G.R. No.
L-1787             August 27, 1948 will void
Testacy of Sixto Lopez. JOSE S. LOPEZ,
petitioner-appellee, vs.AGUSTIN LIBORO,
oppositor-appellant.
FACTS:
In the Court of First Instance of Batangas the
appellant opposed unsuccessfully the probate of
what purports to be the last will and testament of Don
Sixto Lopez, who died at the age of 83 in Balayan,
Batangas, on March 3, 1947, almost six months after
the document in question was executed. To this
objection is added the alleged error of the court "in
allowing the petitioner to introduce evidence that the
will was written in a language known to the decedent
after petitioner rested his case and over the vigorous
objection of the oppositor.
The will in question comprises two pages, each of
which is written on one side of a separate sheet. The
first sheet is not paged either in letters or in Arabic
numerals. This, the appellant believes, is a fatal
defect
ISSUE:
1. WON the omission of page number will make the
WON the will was written in a language known to the
testator.
WON That his signature appearing in said will was a
forgery (using his thumbmark)
HELD:
1. NO. The purpose of the law in prescribing the
paging of wills is guard against fraud, and to afford
means of preventing the substitution or of defecting
the loss of any of its pages In the present case, the
omission to put a page number on the first sheet, if
that be necessary, is supplied by other forms of
identification more trustworthy than the conventional
numerical words or characters. The unnumbered
page is clearly identified as the first page by the
internal sense of its contents considered in relation to
the contents of the second page. By their meaning
and coherence, the first and second lines on the
second page are undeniably a continuation of the
last sentence of the testament, before the attestation
clause, which starts at the bottom of the preceding
page. Furthermore, the unnumbered page contains
the caption "TESTAMENTO," the invocation of the
Almighty, and a recital that the testator was in full use
of his testamentary faculty, — all of which, in the
logical order of sequence, precede the direction for
the disposition of the marker's property. Again, as
page two contains only the two lines above
mentioned, the attestation clause, the mark of the
testator and the signatures of the witnesses, the
other sheet can not by any possibility be taken for
other than page one.
2. No. The omission to present evidence on the
testator's knowledge of Spanish had not been
deliberate. It was due to a misapprehension or
oversight.
There is no statutory requirement that such
knowledge be expressly stated in the will itself. It is a
matter that may be established by proof aliunde. The
Court so impliedly which the probate of a will written
in Tagalog was ordered although it did not say that
the testator knew that idiom. In fact, there was not
even extraneous proof on the subject other than the
fact that the testator resided in a Tagalog region,
from which the court said "a presumption arises that
said Maria Tapia knew the Tagalog dialect.
3. No. The testator affixed his thumbmark to the
instrument instead of signing his name. The reason
for this was that the testator was suffering from
"partial paralysis." While another in testator's place
might have directed someone else to sign for him, as
appellant contends should have been done, there is
nothing curious or suspicious in the fact that the
testator chose the use of mark as the means of
authenticating his will. It was a matter of taste or
preference. Both ways are good. A statute requiring
a will to be "signed" is satisfied if the signature is
made by the testator's mark
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE
THE WILL OF RICARDO B. BONILLA deceased,
MARCELA RODELAS, petitioner-appellant, vs.
AMPARO ARANZA, ET AL., oppositors-appellees,
ATTY. LORENZO SUMULONG, intervenor.
 FACTS:
This case was certified to this Tribunal by the Court
of Appeals for final determination pursuant to Section
3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with
the Court of First Instance of Rizal for the probate of
the holographic will of Ricardo B. Bonilla and the
issuance of letters testamentary in her favor. The
petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla,
Wilferine Bonilla Treyes Expedita Bonilla Frias and
Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will
within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will
did not contain a disposition of property after death
and was not intended to take effect after death, and
therefore it was not a will
(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
Phil. 509; and
(4 ) The deceased did not leave any will, holographic
or otherwise, executed and attested as required by
law.
The appellees likewise moved for the consolidation
of the case with another case Sp. Proc. No, 8275).
Their motion was granted by the court in an order
dated April 4, 1977.
On November 13, 1978, following the consolidation
of the cases, the appellees moved again to dismiss
the petition for the probate of the will. They argued
that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to
dismiss was denied by the court in its order of
February 23, 1979.
The appellees then filed a motion for reconsideration
on the ground that the order was contrary to law and
settled pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an
opposition. On July 23, 1979, the court set aside its
order of February 23, 1979 and dismissed the
petition for the probate of the will of Ricardo B.
