance.

"A simple substitution, without a statement of the cases to which it refers, shall
comprise the three mentioned in the preceding paragraph, unless the testator has
otherwise provided."

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

"ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first
heir instituted is entrusted with the obligation to preserve and to transmit to a
second heir the whole or part of inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one degree from the heir originally
instituted, and provided further that the fiduciary or first heir and the second heir
are living at time of the death of the testator."

It will be noted that the testator provided for a vulgar substitution in respect of the
legacies of Roberto and Jorge Ramirez, the appellants, 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 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.

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 They allege that the substitution in its vulgar aspect is void because Wanda survived the
testator or stated differently because she did not predecease the testator. But dying
before the testator is not the only case for vulgar substitution for it also includes refusal or
incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence,
the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in
their claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to
Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary
substitution "provided such substitution does not go beyond one degree from the heir
originally instituted."
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 transmission or
substitution, and the substitute need not be related to the first heir. Manresa,
Morell, and Sanchez Roman, however, construe the word 'degree' as generation,
and the present Code has obviously followed this interpretation, by providing that
the substitution shall not go beyond one degree 'from the heir originally
instituted.' The Code thus clearly indicates that the second heir must be related to
and be one generation from the first heir.

"From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one generation or
degree from the fiduciary." (Op. cit., pp. 193-194.).

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits
"that the testator contradicts the establishment of a fideicommissary substitution when he
permits the properties subject of the usufruct to be sold upon mutual agreement of the
usufructuaries and the naked owners." (Brief, p. 26).
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
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 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.

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