Section 3 3.
Be incapacitated to accept the
Substitution of Heirs
Art. 857. Substitution is the
appointment of another heir so that
he may enter into the inheritance in
default of the heir originally
instituted.
Q: What is ‘substitution of heirs?
A: Article 857,NCC
General Limitation. — If the heir for
whom a substitute is appointed is a
compulsory heir, the rule is that the
substitution cannot affect the legitime of
such heir. Since the right to appoint a
substitute for the heir instituted is based
on the testator’s freedom of disposition,
the same limitation which is imposed
upon such freedom of disposition must
also be imposed upon such right to
appoint a substitute. This is clear from
the provisions of Arts. 842, 864, 872,
and 904.
Q: What are the different types of
substitution of heirs?
A.: Art. 858, NCC
Art. 858. Substitution of heirs may
be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal;or
(4) Fideicommissary.
Q: What is simple substitution?
A: Simple or common substitution is
that which takes place when the
testator designates one or more
persons to substitute the heirs
instituted in case such heir/s should
1. Die before the testator;
2. Not wish to accept the
inheritance; or
1
inheritance (Art. 859, NCC)
Q: What is the implication if a simple
substitution is made without a
statement of the cases mentioned
above?
A: A simple substitution without a
statement of the cases to which it
refers, shall comprise the three
mentioned unless the testator has
provided otherwise (Art. 859, NCC)
PEREZ Us. GARCHITORENA, 54 Phil.
431 (G.R. No. L-31703, February 13,
1930)
The testatrix instituted as her sole heir
her niece-in-law, Carmen Garchitorena,
"so that upon my death and after the
probate of this will xxx she will receive
from my executrix the properties
composing my hereditary estate, that
she may enjoy them with God's blessing
and my own." It was further provided
that should the heiress die, "I order that
my whole estate shall pass unimpaired
to her surviving children × xx 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." Further on it was provided
that should "Carmen Garchitorena die
after me while her children are still in
their minority" the estate shall be
administered by persons named in the
will.
ISSUE: Was this a simple substitution,
or a fideicommissary substitution?
HELD: The will contemplates the
enjoyment of the estate by the heir
instituted during her lifetime, with the
only proviso that she could not dispose
of it, because its transmission is limited
to her children, and it is provided that
the whole of it should pass to them
unimpaired. It also contemplates the
survivorship of the heir. All the
requisites of a fideicommissary
substitution are present.
The time when the transmission is to be
made to the second heir is left to the will
of the testator; the disposition in his will
must be followed in this regard, if there
be any. If the testator should not have
expressly provided when the
transmission shall take place, it is
understood to be at the death of the
fiduciary.
Art. 864. A fideicommissary
substitution can never burden 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 the testator
has provided otherwise.
Q: What does the obligation to
deliver include?
ANS: The fiduciary shall be obliged to
deliver the inheritance of the second
heir, without other deductions than those
which arise from legitimate expenses,
credits and improvements, save in
cases where the testator has provided
otherwise. (Art. 865, par. 2, NCC)
Q: What are the limitation
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.
2
Crisologo vs. Singson
4 SCRA 491 (G.R. No. L-13876
February 28, 1962)
Leona Singson died with a will wherein
she devised one- half of a big parcel of
land to her three brothers, Evaristo,
Manuel and Dionisio, and the other
one-half to a grandniece, Consolacion
Florentino, but subject to the condition
that upon Consolacion’s death, whether
before or after that of the testatrix, said
one-half of the property devised to her
shall be delivered to Evaristo, Manuel
and Dionisio, or their heirs should
anyone of them die before Leona and
Consolacion. After the will was admitted
to. probate, Consolacion demanded for
the partition of the property. Evaristo,
Manuel and Dionisio, however, con-
tended that since she is only a
usufructuary she cannot demand for the
partition of the property.
ISSUE: Is this contention tenable?
Held: This contention is untenable. Art.
