704 SUPREME COURT REPORTS ANNOTATED

Ramirez vs. Vda. de Ramirez

No. L-27952. February 15, 1982.*
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix,
petitioner-appellee, vs.MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and
ROBERTO RAMIREZ, legatees, oppositors-appellants.

Testate Succession, The testator cannot impose any lien, substitution, or condition on his widows
legitime.The appellants do not question the legality of giving Marcelle one-half of the estate in full
ownership. They adroit that the testators dispositions impaired his widows legitime. Indeed, under
Art. 900 of the Civil Code If the only survivor is the widow or widower, she or he shall be entitled to
one-half of the hereditary estate. And since Marcelle alone survived the deceased, she is entitled to
one-half of his estate over which he could impose no burden, encumbrance, condition or substitution
of any kind whatsoever. (Art. 904, par. 2, Civil Code.)

Same; The proposed creation by the administratrix in favor of the testators widow of a usufruct
over 113 of the free portion of the testators estate cannot be made where it will run counter to testators
express will.It is the one-third usufruct over the free portion which the appellants question and
justifiably so. It appears that the court a quo approved the usufruct in favor of Marcelle because the
testament provides for a usufruct in her favor of one-third of the estate. The court a quo erred for
Marcelle who is entitled to one-half of the estate en pleno dominio as her legitime and which is more
than what she is given under the will is not entitled to have any additional share in the estate. To give
Marcelle more than her legitime will run counter to the testators intention for as stated above his
dispositions even impaired her legitime and tended to favor Wanda.

Same; A vulgar substitution of heirs is valid even if the heir designated survives the testator
inasmuch us vulgar substitution can take place also by refusal or incapacity to inherit of the first heir.
They allege that the substitution in its vulgar aspect is void because Wanda survived the testator or
stated differently because she did not predecease the testator. But dying before the testator is not the
only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as
provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

Same; A fideicommissary substitution is void if first heir is not related in the 1st degree to the
second heir.As regards the substitution in its fideicommissary aspect, the appellants are correct in
their claim that it is void for the following reasons: The substitutes (Juan Pablo Jankowski and Horace
V. Ramirez) are not related to Wanda, the heir originally instituted. Art 863 of the Civil Code validates
a fideicommissary substitution provided such substitution does not go beyond one degree from the
heir originally instituted.

Same; Constitutional Law; The Constitutional provision which allows aliens to acquire lands by
succession does not apply to testamentary succession.We are of the opinion that the Constitutional
provision which enables aliens to acquire private lands does not extend to testamentary succession for
otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent
the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

Same; Same; An alien may be bestowed usufructuary rights over a parcel of land in the
Philippines.We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does
not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which
is proscribed by the Constitution.

APPEAL from the decision of the Court of First Instance of Manila, Branch X.

The facts are stated in the opinion of the Court.

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio
Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two
grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for substitutions.

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. In due time she
submitted an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) pro-indivisa de un terreno, con sus mejoras y edificaciones,
situado en la Escolta, Manila ........................................................... P500,000.00
Una sexta parte (1/6) pro-indivisa de dos parcelas de terreno situadas en Antipolo,
Rizal. .............. 658.34
Cuatrocientos noventa y uno (491) acciones de la Central Azucarera de la Carlota
a P17.00 por accion .........................
Diez mil ochocientos seiz (10,806) acciones de la Central Luzon Milling Co.,
disuelta y en liquidation, a P0.15 por accion ..............
Cuenta de Ahorros en el Philippine Trust Co. .............. 2,350.73
TOTAL ................................................ P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garantizada con prenda de las acciones de
La Carlota ......
VALOR LIQUIDO ........................ P507,976.97
The testamentary dispositions are as follows:
A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambos menores de edad, residentes en Manila, I.F., calle Wright, No.
1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y, en su
defecto, con sustitucion vulgar reciproca entre ambos.
El precedente legado en nuda propiedad de la participation indivisa de la finca Santa-Cruz Building, lo ordena el testador
a favor de los legatarios nombrados. en atencion a que dicha propiedad fue creation del querido padre del otorgante y por ser
aquellos continuadores del apellido Ramirez.
B.Y en usufructo a saber:

