SUCCESSION | Based on the book of Paras and Sigma TSN

Substitution of Heirs I-Intestate

Art. 857. Substitution is the appointment of another Art. 858. Substitution of heirs may be:
heir so that he may enter into the inheritance in (1) Simple or common;
default of the heir originally instituted. (2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.
Substitution- conditional institution of heir; the
appointment of another heir in default of or after the
heir is originally instituted. Simple or common- Article 859
Brief or compendious- Article 860 Direct
2 Concepts of Substitution Reciprocal- Article 861 substitutions
1. Direct Substitution- only one inherit. So if the Fideicommissary- Article 863 -
original heir defaults then the substitutes Indirect substitution
inherit. (defined in Art. 857)
2. Indirect Substitution- the inheritance is
assumed by 2 heirs so one after the other. Art. 859. The testator may designate one or more
One inherits after the other. This is covered persons to substitute the heir or heirs instituted in
by the rule on fideicommissary substitution case such heir or heirs should die before him, or
under Article 863. should not wish, or should be incapacitated to accept
the inheritance.
The testator may either:
(1) Provide for the designation of another heir to A simple substitution, without a statement of
whom the property shall pass in case the the cases to which it refers, shall comprise the three
original heir should die before him/her, mentioned in the preceding paragraph, unless the
renounce the inheritance or be incapacitated testator has otherwise provided.
to inherit, as in a simple substitution; or
(2) Leave his/her property to one person with Simple or Common Substitution- express substation
the express charge that it be transmitted in case of:
subsequently to another or others, as in a 1) Predecease
fideicommissary substitution. 2) Renunciation or repudiation
3) Incapacity
Purpose of Substitution:
1. In order to prevent intestate succession. - The original heir should die before the
2. To prevent the descent of the estate of the testator or renounce the inheritance or
testator to whom the testator does not want should be incapacitated to accept the
to succeed him in his property whether by inheritance.
right of representation, or by right of - Unless the testator has otherwise provided-
accretion or by right of intestate succession. the testator here is not precluded from
3. To allow the testator greater freedom to help providing other causes.
or reward those who by reasons of services
rendered are more worthy of his affection Art. 860. Two or more persons may be substituted for
and deserving of his bounty than intestate one, and one person for two or more heirs.
heirs.
4. To enable the testator to make arrangements Brief and Compendious Substitution
for his succession in the manner most
- 2 or more persons may be substituted for
convenient for him. So it is the testator who
one.
will decide who will inherit and in what order.
5. To realize some honorable purpose of the
testator like the maintenance of the property B
A
within his property because in substitution C
the testator to some extent may preserve the D
property within the confines of his own
Compendious Substitution
immediate family and prevent the estate from
- 2 or more heirs are instituted and one is
descending to the other legal heirs like the
appointed as substitute for all heirs originally
brothers or sisters.
substituted.
B
Order of Preference (ISRAI)
C
I-Institution
D
A
S-Substitution
R-Representation
A-Accretion