785 (now Art. 865) of the Civil Code
provides that a fideicommissary
substitution shall have no effect unless it
is made expressly either by giving it
such name or by imposing upon the first
heir the absolute obligation to deliver the
inheritance to the second heir. The
testamentary clause under
consideration does not call the
institution a fideicommissary substitution
nor does it contain a clear statement
that Consolacion enjoys only a
usufructuary right the naked ownership
being vested in the brothers of the
testatrix. The will therefore, establishes
a simple or common substitution, the
necessary result of which is that, upon
the death of the testatrix, Consolacion
became the owner of an undivided half
of the property. She can, therefore,
demand for partition.
Q: When does the fiduciary transfers
the property or inheritance to the
fideicommissary?

A: Transmission of inheritance. —
The Code is silent with regard to the
time when the property or inheritance
shall be transmitted by the fiduciary to
the fideicomissary. According to Spanish
commentators, the reason for this is the
fact that the same is subject to the
testator’s freedom of disposition.
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 as
not written.
Effect of Void Fideicommissary
Substitutions. — According to Art. 868,
the nullity of the fideicomissary
substitution does not prejudice the
validity of the institution of the heirs first
designated; the fideicomissary clause
shall simply be considered as not
written. This rule is of course logical
considering that the fideicomissary sub-
stitution is the subsidiary institution,
while the first institution of heirs is the
principal institution.
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 article
863 shall apply.
Disposition of Usufruct to Various
Persons. — The rule stated in the first
sentence of Art. 869 is a logical
consequence of the principle that the
owner of a thing has the power to
dispose of not only the whole but also
any part of his right of ownership over
the thing. With regard to the rule stated
in the second sentence, although the
rules regarding fideicomissary
substitution are applicable, in reality,
there is no fideicommissary substitution,
3
but merely a simple institution of heir
combined with a legacy.
Q: What does "one degree" mean?
ANS: It refers to the degree of
relationship(i.e., "one generation"). As
such, a fideicommissarycan only be
either a parent or a child of the firstheir
(Palacios v.Ramirez,G.R. No. L-27952,
February 15, 1982).
Note: There are two views as to the
meaning of "one degree,":
Traditional view (degree of
relationship) -When the law says that
the substitution must not go beyond one
degree from the heir originally instituted,
what is meant that the fideicommissary
substitute must not beyond one degree
of relationship from the fiduciary heir.
Consequently,only the child or parent of
the latter can be appointed as
fideicommissaryheir.
2. Modern view (designation or
transmission//lamamiento)- When the
law says that the substitution must not
go beyond one degree from the heir
originally instituted, what is meant is that
the substitution must not extend beyond
one degree of designation from the heir
originally instituted.
Consequently, any person, whether
natural or juridical, or any entity not
disqualified by law to inherit from the
testator can be appointed as
fideicommissary heir (JURADO,
Succession, supra at 197-198).
By providing that the substitution shall
not go beyond one degree "from the heir
original instituted. The present Codehas
obviously followed the interpretation of
the world decree "as generation. The
Code, thus, clearly indicates that the
second heir must be related tom and be
one generation from the first heir.
(Ramirez v Vda. de Ramirez, GR No.
L-27952, February 15, 1982)
Art. 870. The dispositions of the
testator declaring all or part of the
estate inalienable for more than
twenty years are void.
Q: Is there a conflict between the
provision of Art. 870 and Art. 867 (2)?
No. If the prohibition to alienate is
perpetual, there is no reason why the
entire prohibition should be nullified. In
order to effectuate the testatorial intent,
it shall be valid but only for twenty years.
And if it so happens that in addition to
the prohibition to alienate there is a
fideicomissary substitution expressly
made, such prohibition shall not only be
limited to twenty years but it shall have
to be complemented by another
mandate of the testator — the obligation
of the first heir to preserve the property
for the benefit of the second heir.
Consequently, there can be no conflict
between the provision of this article and
that of No. 2 of Art. 867.
Section 4 — Conditional
Testamentary Dispositions
Art. 871. The institution of an heir
may be made conditionally, or for a
certain purpose or cause.