1. aEn cuanto a una tercera parte, a favor de la esposa del testador Da. Marcelle Ramirez, domiciliada en IE PECO, calle
del General Gallieni. No. 33. Seine, Francia. con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de
Wrobleski, de Palma de Mallorca, Son Rapina, Avenida de los Reyes 13.
2. b.Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da. Wanda de Wrobleski, con sustitucion
vulgar y fideicomisaria, a saber:

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de Son Rapina, Palma de Mallorca;
y en cuanto a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila,
I.F.

A pesar de las sustituciones fideicomisarias precedentemente ordinadas, las usufructuarias

nombradas conjuntamente con los nudo propietarios, podran en cualquier momento vender a tercero
los bienes objeto delegado, sin intervencion alguna de los titulares fideicomisarios.
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 pleno dominio in
satisfaction of her legitime; the other part or free portion shall go to Jorge and Roberto Ramirez en
nuda propriedad. 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.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with respect to the widows usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wandas usufruct are invalid because the
first heirs (Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to the second heirs or substitutes
within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct
over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5,
Article III of the Philippine Constitution; and that (d) the proposed partition of the testators interest
in the Santa Cruz (Escolta) Building between the widow Marcelle, and the appellants, violates the
testators express will to give this property to them. Nonetheless, the lower court approved the project
of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to
this Court.

1. 1.The widows legitime.

The appellants do not question the legality of giving Marcelle one-half of the estate in full ownership.
They admit that the testators dispositions impaired his widows legitime. Indeed, under Art. 900 of
the Civil Code If the only survivor is the widow or widower, she or he shall be entitled to one-half of
the hereditary estate. And since Marcelle alone survived the deceased, she is entitled to one-half of
his estate over which he could impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so.
It appears that the court a quo approved the usufruct in favor of Marcelle because the testament
provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who
is entitled to one-half of the estate en pleno dominio as her legitime and which is more than what
she is given under the will is not entitled to have any additional share in the estate. To give Marcelle
more than her legitime will run counter to the testators intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.

1. 2.The substitutions.

It may be useful to recall that Substitution is the appointment of another heir so that he may enter
into the inheritance in default of the heir originally instituted. (Art. 857, Civil Code.) And that there
are several kinds of substitutions, namely: simple or common, brief or compendious, reciprocal, and
fideicommissary. (Art. 858, Civil Code.) According to Tolentino, Although the Code enumerates four
classes, there are really only two principal classes of substitutions: the simple and
the fideicommissary. The others are merely variations of these two. (III Civil Code, p. 185 [1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted
in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept
the inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the
three mentioned in the preceding paragraph, unless the testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and to transmit to a second heir the whole or part of
inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided further that the fiduciary or first heir and the
second heir are living at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of
Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con substitution vulgar reciproca entre ambos. The appellants do not
question the legality of the substitution so provided.

The appellants question the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de
Wrobleski in connection with the one-third usufruct over the estate given to the widow Marcelle.
However, this question has become moot because as We have ruled above, the widow is not entitled to
any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wandas
usufruct over two-thirds of the estate in favor of Juan Pablo Jankowski and Horace V. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda survived the testator
or stated differently because she did not predecease the testator. But dying before the testator is not
the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance
as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim
that it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir
originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution provided
such substitution does not go beyond one degree from the heir originally instituted.

What is meant by one degree from the first heir is explained by Tolentino as follows:

Scaevola, Maura, and Traviesas construe degree as designation, substitution, or transmission. The
Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be
only one transmission or substitution, and the substitute need not be related to the first heir. Manresa,
Morell, and Sanchez Roman, however, construe the word degree as generation, and the present Code
has obviously followed this interpretation, by providing that the substitution shall not go beyond one
degree from the heir originally instituted. The Code thus clearly indicates that the second heir must
be related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the first
heir. These are the only relatives who are one generation or degree from the fiduciary. (Op cit, pp.
193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required
by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits that the testator contradicts the
establishment of a fideicommissary substitution when he permits the properties subject of the usufruct
to be sold upon mutual agreement of the usufructuaries and the naked owners. (Brief, p. 26.)

