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Art.

838
G.R. No. L-12767

November 16, 1918

In the matter of the estate of EMIL H. JOHNSON. EBBA INGEBORG JOHNSON


Facts:
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 9, 1915, by which he disposed of an
estate with the value of P231,800. This document is an holographic instrument, being
written in the testator's own handwriting, and is signed by himself and two witnesses
only, instead of three witnesses required by section 618 of the Code of Civil Procedure.
This will, therefore, was not executed in conformity with the provisions of law generally
applicable to wills executed by inhabitants of these Islands, and hence could not have
been proved under section 618.
On February 9, 1916, however, a petition was presented in the Court of First Instance of
the city of Manila for the probate of this will. The hearing on said application was set for
March 6, 1916, and three weeks publication of notice was ordered in the "Manila Daily
Bulletin." Due publication was made pursuant to this order of the court. On March 6,
1916, witnesses were examined relative to the execution of the will; and upon March 16th
thereafter the document was declared to be legal and was admitted to probate.
On June 12, 1916, or about three months after the will had been probated, the attorneys
for Ebba Ingeborg Johnson entered an appearance in her behalf and noted an exception to
the other admitting the will to probate. On October 31, 1916, the same attorneys moved
the court to vacate the order of March 16 and also various other orders in the case. On
February 20, 1917, this motion was denied, and from this action of the trial court the
present appeal has been perfected.
The purpose of the proceeding on behalf of the petitioner is to annul the decree of probate
and put the estate into intestate administration, thus preparing the way for the
establishment of the claim of the petitioner as the sole legitimate heir of her father.
Issue: WON the order admitting the will to probate was beyond the jurisdiction of the
court and void because made without notice to the petitioner.
Ruling:
It 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. It 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 representation; 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

Philippine Bill which declared that property shall not be taken without due process of
law.
On 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 jurisdiction to entertain
the proceeding and to allow the will to be probated.
As was said in the case of In re Davis (136 Cal., 590, 596), "the 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. It would be an
exceptional 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."
In that case the petitioner had been domiciled in the Hawaiian Islands at the time of the
testator's death; and it was impossible, in view of the distance and means of
communication then existing, for the petitioner to appear and oppose the probate on the
day set for the hearing in California. It was nevertheless held that publication in the
manner prescribed by statute constituted due process of law.
The laws of these Islands, in contrast with the laws in force in perhaps all of the States of
the American 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. We do, however, have a
provision of a general nature authorizing a court under certain circumstances to set aside
any judgment, order, or other proceeding whatever. This provision is found in section 113
of the Code of Civil Procedure, which reads as follows:
Upon such terms as may be just the court may relieve a party or his legal
representative from a judgment, order or other proceeding taken against him through
his mistake, inadvertence, surprise or excusable neglect; Provided, That application
therefor be made within a reasonable time, but in no case exceeding six months after
such judgment, order, or proceeding was taken.
The use of the word "judgment, order or other proceeding" in this section indicates an
intention on the part of the Legislature to give a wide latitude to the remedy here
provided, and in our opinion its operation is not to be restricted to judgments or orders
entered in ordinary contentious litigation where a plaintiff impleads a defendant and
brings him into court by personal service of process. In other words the utility of the
provision is not limited to actions proper but extends to all sorts of judicial proceedings.
The petitioner, therefore, in this case could have applied, under the section cited, at any
time within six months for March 16, 1916, 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.
It is no doubt true that six months was, under the circumstances, a very short period of
time within which to expect the petitioner to appear and be prepared to contest the
probate with the proof which she might have desired to collect from remote countries.
Nevertheless, although the time allowed for the making of such application was
inconveniently short, the remedy existed; and the possibility of its use is proved in this
case by the circumstance that on June 12, 1916, she in fact here appeared in court by her
attorneys and excepted to the order admitting the will to probate.
It results that, in conformity with the doctrine announced in the Davis case, above cited,
the proceedings in the court below were conducted in such manner as to constitute due
process of law. The 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
injured; and though the period within which the application should have been made was
short, the remedy was both possible and practicable.
Art. 859, 863, 882
[G.R. No. 113725. June 29, 2000]
JOHNNY S. RABADILLA,[1] petitioner, vs. COURT OF APPEALS AND MARIA
MARLENA[2] COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.
Facts:
In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge
Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was
instituted as a devisee of a parcel of land of the Bacolod Cadastre. The codicil was duly
probated and admitted before the then Court of First Instance of Negros Occidental.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children
Johnny (petitioner), Aurora, Ofelia and Zenaida.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a
complaint, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the
provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the
conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic
Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage
only to the near descendants and sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100)
piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria
Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the
complaint as mandated by the Codicil, despite repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which provided that