Bonilla. The court said:
... It is our considered opinion that once the original
copy of the holographic will is lost, a copy thereof
cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic
wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity
of said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25, 1962
while Ricardo B. Bonilla died on May 13, 1976. In
view of the lapse of more than 14 years from the time
of the execution of the will to the death of the
decedent, the fact that the original of the will could
not be located shows to our mind that the decedent
had discarded before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied.
Hence, an appeal to the Court of Appeals in which it
is contended that the dismissal of appellant's petition
is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the
case to this Court on the ground that the appeal does
not involve question of fact and alleged that the trial
court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT
A LOST HOLOGRAPHIC WILL MAY NOT BE
PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING
THAT THE DECEDENT HAS DISCARDED BEFORE
HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL.
The only question here is whether a holographic will
which was lost or cannot be found can be proved by
means of a photostatic copy. Pursuant to Article 811
of the Civil Code, probate of holographic wills is the
allowance of the will by the court after its due
execution has been proved. The probate may be
uncontested or not. If uncontested, at least one
Identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at
least three Identifying witnesses are required.
However, if the holographic will has been lost or
destroyed and no other copy is available, the will can
not be probated because the best and only evidence
is the handwriting of the testator in said will. It is
necessary that there be a comparison between
sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox
copy of the holographic will may be allowed because
comparison can be made with the standard writings
of the testator. In the case of Gam vs. Yap, 104
PHIL. 509, the Court ruled that "the execution and
the contents of a lost or destroyed holographic will
may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall
produce no effect. The law regards the document
itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it
may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by
other similar means, if any, whereby the authenticity
of the handwriting of the deceased may be exhibited
and tested before the probate court," Evidently, the
photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can
be determined by the probate court.
WHEREFORE, the order of the lower court dated
October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is
hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana,
Vasquez and Gutierrez, Jr., JJ., concur.
G.R. No. L-17091             September 30, 1963
IN THE MATTER OF THE ESTATE OF THE
DECEASED CHUNG LIU, NGO THE HUA,
petitioner-appellant, vs.CHUNG KIAT HUA, LILY
CHUNG CHO, BONIFACIO CHUNG SIONG PEK
and CHUNG KA BIO, oppositors-appellees, CHUNG
KIAT, KANG, oppositor-appellant, PHILIPPINE
TRUST COMPANY, special administrator.
Lorenzo Sumulong for petitioner-appellant. Zosimo
Rivas for oppositor-appellant Chung Kiat Kang.
Bienvenido A. Tan, Jr. for oppositor-appellee
Bonifacio Chung Siong Pek. Crispin D. Baizas for
other oppositors-appellees.
 
LABRADOR, J.:
          This is an appeal from an order of the Court of
First Instance of Rizal, Pasay City Branch, Hon.
Jesus Perez presiding, appointing Chung Kiat Hua
as administrator of the estate of the deceased Chung
Liu in Special proceeding No. 1552-P of said court.
          On December 7, 1957, Ngo The Hua, claiming
to be surviving spouse of the deceased Chung Liu,
filed a petition to be appointed administratrix of the
estate of aforementioned deceased. Her petition was
opposed Chung Kiat Hua, Lily Chung Cho, Bonifacio
Chung Sio Pek and Chung Ka Bio, all claiming to be
children of the deceased Chung Liu by his first wife,
Tan Hua. They claim that Ngo The Hua is morally
and physically unfit to execute the duties of the trust
as administratrix, and that she and the deceased
have secured an absolute divorce in Taiwan, both
being Chinese citizens, confirmed a legalized by the
Taipei District Court, Taipei, Taiwan August 25,
1955. In this same opposition they prayed the Chung
Kiat Hua, allegedly the eldest child of the deceased,
be appointed administrator instead. These oppositors
prayer was in turn opposed by Ngo The Hua who
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
opposition to the appointment of either Ngo The Hua
or Chung Kiat Hu on the ground that to be appointed
they must first prove their respective relationship to
the deceased Chung Li and prayed that he be
appointed administrator.
          The petition was heard and evidence
presented by both petitioner Ngo The Hua and the
oppositors Chung Kiat Hua, et al. When Chung Kiat
Kang's turn to present his evidence came, he
manifested, through his counsel, that he was waiving
his right to present evidence in so far as the
appointment of administrator of the estate is
concerned (t.s.n. pp. 3-6, hearing of July 3, 1958).
          On December 2, 1959, after a lengthy hearing,
the low court found that Ngo The Hua and the
deceased were validly divorced by the
aforementioned Taipei District Court, and that Chung
Kiat Hua, Lily Chung Cho, Bonifacio Chung Siong
Pek and Chung Kiat Bio are children of the
deceased. So it issued the order appointing Chung
Kiat Hua as administrator of the estate of Chung Liu.