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 SUCCESSION | Based on the book of Paras and Sigma TSN
Art. 861. If heirs instituted in unequal shares should
be reciprocally substituted, the substitute shall acquire
the share of the heir who dies, renounces, or is
incapacitated, unless it appears that the intention of
the testator was otherwise. If there are more than one
substitute, they shall have the same share in the
substitution as in the institution.
Reciprocal Substitution- all the heirs are constituted
as the substitutes of one another.
Meaning of Second Sentence
“if there are more than one substitute, they shall have
the same share in the substitution as in the
institution.” Same share should be interpreted to
mean same proportionate share.
Art. 862 The substitute shall be subject to the same
charges and conditions imposed upon instituted heir,
unless the testator has expressly provided the
contrary, or the charges or conditions are personally
applicable only to the heir instituted.
GR: If the substitute inherits, he must fulfill the
conditions imposed on the original heir.
XPNS:
(1) If the testator has expressly provided the contrary
(this must appear in the will).
(2) if the charges or conditions are personally
applicable, only to the heir instituted. (This occurs
when the personal qualifications of the original heir
had been considered by the testator in designating
said original heir.)
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 the 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
the time of the death of the testator.
Fideicommissary Substitution (Indirect substitution)-
that by virtue of which a testator institutes a 1 st heir,
and charges him to preserve and transmit the whole
or part of the inheritance
SIMPLE FIDEICOMMISSARY
SUBSTITUTION SUBSTITUTION
Only ONE of the heir BOTH inherit
inherits
PURPOSE
- For the prosperity and prestige of the family,
bearing in mind the lack of intelligence,
weakness of character, and vanity and
prodigality of the descendants to whom the
property may go.
DISADVANTAGES
(a) The free circulation of property is somewhat
curtailed, resulting in suspended ownership.
(b) The property may be locked up or entailed in a
family for a long period.
(c) It is opposed to the liberty of property and to the
principle that the making of a will is a strictly personal
act.
(d) The original purpose is feudalistic and is not in
accord with the modern concept of ownership which
puts the welfare of society over and above that of a
particular family.
Requisites and Limitations of the Fideicommissary
Substitution
(a) There must be a FIRST HEIR called primarily or
preferentially to the enjoyment of the property.
(b) There must be an obligation clearly imposed upon
him to preserve and transmit to a third person the
whole or part of the inheritance (part only if the
substitution refers merely to that part).
(c) A SECOND HEIR.
(d) The 1st and 2nd heirs must only be one degree
apart.
(e) Both heirs must be alive (or at least conceived) at
the time of the testator’s death.
(f) Must be made in an EXPRESS manner.
(g) Must not burden the legitime. (This is true for all
kinds of substitutions, for after all, the compulsory
heirs are entitled to the legitime as of RIGHT.)
(h) Must not be conditional.
First Requisite  FIRST HEIR
(a) The 1st heir must himself be capacitated and must
accept the inheritance if he wants to enjoy the same.
(b) He is not mere trustee.
(c) He is not mere agent or delivery boy who is
obliged to do nothing but deliver the property.
(d) He is indeed almost like a usufructuary, with the
right to enjoy the property.
(e) Like a usufructuary, he is implicitly bound to make
an inventory to know what the properties he must
preserve and transmit.
(f) But not require to furnish a bond.
Second Requisite TO PRESERVE AND TRANSMIT
(a) The obligation to preserve and transmit must be
given clearly and expressly.
(b) No fideicommissary substitution if mere
suggestion, advice or request.
(c) If the obligation is conditional, there is no
fideicommissary substitution.
(d) No fideicommissary substitution if there is failure to
express the obligation to preserve.
Third Requisite SECOND HEIR
(a) He is known as fideicommissary and is sort of
naked owner.
(b) One degree refers to a generation and therefore to
a natural person.
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 SUCCESSION | Based on the book of Paras and Sigma TSN
(c) Since the 2nd heir inherits not from the 1st heir but
from the testator, said 2 nd heir must be capacitated to
succeed not the 1st heir but the testator.
Fourth Requisite THE FIRST AND THE SECOND
HEIRS MUST BE ONE DEGREE APART.
Meaning of one degree- generation
Fifth Requisite BOTH THE FIRST AND THE
SECOND HEIRS MUST BE ALIVE (OR AT LEAST
CONCEIVED) AT THE TIME OF THE TESTATOR’S
DEATH
(a) Reason for the requirement: To reduce as much
as possible the number of years the property will have
to be entailed.
Distinctions Between The Fideicomiso, Substitucion,
Fideicomisoria and Mayorazco
(a) Fideicomiso- only one heir.
(b) Fideicomisoria- the outgrowth of the fideicomiso
and the various kinds of simple substitutions. There
are two heirs here, the first not being a mere agent.
(c) The mayorazco- simply a form of the
fideicommissary substitution with this featurethat
the property or the greater portion of it was handed
down from generation to generation through the
oldest child.
Art 864. A fideicommissary substitution can never
burden the legitime.
REASON
The legitime is expressly reserved for the compulsory
heirs. As a matter of fact, no substitution of any kind
can be imposed on the legitime.
Art. 865 Every fideicommissary substitution must be
expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the
inheritance to the second heir, without other
deductions than those which arise from legitimate
expenses, credits and improvements save in the case
where he testator has provided otherwise.
Fideicommissary Substitution Must be Made
Expressly
“fideicommissary substitution” need not be given; it is
sufficient that there be the absolute obligation of
delivering (and therefore of preserving) the property to
the second heir.
When the Inheritance is Supposed to be Delivered to
the Second Heir
- In the absence of a period fixed by the
testator, the inheritance must be delivered at
death of the first heir.
Extent of the Inheritance to be Delivered
- This depends on the intent of the testator. It
may be that he ordered a fideicommissary
substitution only on 1/3 of the property.
