Art. 838 G.R. No. L-12767
November 16, 1918
In the matter of the estate of EMIL . !"N#"N. E$$A INGE$"RG !"N#"N %a&ts' Emil H. Johnson, a native of Sweden and a naturalized citizen of the United States, died in the city of Manila, leaving a will, dated September , !!", by which he disposed of an estate estate with the value of #$%!,&''. (his document document is an holographic instrument instrument,, being written in the testator)s own handwriting, and is signed by himself and two witnesses only, instead instead of three witnesses re*uired by section +!& of the ode of ivil #rocedure.
(his will, therefore, was not e-ecuted in conformity with the provisions of law generally applicable to wills e-ecuted by inhabitants of these slands, and hence could not have been proved under section +!&. /n 0ebruary , !!+, however, a petition was presented in the ourt of 0irst nstance of the city of Manila for the probate of this will. (he hearing on said application was set for March +, !!+, and three wee1s publication of notice was ordered in the 2Manila 3aily 4ulletin.2 3ue publication was made pursuant to this order of the court. /n March +, !!+, witnesses were e-amined relative to the e-ec ution of the will5 and upon March !+th thereafter the document was declared to be legal and was admitted to probate. /n June !$, !!+, or about three months after the will had been probated, the attorneys for Ebba ngeborg Johnson entered an appearance in her behalf and noted an e-ception to the other admitting admitting the will to probate. /n /ctober /ctober %!, !!+, the same attorneys attorneys moved the court to vacate the order of March !+ and also various other orders in the case. /n 0ebruary $', !!6, this motion was denied, and from this action of the trial court the present appeal has been perfected. (he purpose of the proceeding on behalf of the petitioner is to annul the decree of probate and and put put the the esta estate te into into inte intest stat atee admin adminis istr trat atio ion, n, thus thus prep prepar arin ing g the the way for for the the establishment of the claim of the petitioner as the sole legitimate heir of he r father. Iss(e' 7/8 the order admitting the will to probate was beyond the 9urisdiction of the court and void because made without notice to the petitioner. R()*n+' t was pointed out in the argument submitted in behalf of the petitioner, that, at the time the court made the order of publication, it was apprised of the fact that the petitioner lived in the United States and that as daughter and heir she was necessarily interested in the probate of the will. t is, therefore, insisted that the court should have appointed a date for the probate of the will sufficiently far in the future to permit the petitioner to be present either in person or by representation5 and it is said that the failure of the court thus to postpone the probate of the will constitutes an infringement of that provision of the
#hilippine 4ill which declared that property shall not be ta1en without due process of law. /n this point we are of the opinion that the proceedings for the probate of the will were regular and that the publication was sufficient to give the court 9urisdiction to entertain the proceeding and to allow the will to be probated. :s was said in the case of In re 3avis ;!%+ al., "', "+<, 2the proceeding as to the probate of a will is essentially one in rem, and in the very nature of things the state is allowed a wide latitude in determining the character of the constructive notice to be given to the world in a proceeding where it has absolute possession of the res. t would be an e-ceptional case where a court would declare a statute void, as depriving a party of his property without due process of law, the proceeding being strictly in rem, and the res within the state, upon the ground that the constructive notice prescribed by the statute was unreasonably short.2 n that case the petitioner had been domiciled in the Hawaiian slands at the time of the testator)s death5 and it was impossible, in view of the distance and means of communication then e-isting, for the petitioner to appear and oppose the probate on the day set for the hearing in alifornia. t was nevertheless held that publication in the manner prescribed by statute constituted due process of law. (he laws of these slands, in contrast with the laws in force in perhaps all of the States of the :merican Union, contain no special provision, other than that allowing an appeal in the probate proceedings, under which relief of any sort can be obtained from an order of a court of first instance improperly allowing or disallowing a will. 7e do, however, have a provision of a general nature authorizing a court under certain circumstances to set aside any 9udgment, order, or other proceeding whatever. (his provision is found in section !!