DE PEREZ vs. GARCHITORENA

CARMEN G. DE PEREZ vs. MARIANO GARCHITORENA, and JOSE CASIMIRO

G.R. No. L-31703 February 13, 1930

ROMUALDEZ, J.:

Facts:

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.

Issue:

            Whether or not the substitution is simple or fideicommissary substitution

Ruling:

The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, 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, 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.

Adjudication:

            WHEREFORE, premises considered, the petition is GRANTED.