SUBSTITUTION OF HEIRS – SIMPLE AND FIDEICOMMISARY

8. PEREZ v. GARCHOTORENA
[No. 31703. February 13, 1930] CARMEN G. DE PEREZ, trustee of the estate of
Ana Maria Alcantara, plaintiff and appellee, vs. MARIANO GARCHITORENA, and
JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila, defendants and
appellants.

ROMUALDEZ, J.

FACTS:

Plaintiff-appellee Carmen de Perez was instituted in a Will as the sole heiress of

her deceased aunt-in-law, Ana Maria Alcantara, who died unmarried and no children.
Before her death, Ana Maria was living in a house with the family of Carmen and
Joaquin Perez Alcantara, Ana Maria’s nephew and husband of Carmen. The Will was
already probated and implemented. As such, an amount of P21,428.58 was deposited
in Carmen’s name with the association known as La Urbana in Manila as the final
payment of the liquidated credit of Ana Maria. In this case, Joaquin, was adjudged to
pay P7,872.23 to defendant-appellant Mariano Garchitorena. By virtue of such
judgment, a writ of execution was issued and the Sheriff levied attachment on the
deposit under Carmen’s name in La Urbana.

Carmen applied and eventually secured a preliminary injunction to restrain the

execution of the judgment against her account in La Urbana. She asserted that she is
Ana Maria’s universal heiress and the subject deposit belongs to the fideicommissary
heirs of the latter. The lower court, in granting the relief, ruled that the deposit belongs
to the fideicommissary heirs, the children of Carmen, and cannot be subject to
attachment against Carmen’s husband. Hence, this petition.

In this appeal before the SC, Garchitorena claims that there was only simple
substitution in the subject Will.

ISSUE: Whether or not the substitution in Ana Maria’s Will is a fideicommissary

substitution barring the subject attachment – YES

HELD:

The institution of heirs made in Ana Maria’s will is in the nature of a

fideicommissum because of the concurrence of the following elements:
a. there is an heiress primarily called to enjoy the estate
b. an obligation clearly imposed upon her to preserve and transmit the whole of
the estate to certain third persons; and
 c. there are secondary heirs

This concurrence was proven by pertinent clauses IX, X and XI of Ana Maria’s
will.

First, a first heir primarily called to the enjoyment of the estate. In this case,
Carmen was instituted as an heiress and was called to the enjoyment of the estate,
according to clause IX of the will.

Second, an obligation clearly imposed upon her 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 (Carmen’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. Hence, Carmen has only
the right to enjoy, but not the right to dispose of the estate.

Third, 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. A second heir should
be entitled to the estate from the time of the testator's death, which in the instant case, 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 testatrix.

In conclusion, the inheritance in question (deposit in La Urbana under Camen’s

name) does not belong to Carmen as her absolute property, but to her children, from
the moment of the death of the testatrix, Ana Maria Alcantara. Therefore, such
inheritance, is does not belong to her nor can it be subject to the execution of the
judgment against her husband, Joaquin Perez, who is not one of the fideicommissary
heirs.

With regard to trust, the SC ruled that it should not be confused with
fideicommissary. In the latter’s case, the heir instituted, or fideicommissioner is entitled
to the enjoyment of the estate. The fideicommissum thus arising from a fideicommissary
substitution, which is of Roman origin, is not exactly equivalent to, and should not be
confused with, the English "trust."

JUDGMENT APPEALED IS AFFIRMED