% of the ode of ivil #rocedure, which reads as follows= Upon such terms as may be 9ust the court may relieve a party or his legal representative from a 9udgment, order or other proceeding ta1en against him through his mista1e, inadvertence, surprise or e-cusable neglect5 Provided , (hat application therefor be made within a reasonable time, but in no case e-ceeding si- months after such 9udgment, order, or proceeding was ta1en. (he use of the word 29udgment, order or other proceeding2 in this section indicates an intention on the part of the >egislature to give a wide latitude to the remedy here provided, and in our opinion its operation is not to be restricted to 9udgments or orders entered in ordinary contentious litigation where a plaintiff impleads a defendant and brings him into court by personal service of process. n other words the utility of the provision is not limited to actions proper but e-tends to all sorts of 9udicial proceedings. (he petitioner, therefore, in this case could have applied, under the section cited, at any time within si- months for March !+, !!+, and upon showing that she had been precluded from appearing in the probate proceedings by conditions over which she had
no control and that the order admitting the will to probate had been erroneously entered upon insufficient proof or upon a supposed state of facts contrary to the truth, the court would have been authorized to set the probate aside and grant a rehearing. t is no doubt true that si- months was, under the circumstances, a very short period of time within which to e-pect the petitioner to appear and be prepared to contest the probate with the proof which she might have desired to collect from remote countries. 8evertheless, although the time allowed for the ma1ing of such application was inconveniently short, the remedy e-isted5 and the possibility of its use is proved in this case by the circumstance that on June !$, !!+, she in fact here appeared in court by her attorneys and e-cepted to the order admitting the will to probate. t results that, in conformity with the doctrine announced in the 3avis case, above cited, the proceedings in the court below were conducted in such manner as to constitute due process of law. (he law supplied a remedy by which the petitioner might have gotten a hearing and have obtained relief from the order by which she is supposed to have been in9ured5 and though the period within which the application should have been made was short, the remedy was both possible and practicable. Art. 89, 863, 882 G.R. No. 11372. !(ne 29, 2/ !"NN0 #. RA$AILLA,1/ et*t*oner, vs. "4R5 "% AEAL# AN MARIA MARLENA2/ "#"L4ELLA 0 $ELLEA ILLAARL"#, resonents. %a&ts' n a odicil appended to the >ast 7ill and (estament of testatri- :le9a 4elleza, 3r. Jorge ?abadilla, predecessor@in@interest of the herein petitioner, Johnny S. ?abadilla, was instituted as a devisee of a parcel of land of the 4acolod adastre. (he codicil was duly probated and admitted before the then ourt of 0irst nstance of 8egros /ccidental.
3r. Jorge ?abadilla died in !&% and was survived by his wife ?ufina and children Johnny ;petitioner<, :urora, /felia and Aenaida. /n :ugust $!, !&, Maria Marlena oscolluela y 4elleza Billacarlos brought a complaint, against the above@mentioned heirs of 3r. Jorge ?abadilla, to enforce the provisions of sub9ect odicil. (he omplaint alleged that the defendant@heirs violated the conditions of the odicil, in that= !. >ot 8o. !%$ was mortgaged to the #hilippine 8ational 4an1 and the ?epublic #lanters 4an1 in disregard of the testatri-)s specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatri-. $. 3efendant@heirs failed to comply with their obligation to deliver one hundred ;!''< piculs of sugar ;6" piculs e-port sugar and $" piculs domestic sugar< to plaintiff Maria Marlena oscolluela y 4elleza from sugar crop years !&" up to the filing of the complaint as mandated by the odicil, despite repeated demands for compliance. %. (he ban1s failed to comply with the +th paragraph of the odicil which provided that
in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall li1ewise have the obligation to deliver !'' piculs of sugar per crop year to herein private respondent. /n July $$, !!, the ?egional (rial ourt came out with a decision, dismissing the complaint. /n appeal by plaintiff, the 0irst 3ivision of the ourt of :ppeals reversed the decision of the trial court ordering defendants@appellees, as heirs of Jorge ?abadilla, to reconvey title, together with its fruits and interests, to the estate of :le9a 4elleza. Iss(e' 7/8 there was provision in the codicil as to the substitution of the testatri-Cs relatives should ?abadilla predecease the testatri-, incapacitated, or renounced the inheritance. ;:rt. &"< @ 8/8E
7/8 there is fideicommissary substitution. ;:rt. &+%< @ 8/8E R()*n+' n simple substitutions, the second heir ta1es the inheritance in default of the first heir by reason of incapacity, predecease or renunciation.D!F n the case under consideration, the provisions of sub9ect odicil do not provide that should 3r. Jorge ?abadilla default due to predecease, incapacity or renunciation, the testatri-)s near descendants would substitute him. 7hat the odicil provides is that, should 3r. Jorge ?abadilla or his heirs not fulfill the conditions imposed in the odicil, the property referred to shall be seized and turned over to the testatri-)s near descendants.