Unless specified, it is understood that the
whole property received by a 1 st heir in a
fideicommissary substitution must be
delivered.
Effect of Alienation of Reservable Property
- One implication from the duty “to deliver” is
that the 1st heir must not ordinarily alienate
the property to a stranger.
Deductions to be Made in Case of Transmittal to
Second Heir
(a) Legitimate expenses- like necessary repairs for
the preservation of the property; and the increase in
value occasioned by useful improvements.
(b) Legitimate credits
(c) Legitimate improvements
Art. 866. The second heir shall acquire a right to the
succession from the time of the testator’s death, even
though he should die before the fiduciary. The right of
the second heir shall pass to his heirs.
Rules if Second Heir Predeceases the Fiduciary (not
the Testator)
(a) The 2nd heir inherits, not from the 1 st heir, but from
the testator.
(b) This Article applies only when all the essential
requisites for a fideicommissary substitution are
present, particularly the requirement that both heirs
must be alive when the testator dies. In other words,
while it is permissible for the 2 nd heir to predecease
the 1st heir, neither must predecease the testator.
Art. 867. The following shall not take effect:
(1) Fideicommissary substitutions which are not made
in an express manner, either by giving them this
name, or imposing upon the fiduciary the absolute
obligation to deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the limit
fixed in Article 863;
(3) Those which impose upon the heir the charge of
paying to various persons successively, beyond the
limit prescribed in Art. 863, a certain income or
pension;
(4) Those which leave to a person the whole or part of
the hereditary property in order that he may apply or
invest the same according to secret instructions
communicated to him by the testator.
Testamentary Dispositions Akin to Fideicommissary
Substitutions
Purpose- to prevent conditions which would entail the
property for a long time and result in a case worse
than the fideicommissary substitution.
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 SUCCESSION | Based on the book of Paras and Sigma TSN
Prohibition to Alienate
(a) Perpetual prohibition to alienate
(b) Temporary prohibition to alienate
Payment of Income or Pensions
- “successively”
Effect of Secret Instructions
- The law says that dispositions which leave to
a person the whole or part of the hereditary
property in order that he may apply or invest
the same according to secret instructions
communicated to him by the testator, are of
no effect.
Art. 868. The nullity of the fideicommissary
substitution does not prejudice the validity of the
institution of the heirs first designated; the
fideicommissary clause shall simply be considered not
written.
Effect of Nullity of the Fideicommissary Substitution
- Simply considered not written
Art. 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, and to
another the usufruct, shall be valid. If he gives the
usufruct to various persons, not simultaneously, but
successively, the provisions of Art. 863 shall apply.
Grant of a Usufruct
- The testator can give the naked or legal
ownership to one person and the usufruct to
another. It is valid. It can also be valid that
the usufruct will be given to several persons
successively. As long as it is not beyond the
limit provided for by Art. 863. But again, if the
usufruct is simultaneously given that it is vali.
The one-degree limit Art. 863 will not apply.
The reason why the law prohibits going
beyond one degree is to avoid the prolong
entailment of the property.
Art. 870. The dispositions of the testator declaring all
or part of the estate inalienable for more than twenty
years are void.
Prohibition to Alienate for More than 20 Years Void
(a) To give more impetus to the socialization of the
ownership of property, and to prevent the
perpetuation of large holdings which give rise to
agrarian troubles.
If 20 years- valid
If more than 20 years- the excess is not valid
If it is silent- understood to be 20 years; same is true
for “forever”
“as long as he lives” – good for 20 years
If he dies sooner- the prohibition is ended
If there is fideicommissary substitution- Art. 867 shall
govern.
CONDITIONAL TESTAMENTARY DISPOSITIONS
AND TESTAMENTARY DISPOSITIONS WITH A
TERM
Art. 871. The institution of an heir may be made
conditionally, or for a certain purpose or cause.
Various Kinds of Institutions
The institution of heir may be made:
(a) with a condition.
(b) with a term.
(c) for a certain purpose or cause (modal institution)
Definitions
(a) Condition- future or uncertain event, or a past
event unknown to the parties, upon which the
performance of an obligation depends; it is “every fact
or event which is future or uncertain to whose
realization a judicial act is subordinated.”
(b) Term- the day or time when an obligation either
becomes demandable or terminates. A day certain is
understood to be that which must necessarily come,
although it may not be known when. As applied to
succession, it is the day or time when the effect of an
institution of the heir is to begin or cease.
(c) Modal institution
1) when the institution of an heir is made, for a certain
purpose or cause.
2) The statement of the object of the institution or the
application of the property left by the testator or the
charge imposed upon him.
3) “Modo” also signifies every onerous disposition by
which the obligor imposed upon another and thus
limited his promise, such as demanding a loan in
exchange for what the other person receive.
Conditions Not to be Presumed
Conditions to affect the disposition must appear in the
language of the will and cannot be presumed. Parol
evidence to prove the existence of oral or other
conditions cannot be allowed. However, if the
condition appears in a document incorporated by
reference into the will, it is proper to consider said
condition.
Art. 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so,
the same shall be considered as not imposed.
No burden, no substitution, no condition, no charge
should be imposed upon the legitime because the
legitime should not be impaired. If there is such
burden, substitution, condition or charge, then these
burden, substitution, condition, or charge are
considered as not written.
There are only 2 recognized charges or burdens
allowed by law to be imposed on the legitime:
1. Reserva troncal
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 SUCCESSION | Based on the book of Paras and Sigma TSN