NATIVIDAD vs. GABINO, 36 Phil. 663:
In the sixth clause of the will executed
by the decedent he bequeathed to
Basilia Gabino the property therein
described, on condition that if the
legatee should die, Lorenzo Salvador
(successor of Gabino) would be obliged,
upon the payment of P4,000 by the
testator's grandson Emilio Natividad, to
hand over this property to the latter.
ISSUE: Did this disposition make Basilia
Gabino a mere usufructuary?
HELD: This was a double legacy of full
ownership, subject to condition. "The
condition imposed by the testator in the
double legacy mentioned depends upon
the happening of the event constituting
the condition, to wit, the death of the
legatee Basilia Gabino, a perfectly valid
condition ** as it is not imposable for
4
performance and is not contrary to law
or public morals*
"It is true that the legatee could not
make any disposal of the bequeathed
real property to be effective after her
death, nor could the property be
acquired from her by her heir through
testate or intestate succession; but if we
take into account that the institution of
donations and legacies depends on the
full free will of the testator, and that if the
testator intended no more than that
Basilia Gabino should enjoy the
ownership of the property during her
lifetime, this testamentary provision is
not contrary to law or to public morals,
inasmuch as the testator thereby
intended that the property should revert
to his lawful heir, the latter being obliged
to make a monetary compensation to
Lorenzo Salvador who appears to be
the successor of the legatee Gabino."
Morente vs. De la Santa, where the
testatrix merely orders her husband,
who is the principal beneficiary in her
will, not to marry again after her death,
without attaching such order to the
legacies and devises, or without stating
that failure to comply with the order shall
result in the nullity of the legacies and
devices, and subsequently, four months
after her death, the husband married
again, it was held that such legacies and
devises are not conditional, since the
condition does not fairly appear from the
language used in the will. (not
conditional)
Broce vs. Marcallana, where the
testatrix, in her will, expressly directed
her husband not to get married again,
after her death, or if he desires to get
married again, he must choose any of
her relatives within the sixth degree,
otherwise, he shall lose his right to the
properties bequeathed or devised to
him, and subsequently, after her death,
the husband got married again, but not
to any of her relatives, it was held that
the legacies and devises are
conditional, and as a consequence of
the violation of the condition, the
husband loses his right to the properties
given to him without prejudice to his
legitime.
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.
Conditions Which Impair Legitime. —
The rule stated in Art. 872 merely
reiterates the principle of the
untouchability of the legitime of
compulsory heirs. There is only one
instance under our law where the
testator is allowed to impose a charge
upon the legitime of compulsory heirs
and that is when the testator declares
that the hereditary estate shall not be
partitioned for a period which shall not
exceed twenty years. According to Art.
1083 of the Code, this power of the
testator to prohibit the division of the
estate applies even to the legitime of
compulsory heirs.
It must also be observed that a condition
imposed upon the legitime of a
compulsory heir is a condition which is
contrary to law. Consequently, even
looking at it from the viewpoint of Art.
873, the same shall be considered as
not imposed.
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.
MICIANO VS BRIMO, 50 Phil. 867:
The deceased was a Turkish subject,
but disposed that his property should be
distributed according to Philippine law.
He named legatees, including the
oppositor Brimo, on condition that they
respect the testator's will as to the
manner his property will be distributed,
"otherwise, I annul and cancel
5
beforehand whatever disposition found
in this will favorable to the person or
persons who fail to comply with this
request." The oppositor failed to comply
with the condition, when he opposed a
project of partition made according to
Philippine law, claiming that the
distribution should be according to
Turkish law.
HELD: "If this condition as it is
expressed were legal and valid, any
legatee who fails to comply with it, as
the herein oppositor who, by his attitude
in these proceedings has not respected
the will of the testator, as expressed, is
prevented from receiving his legacy. The
fact, however, is that the said condition
is void, being contrary to law because it
ignores the testator's national law when,
according to article 10 (now 16) of the
Civil Code such national law of the
testator is the one to govern his
testamentary dispositions. Said
condition then * is considered unwritten,
and the institution of legatees in said will
is unconditional and consequently valid
and effective even as to the herein
oppositor."