8either is there a fideicommissary substitution here and on this point, petitioner is correct. n a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. n the case under consideration, the instituted heir is in fact allowed under the odicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatri-. (hus, a very important element of a fideicommissary substitution is lac1ing5 the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. 27ithout this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution.2 :lso, the near descendants) right to inherit from the testatri- is not definite. (he property will only pass to them should 3r. Jorge ?abadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. :nother important element of a fideicommissary substitution is also missing here. Under :rticle &+%, the second heir or the fideicommissary to whom the property is transmitted m(st not be be:on one e+ree from the f*rst he*r or the f*(&*ar: . : fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir. n the case under scrutiny, the near descendants are not at all related to the instituted heir, 3r. Jorge ?abadilla. (he ourt of :ppeals erred not in ruling that the institution of 3r. Jorge ?abadilla under
sub9ect odicil is in the nature of a modal institution and therefore, :rticle &&$ of the 8ew ivil ode is the provision of law in point. :rticles &&$ and &&% of the 8ew ivil ode provide= :rt. &&$. (he statement of the ob9ect of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. (hat which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. :rt. &&%. 7hen without the fault of the heir, an institution referred to in the preceding article cannot ta1e effect in the e-act manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. (he institution of an heir in the manner prescribed in :rticle &&$ is what is 1nown in the law of succession as an institucion sub modo or a modal institution. n a modal institution, the testator states ;!< the ob9ect of the institution, ;$< the purpose or application of the property left by the testator, or ;%< the charge imposed by the testator upon the heir. : 2mode2 imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. /n the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. (he condition suspends but does not obligate5 and the mode obligates but does not suspend. (o some e-tent, it is similar to a resolutory condition. 0rom the provisions of the odicil litigated upon, it can be gleaned unerringly that the testatri- intended that sub9ect property be inherited by 3r. Jorge ?abadilla. t is li1ewise clearly worded that the testatri- imposed an obligation on the said instituted heir and his successors@in@interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena oscolluela 4elleza, during the lifetime of the latter. However, the testatri- did not ma1e 3r. Jorge ?abadilla)s inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. t is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatri-)s near descendants. (he manner of *nst*t(t*on of r. !or+e Raba*))a (ner s(b;e&t o*&*) *s ev*ent): moa) *n nat(re be&a(se *t *moses a &har+e (on the *nst*t(te he*r <*tho(t, ho
5E#5A5E E#5A5E "% !"#E E4GENI" RAMIRE, MARIA L4I#A ALAI"#, vs. MARELLE . A. E RAMIRE, E5 AL., oos*tors, !"RGE an R"$ER5" RAMIRE, %a&ts' Jose Eugenio ?amirez, a 0ilipino national, died in Spain on 3ecember !!, !+, with only his widow as compulsory heir. His will was admitted to probate b y the ourt of 0irst nstance of Manila, 4ranch G, on July $6, !+". Maria >uisa #alacios was appointed administratri- of the estate. /n June $%, !++, the administratri- submitted a pro9ect of partition as follows= the property of the deceased is to be divided into two parts. /ne part shall go to the widow en plenodominioI in satisfaction of her legitime5 the other part or free portionI shall go to Jorge and ?oberto ?amirez en nudapropriedad.I 0urthermore, one third ;!%< of the free portion is charged with the widow s usufruct and the remaining two@third ;$%< with a usufruct in favor of 7anda. ‟
@:##E:> for the partitioning of testate estate of Jose Eugenio ?amirez ;a 0ilipino national, died in Spain on 3ecember !!, !+< among principal beneficiaries= Mar&e))e emoron e Ram*re= @widow @0rench who lives in #aris @received K ;as spouse< and usufructuary rights over !% of the free portion ?oberto and Jorge ?amirez @two grandnephews @lives in Malate @received the K ;free portion< >ana e >rob)es?* @companion @:ustrian who lives in Spain @received usufructuary rights of $% of the free portion @vulgar substitution in favor of Juan #ablo Jan1ows1i and H oracio ?amirez @Maria >uisa #alacios @administrati-
Jorge and ?oberto ?amirez opposed because= a. vulgar substitution in favor of 7anda wrt widowCs usufruct and in favor of Juan #ablo Jan1ows1i and Horacio ?amirez, wrt to 7andaCs usufruct is 8B:>3 because first heirs ;Marcelle and 7anda< survived the testator b. fideicommissary substitutions are 8B:>3 because first heirs not related to the second heirs or substitutes within the first degree as provided in :rt &+% c. grant of usufruct of real property in favor of an alien, 7anda, violated :rt G Sec " d. proposed partition of the testatorCCs interest in the Santa ruz 4uilding between widow and appellants violates testators e-press will to give this property to them
Iss(e' 7/8 there was valid substitution. R()e' Bulgar substitutions are valid because dying before the testator is not the only case where a vulgar substitution can be made. :lso, according to :rt &" , cases also include refusal or incapacity to accept inheritance therefore it is B:>3.