2. The law on partition, the testator can prohibit the
partition of his estate for 20 years even if that pertains
to the legitime.
Art. 873. Impossible conditions and those contrary to
law or good customs shall be considered as not
imposed and shall in no manner prejudice the heir,
even if the testator should otherwise provide.
Effect of Impossible or Illegal Conditions
- Void and unwritten but the institution and
testamentary disposition will be considered
as valid.
A Will Cannot Go Against the Law
- It may be safely asserted that no respectable
authority can be found which holds that the
will of the testator may override positive
provisions of law and imperative
requirements of public policy.
- This relative prohibition is valid,
unless it becomes so onerous or
burdensome that the “relative” prohibition
really amounts to an absolute one.
NOTE: A stopping of usufruct, allowance or personal
prestation the moment the heir, devisee, or legatee
marries or remarries  is justified since the law
allows their giving for the time during which the
person remains unmarried or in widowhood.
Condition to Marry a Particular Person, or at a
Particular Place or Time
- Valid, by implication and must be complied
with unless impossible or illegal.
Art. 875. Any disposition made upon the condition
that the heir shall make some provision in his will in
favor of the testator or of any other person shall be
void.

Vague Wording of Conditions Disposition Captatoria

- The condition will be regarded as an - This is prohibited because it tends to make
impossible condition and should therefore be the making of the will a contractual act.
disregarded.
Art. 876. Any purely potestative condition imposed
Time to be Considered upon an heir must be fulfilled by him as soon as he
- The time when the condition is supposed to learns of the testator’s death.
be fulfilled.
This rule shall not apply when the condition,
Art. 874. An absolute condition not to contract a first already complied with, cannot be fulfilled again.
or subsequent marriage shall be considered as not
written unless such condition has been imposed on
the widow or widower by the deceased spouse, or by
latter’s ascendants or descendants.

Nevertheless, the right of usufruct, or an

allowance or some personal prestation may be
devised or bequeathed to any person for the time
during which or she should remain unmarried or in
widowhood.

Prohibition to Marry/Re-marry
(a) Absolute Prohibition
1) to contract a 1st marriage
2) to remarry

GR: void because it is contrary to morality and pubic

policy.

XPNs: valid 
(a) when imposed on the widow or widower by the
deceased spouse.
(b) when imposed on the widow or widower by the
ascendants or descendants of the deceased spouse
(not the ascendants or descendants of the widow or
widower.)

(b) Relative Prohibition

1) to contract a 1st marriage
2) to remarry

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