in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee
shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein
private respondent.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the
complaint. On appeal by plaintiff, the First Division of the Court of Appeals reversed the
decision of the trial court ordering defendants-appellees, as heirs of Jorge Rabadilla, to
reconvey title, together with its fruits and interests, to the estate of Aleja Belleza.
Issue: WON there was provision in the codicil as to the substitution of the testatrixs
relatives should Rabadilla predecease the testatrix, incapacitated, or renounced the
inheritance. (Art. 859) - NONE
WON there is fideicommissary substitution. (Art. 863) - NONE
Ruling:
In simple substitutions, the second heir takes the inheritance in default of the first heir by
reason of incapacity, predecease or renunciation.[14] In the case under consideration, the
provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to
predecease, incapacity or renunciation, the testatrix's near descendants would substitute
him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill
the conditions imposed in the Codicil, the property referred to shall be seized and turned
over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point, petitioner is
correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve
the property and to transmit the same later to the second heir. In the case under
consideration, the instituted heir is in fact allowed under the Codicil to alienate the
property provided the negotiation is with the near descendants or the sister of the
testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the
obligation clearly imposing upon the first heir the preservation of the property and its
transmission to the second heir. "Without this obligation to preserve clearly imposed by
the testator in his will, there is no fideicommissary substitution."
Also, the near descendants' right to inherit from the testatrix is not definite. The property
will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to
deliver part of the usufruct to private respondent.
Another important element of a fideicommissary substitution is also missing here. Under
Article 863, the second heir or the fideicommissary to whom the property is transmitted
must not be beyond one degree from the first heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first heir is not related by first degree to the second
heir. In the case under scrutiny, the near descendants are not at all related to the instituted
heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under

subject Codicil is in the nature of a modal institution and therefore, Article 882 of the
New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil
Code provide:
Art. 882. The statement of the object 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.
That 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.
Art. 883. When without the fault of the heir, an institution referred to in the preceding
article cannot take effect in the exact manner stated by the testator, it shall be complied
with in a manner most analogous to and in conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is known in the
law of succession as an institucion sub modo or a modal institution. In a modal
institution, the testator states (1) the object of the institution, (2) the purpose or
application of the property left by the testator, or (3) the charge imposed by the testator
upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not
affect the efficacy of his rights to the succession. On 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. The condition suspends but does not obligate; and the
mode obligates but does not suspend. To some extent, it is similar to a resolutory
condition.
From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the
testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise
clearly worded that the testatrix 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 Coscolluela Belleza, during the lifetime of the latter. However, the
testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his
institution as a devisee, dependent on the performance of the said obligation. It is clear,
though, that should the obligation be not complied with, the property shall be turned over
to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla
under subject Codicil is evidently modal in nature because it imposes a charge upon
the instituted heir without, however, affecting the efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality, an obligation
imposed upon the heir should not be considered a condition unless it clearly appears from
the Will itself that such was the intention of the testator. In case of doubt, the institution
should be considered as modal and not conditional.
Art. 863 G.R. No. L-27952 February 15, 1982

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,


vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ,
Facts:
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with
only his widow as compulsory heir. His will was admitted to probate by the Court of First
Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate.
On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the widow
en plenodominio in satisfaction of her legitime; the other part or free portion shall go
to Jorge and Roberto Ramirez en nudapropriedad. Furthermore, one third (1/3) of the
free portion is charged with the widows usufruct and the remaining two-third (2/3) with
a usufruct in favor of Wanda.
-APPEAL for the partitioning of testate estate of Jose Eugenio Ramirez (a Filipino
national, died in Spain on December 11, 1964) among principal beneficiaries:
Marcelle Demoron de Ramirez
-widow
-French who lives in Paris
-received (as spouse) and usufructuary rights over 1/3 of the free portion
Roberto and Jorge Ramirez
-two grandnephews
-lives in Malate
-received the (free portion)
Wanda de Wrobleski
-companion
-Austrian who lives in Spain
-received usufructuary rights of 2/3 of the free portion
-vulgar substitution in favor of Juan Pablo Jankowski and Horacio Ramirez
-Maria Luisa Palacios -administratix
Jorge and Roberto Ramirez opposed because:
a. vulgar substitution in favor of Wanda wrt widows usufruct and in favor of Juan Pablo
Jankowski and Horacio Ramirez, wrt to Wandas usufruct is INVALID because first heirs
(Marcelle and Wanda) survived the testator
b. fideicommissary substitutions are INVALID because first heirs not related to the
second heirs or substitutes within the first degree as provided in Art 863 CC
c. grant of usufruct of real property in favor of an alien, Wanda, violated Art XIII Sec 5
d. proposed partition of the testators interest in the Santa Cruz Building between widow
and appellants violates testators express will to give this property to them

Issue: WON there was valid substitution.