          From this order, both the petitioner and Chung
Kiat Kang appealed. On May 30, 1961, however,
petitioner Ngo The Hua filed a petition to withdraw
her appeal stating that she had entered into an
amicable settlement with the oppositors-appellees.
Her petition was granted by this Court in a resolution
dated June 26, 1961.
          Hence only the appeal of oppositor Chung Kiat
Kang remains for the consideration of this Court.
          Appellant now contends that the lower court
erred in passing upon the validity of the divorce
obtained by the petitioner and the deceased and
upon the filiation of the oppositors-appellees, such
being a prejudgment "since it is well-settled that the
declaration of heirs shall only take place after all
debts, expenses and taxes have been paid" in
accordance with See. 1, Rule 91 of the Rules of
Court. The pertinent portion of the section cited by
appellant is as follows:.
          SECTION 1. When order for distribution of
residue made. — . . When the debts, funeral
charges, and expenses of administration, the
allowances to the widow and inheritance tax, if any,
chargeable to the estate in accordance with law,
have been paid, the court . . shall assign the residue
of the estate of the Persons entitled to the same . .
          No distribution shall be allowed until payment
of the obligations above-mentioned has been made
or provided for . . (Emphasis supplied).
          A cursory reading of the above-quoted section
discloses that what the court is enjoined from doing
is the assignment or distribution of the residue of the
deceased's estate before the above-mentioned
obligations chargeable to the estate are first paid.
Nowhere from said section may it be inferred that the
court cannot make a declaration of heirs prior to the
satisfaction of these obligations. It is to be noted,
however, that the court in making the appointment of
the administrator did not purport to make a
declaration of heirs.
          On the other hand, it is clear from the facts of
this case that is was deemed necessary by the lower
court to determine the relationship of the parties, as
advanced by petitioner and the oppositors-appellees,
to be able to appoint an administrator in accordance
with the order preference established in Section 5,
Rule 79 of the Rules of Court. Said section provides
that letters of administration shall be granted to the
surviving spouse the next of kin, or to any principal
creditor, in this order. Oppositors-appellees denied
petitioner Ngo The Hua's claim that she is the
surviving spouses of Chung Liu, and petitioner
likewise denied the oppositors-appellees' claim that
they are children of the deceased. Since these
applicants were asking for the letter of administration
on the theory that they are preferred according to
Section 5 Rule 79 because of their relationship to the
deceased Chu Liu, the lower court necessarily had to
pass first on the truth of their respective claims of
relationship to be able to appoint an administrator in
accordance with the aforementioned order of
preference.
          Let it be made clear, that what the lower court
actual decided and what we also decide is the
relationships between the deceased and the parties
of claiming the right to be appointed his
administrator, to determine who among them is
entitled to the administration, not who are his heirs
who are entitled to share in his estate. This issue of
heirship is one to be determined in the decree of
distribution, and the findings of the court in the case
at bar on the relationship of the parties is not a final
determination of such relationships as a basis of
distribution.
1awphîl.nèt
          Having resolved the issue raised, it is
unnecessary to rule on the other questions raised by
the appellant Chun Kiat Rang. It is well-settled that
for a person to be able to intervene in an
administration proceeding concerning the estate of a
deceased, it is necessary for him to have interest in
such estate (Sec. 4, Rule 80, Rules of Court Moran,
Comments on the Rules of Court, Vol. II, 195 ed. P.
382). An interested party has been defined in this
connection as one who would be benefited by the
estate such as an heir, or one who has a certain
claim against the estate, such as a creditor
(Saguinsin vs. Lindayag, et al., G.R. No. L-17759,
Dee. 17, 1962; Intestate Estate Julio Magbanwa, 40
O.G. 1171; Williams vs. Williams, 11 Ga. 1006, cited
in Francisco, Rules of Court, Vol. IV, 195 ed., p.
411). Appellant Chung Kiat Kang does not claim of to
be a creditor of Chung Liu's estate. Neither is he an
heir in accordance with the Civil Code of the
Republic of China (Exh. 28 of Chung Kiat Hua), the
law that applies in this case, Chung Liu being a
Chinese citizen (Art. 16, New Civil Code). The
appellant not having any interest in Chung Liu's
estate, either as heir or creditor, he cannot be
appointed as co-administrator of the estate, as he
now prays.
          WHEREFORE, the order appealed from is
hereby affirmed, with costs against appellants. So
ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Barrera,
Paredes, Dizon, Regala and Makalintal, JJ., concur.
Concepcion and Reyes, J.B.L., JJ., took no part.