Santos vs. Buenaventura 18 SCRA 47
The records show that when the 1966
will of the late Maxima Santos Vda. de
Blas, which revoked her 1853 will, was
presented for probate, Flora Blas de
Buenaventura, one of the devisees,
interposed her opposition thereto on the
grounds that undue and improper
pressure and influence was exerted
upon the testatrix in the execution
thereof; that the testatrix’ signature was
secured through fraud; and that at the
time of the ex- ecution of the will, the
testatrix was mentally incapable of mak-
ing a will. Subsequently, however, she
withdrew her opposition. The
circumstances which led to said
withdrawal are as follows: In order to
pay for stenographic notes, she had to
sell her house for P5,000.00. Thereafter,
Rosalina Santos, the biggest benefi-
ciary under the will, gave a party at the There is, therefore, no further need to
Manila Hotel aimed at settling the case discuss the second issue on the validity
amicably. The lawyer of Rosalina was of a "no-contest and forfeiture" clause in
able to convince Flora to withdraw her this jurisdiction, since, at any rate, said
opposition. When the order admitting clause was not violated in this case.
the will to probate became final and
executory, Flora filed a motion praying
for delivery of the fishpond devised to
Art. 874. An absolute condition not to
her. Rosalina, however, opposed the
contract a first or subsequent
motion on the ground that said devise
marriage shall be considered as not
has been forfeited in favor of the
written unless such condition has
residuary heirs pursuant to the
been imposed on the widow or
“no-contest and forfeiture” clause in the
widower by the deceased spouse, or
will wherein it is stated that should any
by the latter's ascendants or
of the heirs, devisees or legatees
descendants.
contest or oppose its probate, the latter
shall lose his or her right to re- ceive any
Nevertheless, the right of usufruct, or
inheritance or benefit under it, which
an allowance or some personal
shall be forfeited in favor of the other
prestation may be devised or
heirs, devisees and legatees. Sustaining
bequeathed to any person for the
the view of Rosalina, the trial court
time during which he or she should
denied the motion of Flora. A motion for
remain unmarried or in widowhood.
reconsideration was filed. The court also
denied the motion. Flora appealed to the
MORENTE us. DE LA SANTA, 9 Phil.
Court of Appeals, which certified the
387:
appeal to the Supreme Court for
determination of questions purely of law.
The will of the deceased wife left all her
real property to her husband. In the
Issues: (1) Did Flora’s actuations
second clause, it provided: "That my
amount to a vio- lation of the “no-contest
said husband shall not leave my
and forfeiture” clause of the will? (2) Is
brothers after my death, and that he
the “no-contest and forfeiture” provision
shall not marry anyone; should my said
of the will valid?
husband have children by anyone, he
shall not convey any portion of the
Held: From the foregoing premises it
property left by me, except the one-third
cannot be said that Flora's actuations
part thereof and the two remaining thirds
impaired the true intention of the
shall be and remain for my brother
testatrix in regard to the "no-contest and
Vicente or his children should he have
forfeiture" clause of the will. Flora's act
any." Within four months after the
of withdrawing her opposition before she
testatrix's death, the widower married
had rested her case contributed to the
again.
speedy probate of the will. Since the
withdrawal came before Flora had
Issue: Can the devise be annulled?
rested her case, it precluded the defeat
of the probate upon the strength of
HELD: "It is provided in the second
Flora's evidence. Through said
clause that he shall not marry again. To
withdrawal, Flora conformed to the
no one of these orders (including the
testatrix's wish that her dispositions of
prohibition to remarry) is attached the
her properties under the will be carried
condition that if he fails to comply with
out. It follows that, taken as a whole,
them he shall lose the legacy given to
Flora's actuations subserved rather than
him by the first clause of the will."* We
violated the testatrix's intention.

6
are bound to construe the will with
reference to all the clauses contained
therein, and with reference to such
surrounding circumstances as duly
appear in the case, and after such
consideration we cannot say that it was
the intention of the testatrix that if her
husband married again he should forfeit
the legacy above mentioned. In other
words, there being no express condition
attached to that legacy in reference to
the second marriage, we cannot say
that any condition can be implied from
the context of the will."