Rule:
Vulgar substitutions are valid because dying before the testator is not the only case where
a vulgar substitution can be made. Also, according to Art 859 CC, cases also include
refusal or incapacity to accept inheritance therefore it is VALID.
BUT fideicommissary substitutions are VOID because Juan Pablo Jankowski and Horace
Ramirez are not related to Wande and according to Art 863 CC, it validates a
fideicommissary substitution provided that such substitution does not go beyond one
degreefrom the heir originally instituted. Another is that there is no absolute duty
imposed on Wanda 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 subject to usufruct to be sold upon mutual agreement
ofthe usufructuaries and naked owners.
G.R. Nos. L-27860 and L-27896 March 29, 1974
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the
Testate Estate of Charles Newton Hodges
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First
Instance of Iloilo, Branch II, and AVELINA A. MAGNO
Facts:
Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952.
This will was subsequently probated in aforementioned Special Proceedings No. 1307 of
respondent court on June 28, 1957, with the widower Charles Newton Hodges being
appointed as Executor, pursuant to the provisions thereof. Previously, on May 27, 1957,
the said widower (hereafter to be referred to as Hodges) had been appointed Special
Administrator.
In her will, she left all her estate in favor of her husband, Charles Newton Hodges. Linnie
however also stated in her will that should her husband later die, said estate shall be
turned over to her brother and sister.
In December 1962, Charles died (it appears he was also domiciled here). Atty. Leon
Gellada, the lawyer of Charles filed a motion before the probate court (there was an
ongoing probate on the will of Linnie) so that a certain Avelina Magno may be appointed
as the administratrix of the estate. Magno was the trusted employee of the Hodges when
they were alive. Atty. Gellada manifested that Charles himself left a will but the same was
in an iron trunk in Charles office. Hence, in the meantime, hed like to have Magno
appointed as administratrix. Judge Venicio Escolin approved the motion.
Later, Charles 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 admininistratrix of
Linnies estate opposed the said petition. Eventually, the probate of Charles will was

granted. Eventually still, the Philippine Commercial and Industrial Bank was appointed
as administrator. But Magno refused to turn over the estate.
Magno contended that in her will, Linnie wanted Charles to turn over the property to
Linnies brother and sister and since that is her will, the same must be respected. Magno
also contended that Linnie was a Texan at the time of her death (an alien testator); that
under Article 16 of the Civil Code, successional rights are governed by Linnies national
law; that under Texas law, Linnies will shall be respected regardless of the presence of
legitimes (Charles share in the estate).
It s PCIB's contention that, viewed as a substitution, the testamentary disposition in favor
of Mrs. Hodges' brothers and sisters may not be given effect.
Issue: WON there was substitution in the will of Mrs. Hodges. - NO
Ruling:
Mrs. Hodges' will provides neither for a simple or vulgar substitution under Article 859
of the Civil Code nor for a fideicommissary substitution under Article 863 thereof. There
is no vulgar substitution therein because there is no provision for either (1) predecease of
the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the
inheritance, as required by Article 859; 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. But from these premises, it is not correct to jump to the
conclusion, as PCIB does, that the testamentary dispositions in question are therefore
inoperative and invalid.
The error in PCIB's position lies simply in the fact that it views the said disposition
exclusively in the light of substitutions covered by the Civil Code section on that subject,
(Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only
when another heir is appointed in a will "so that he may enter into inheritance in default
of the heir originally instituted," (Article 857, id.) and, in the present case, no such
possible default is contemplated. The 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
inheritance; rather, therefore, they are also heirs instituted simultaneously with Hodges,
subject, however, to certain conditions, partially resolutory insofar as Hodges was
concerned and correspondingly suspensive with reference to his brothers and sisters-inlaw.
It is partially resolutory, since it bequeaths unto Hodges the whole of her estate to be
owned and enjoyed 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 existence of any remainder of her estate then.