G.R. No. L-31703             February 13, 1930
CARMEN G. DE PEREZ, trustee of the estate of
Ana Maria Alcantara, plaintiff-appellee, vs.
MARIANO GARCHITORENA, and JOSE
CASIMIRO, Sheriff of the Court of First Instance
of Manila, defendants-appellants.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon
for appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the
plaintiff's name with the association known as La
Urbana in Manila, as the final payment of the
liquidated credit of Ana Maria Alcantara, deceased,
whose heiress is said plaintiff, against Andres
Garchitorena, also deceased, represented by his
son, the defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment
for P7,872.23 against Joaquin Perez Alcantara,
husband of the plaintiff, Carmen G. de Perez, the
sheriff pursuant to the writ of execution issued in said
judgment, levied an attachment on said amount
deposited with La Urbana.
The plaintiff, alleging that said deposit belongs to the
fideicommissary heirs of the decedent Ana Maria
Alcantara, secured a preliminary injunction
restraining the execution of said judgment on the
sum so attached. The defendants contend that the
plaintiff is the decedent's universal heiress, and pray
for the dissolution of the injunction.
The court below held that said La Urbana deposit
belongs to the plaintiff's children as fideicommissary
heirs of Ana Maria Alcantara, and granted a final writ
of injunction.
The defendants insist in their contentions, and, in
their appeal from the decision of the trial court,
assign the following errors:
1. The lower court erred in holding that a trust was
created by the will of Doña Ana Maria Alcantara.
2. The lower court erred in concluding and declaring
that the amount of P21,428.58 deposited with La
Urbana is the property of the children of the plaintiff
as "herederos fidei-comisarios."
3. The lower court erred in making the injunction
permanent and condemning defendant to pay the
costs.
The question here raised is confined to the scope
and meaning of the institution of heirs made in the
will of the late Ana Maria Alcantara already admitted
to probate, and whose legal force and effect is not in
dispute.
The clauses of said will relevant to the points in
dispute, between the parties are the ninth, tenth, and
eleventh, quoted below:
Ninth. Being single and without any forced heir, to
show my gratitude to my niece-in-law, Carmen
Garchitorena, of age, married to my nephew, Joaquin
Perez Alcantara, and living in this same house with
me, I institute her as my sole and universal heiress to
the remainder of my estate after the payment of my
debts and legacies, so that upon my death and after
probate of this will, and after the report of the
committee on claims and appraisal has been
rendered and approved, she will receive from my
executrix and properties composing my hereditary
estate, that she may enjoy them with God's blessing
and my own.
Tenth. Should my heiress Carmen Garchitorena die,
I order that my whole estate shall pass unimpaired to
her surviving children; and should any of these die,
his share shall serve to increase the portions of his
surviving brothers (and sisters) by accretion, in such
wise that my estate shall never pass out of the hands
of my heiress or her children in so far as it is legally
possible.
Eleventh. Should my aforesaid heiress, Carmen
Garchitorena, die after me while her children are still
in their minority, I order that my estate be
administered by my executrix, Mrs. Josefa Laplana,
and in her default, by Attorney Ramon Salinas and in
his default, by his son Ramon Salinas; but the
direction herein given must not be considered as an
indication of lack of confidence in my nephew
Joaquin Perez Alcantara, whom I relieve from the
duties of administering my estate, because I
recognize that his character is not adapted to
management and administration.
The appellants contend that in these clauses the
testatrix has ordered a simple substitution, while the
appellee contends that it is a fideicommissary
substitution.
This will certainly provides for a substitution of heirs,
and of the three cases that might give rise to a
simple substitution (art. 774, Civil Code), only the
death of the instituted heiress before the testatrix
would in the instant case give place to such
substitution, inasmuch as nothing is said of the
waiver of inheritance, or incapacity to accept it. As a
matter of fact, however, clause XI provides for the
administration of the estate in case the heiress
instituted should die after the testatrix and while the
substitute heirs are still under age. And it is evident
that, considering the nature of simple substitution by
the heir's death before the testator, and the fact that
by clause XI in connection with clause X, the
substitution is ordered where the heiress instituted
dies after the testatrix, this cannot be a case of
simple substitution.