4U( fideicommissary substitutions are B/3 because Juan #ablo Jan1ows1i and Horace ?amirez are not related to 7ande and according to :rt &+% , it validates a fideicommissary substitution provided that such substitution does not go beyond one degreefrom the heir originally instituted. :nother is that there is no absolute duty imposed on 7anda to transmit the usufructuary to the substitutes and in fact the apellee agrees that the testator contradicts the establishment of the fideicommissary substitution when he permits the properties be sub9ect to usufruct to be sold upon mutual agreement ofthe usufructuaries and na1ed owners. G.R. Nos. L-2786 an L-27896 Mar&h 29, 197@ ILIINE "MMERIAL AN IN4#5RIAL $AN, Am*n*strator of the 5estate Estate of har)es Neinnie Jane Hodges died in loilo ity leaving a will e-ecuted on 8ovember $$, !"$. (his will was subse*uently probated in aforementioned Special #roceedings 8o. !%'6 of respondent court on June $&, !"6, with the widower harles 8ewton Hodges being appointed as E-ecutor, pursuant to the provisions thereof. #reviously, on May $6, !"6, the said widower ;hereafter to be referred to as Hodges< had been appointed Special :dministrator.
n her will, she left all her estate in favor of her husband, harles 8ewton Hodges. >innie however also stated in her will that should her husband later die, said estate shall be turned over to her brother and sister. n 3ecember !+$, harles died ;it appears he was also domiciled here<. :tty. >eon Lellada, the lawyer of harles filed a motion before the probate court ;there was an ongoing probate on the will of >innie< so that a certain :velina Magno may be appointed as the administratri- of the estate. Magno was the trusted employee of the Hodges when they were alive. :tty. Lellada manifested that harles himself left a will b ut the same was in an iron trun1 in harlesC office. Hence, in the meantime, heCd li1e to have Magno appointed as administratri-. Judge Benicio Escolin approved the motion. >ater, harlesC will was found and so a new petition for probate was filed for the said will. Since said will basically covers the same estate, Magno, as admininistratri- of >innieCs estate opposed the said petition. Eventually, the probate of harlesC will was
granted. Eventually still, the #hilippine ommercial and ndustrial 4an1 was appointed as administrator. 4ut Magno refused to turn over the estate. Magno contended that in her will, >innie wanted harles to turn over the property to >innieCs brother and sister and since that is her will, the same must be respected. Magno also contended that >innie was a (e-an at the time of her death ;an alien testator<5 that under :rticle !+ of the ivil ode, successional rights are governed by >innieCs national law5 that under (e-as law, >innieCs will shall be respected regardless of the presence of legitimes ;harlesC share in the estate<. t s #4)s contention that, viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges) brothers and sisters may not be given effect. Iss(e' 7/8 there was substitution in the will of Mrs. Hodges. @ 8/ R()*n+' Mrs. Hodges) will provides neither for a simple or vulgar substitution under :rticle &" of the ivil ode nor for a fideicommissary substitution under :rticle &+% thereof. (here is no vulgar substitution therein because there is no provision for either ;!< predecease of the testator by the designated heir or ;$< refusal or ;%< incapacity of the latter to accept the inheritance, as re*uired by :rticle &"5 and neither is there a fideicommissary substitution therein because no obligation is imposed thereby upon Hodges to preserve the estate or any part thereof for anyone else. 4ut from these premises, it is not correct to 9ump to the conclusion, as #4 does, that the testamentary dispositions in *uestion are therefore inoperative and invalid.
(he error in #4)s position lies simply in the fact that it views the said disposition e-clusively in the light of substitutions covered by the ivil ode section on that sub9ect, ;Section %, hapter $, (itle B, 4oo1 < when it is obvious that substitution occurs only when another heir is appointed in a will 2so that he may enter into inheritance in default of the heir originally instituted,2 ;:rticle &"6, id.< and, in the present case, no such possible default is contemplated. (he brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will, they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not dispose of from his inheritance5 rather, therefore, they are also heirs instituted simultaneously with Hodges, sub9ect, however, to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters@in@ law. t is partially resolutory, since it be*ueaths unto Hodges the whole of her estate to be owned and en9oyed by him as universal and sole heir with absolute dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters@in@law to the inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual e-istence of any remainder of her estate then.