The existence of a substitution in the will is not and
cannot be denied, and since it cannot be a simple
substitution in the light of the considerations above
stated, let us now see whether the instants case is a
fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein
her sole and universal heiress, and provides that
upon her death (the testatrix's) and after probate of
the will and approval of the report of the committee
on claims and appraisal, said heiress shall receive
and enjoy the whole hereditary estate. Although this
clause provides nothing explicit about substitution, it
does not contain anything in conflict with the idea of
fideicommissary substitution. The fact that the
plaintiff was instituted the sole and universal heiress
does not prevent her children from receiving, upon
her death and in conformity with the express desire
of the testatrix, the latter's hereditary estate, as
provided in the following (above quoted) clauses
which cannot be disregarded if we are to give a
correct interpretation of the will. The word sole does
not necessarily exclude the idea of substitute heirs;
and taking these three clauses together, such word
means that the plaintiff is the sole heiress instituted
in the first instance.
The disposition contained in clause IX, that said
heiress shall receive and enjoy the estate, is not
incompatible with a fideicommissary substitution (it
certainly is incompatible with the idea of simple
substitution, where the heiress instituted does not
receive the inheritance). In fact the enjoyment of the
inheritance is in conformity with the idea of
fideicommissary substitution, by virtue of which the
heir instituted receives the inheritance and enjoys it,
although at the same time he preserves it in order to
pass it on the second heir. On this point the
illustrious Manresa, in his Civil Code (Vol. 6, pp. 142
and 143, 5th ed.), says:
Or, what amounts to the same thing, the
fideicommissary substitution, as held in the
Resolution of June 25, 1895, February 10, 1899, and
July 19, 1909, requires three things:
1. A first heir called primarily to the enjoyment of the
estate.
2. An obligation clearly imposed upon him to
preserve and transmit to a third person the whole or
a part of the estate.
3. A second heir.
To these requisites, the decision of November 18,
1918 adds another, namely that the
fideicommissarius be entitled to the estate from the
time the testator dies, since he is to inherit from the
latter and not from the fiduciary. (Emphasis ours.)
It appears from this quotation that the heir instituted
or the fiduciary, as referred to in articles 783 of the
Civil Code, is entitled to enjoy the inheritance. And it
might here be observed, as a timely remark, that the
fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly
equivalent to, nor may it be confused with, the
English "trust."
It should also be noted that said clause IX vests in
the heiress only the right to enjoy but not the right to
dispose of the estate. It says, she may enjoy it, but
does not say she may dispose of it. This is an
indication of the usufruct inherent in fideicommissary
substitution.
Clause X expressly provides for the substitution. It is
true that it does not say whether the death of the
heiress herein referred to is before or after that of the
testatrix; but from the whole context it appears that in
making the provisions contained in this clause X, the
testatrix had in mind a fideicommissary substitution,
since she limits the transmission of her estate to the
children of the heiress by this provision, "in such wise
that my estate shall never pass out of the hands of
my heiress or her children in so far as it is legally
possible." Here it clearly appears that the testatrix
tried to avoid the possibility that the substitution
might later be legally declared null for transcending
the limits fixed by article 781 of the Civil Code which
prescribed that fideicommissary substitutions shall be
valid "provided they do not go beyond the second
degree."
Another clear and outstanding indication of
fideicommissary substitution in clause X is the
provision that the whole estate shall pass unimpaired
to the heiress's children, that is to say the heiress is
required to preserve the whole estate, without
diminution, in order to pass it on in due time to the
fideicommissary heirs. This provision complies with
another of the requisites of fideicommissary
substitution according to our quotation from Manresa
inserted above.
Lastly, clause XI more clearly indicates the idea of
fideicommissary substitution, when a provision is
therein made in the event the heiress should die after
the testatrix. That is, said clause anticipates the case
where the instituted heiress should die after the
testatrix and after receiving and enjoying the
inheritance.
The foregoing leads us to the conclusion that all the
requisites of a fideicommissary substitution,
according to the quotation from Manresa above
inserted, are present in the case of substitution now
under consideration, to wit:
1. At first heir primarily called to the enjoyment of the
estate. In this case the plaintiff was instituted an
heiress, called to the enjoyment of the estate,
according to clause IX of the will.
2. An obligation clearly imposed upon the heir to
preserve and transmit to a third person the whole or
a part of the estate. Such an obligation is imposed in
clause X which provides that the "whole estate shall
pass unimpaired to her (heiress's) surviving children;"
thus, instead of leaving the heiress at liberty to
dispose of the estate by will, or of leaving the law to
take its course in case she dies intestate, said clause
not only disposes of the estate in favor of the heiress
instituted, but also provides for the disposition thereof
in case she should die after the testatrix.
3. A second heir. Such are the children of the heiress
instituted, who are referred to as such second heirs
both in clause X and in clause XI.
Finally, the requisite added by the decision of
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
against the appellant, Mariano Garchitorena. So
ordered.
Johnson, Malcolm, Villamor, Ostrand, Johns and
Villa-Real, JJ., concur.Street, J., reserves his vote.