1. 3.The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void
because it violates the constitutional prohibition against the acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
 SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or
assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the
public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary succession. We are
of the opinion that the Constitutional provision which enables aliens to acquire private lands does not
extend to testamentary succession for otherwise the prohibition will be for naught and
meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit
a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in
favor of aliens which is proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed
as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership
and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski
and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special pronouncement as
to costs.
SO ORDERED.

Estate ordered distributed.

Notes.Will of testator is the first and principal law in the matter of testaments. (Rigor vs.
Rigor, 89 SCRA 493).

One canon in the interpretation of the testamentary provisions is that the testators intention is
to be ascertained from the words of the will, taking into consideration the circumstances as to his
intention. (Rigor vs. Rigor, 89 SCRA 493).

It is presumed that a witness to a will has the qualifications prescribed by law, unless the contrary
is established by the oppositor. (Gonzales vs. Court of Appeals, 90 SCRA 183).

Decree of adjudication in a testate proceedings is binding on the whole world. (Gallanosa vs.
Arcangel, 83 SCRA 676).

When an order of partition of the estate of the deceased becomes final, the appealed decision
declaring that appellee as the legitimate children of the deceased and entitled to the annulment of the
institution of heirs made in the probated will of the latter becomes final and executory likewise and
hence the case on appeal is moot and academic. (Ventura vs. Ventura, 77 SCRA 159).

Where submission of project of partition and distribution, with final accounting, to probate court
deemed substantial compliance with Civil Code provisions on liquidation of conjugal partnership.
(Divinagracia vs. Rovira, 72 SCRA 307).

The rule that a legitimate child cannot succeed to the estate of an illegitimate child is applicable
in other cases. (Corpus vs. Corpus, 85 SCRA 567). Thus, a half-brother who is legitimate cannot
succeed to the estate of an illegitimate child under the rules of intestacy. (Ibid.)
 Although attesting witnesses testified against the due execution of the last testament, the will may
be allowed probate if the court is satisfied from the testimony of other witness that it was executed
and attested as required by law. (Vda. de Ramos vs. Court of Appeals, 81 SCRA 393).

In order that the right of a forced heir may be limited to the completion of his legitime (instead of
the annulment of the institution of heirs), it is not necessary that what has been left to him in the will
by any title as by legacy, be granted to him in his capacity as heir. (Aznar vs. Duncan, 17 SCRA 590).

A parcel of land, which was invalidly donated by the husband to his future spouse, remained as his
property and, upon his death, should be inherited by his children of the 1st and 2nd marriages, subject
to the right of the surviving spouse. (Pacio vs. Billon, 1 SCRA 384).

Nephews and nieces alone do not inherit by right of representation (i.e., per stirpes), unless
concurring with brothers or sisters of the deceased. (Abellana-Bacayo vs. Ferraris-Borromeo, 14 SCRA
986).

o0o

VOL. 4, FEBRUARY 28, 1962 491

Crisologo vs. Singson
No. L-13876. February 28, 1962.
CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees, vs. DR. MANUEL
SINGSON, defendant-appellant.

Wills and testaments; Designation of heirs; Purpose of fideicommissary substitution.It is of the

essence of a fideicommissary substitution that an obligation be clearly imposed upon the first heir to
preserve and transmit to another the whole or part of the estate bequeathed to him, upon his death or
upon the happening of a particular event.

APPEAL from a judgment of the Court of First Instance of Ilocos Sur. Antonio, J.
The facts are stated in the opinion of the Court.

DIZON, J,:

Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo
against Manuel Singson in connection with a residential lot located at Plaridel St., Vigan, Ilocos Sur,
with an area of approximately 193 square meters, and the improvements existing thereon, covered by
Tax No. 10765-C. Their complaint alleged that Singson owned one-half pro-indiviso of said property
and that Consolacion Florentino owned the other half by virtue of the provisions of the duly probated
last will of Da. Leona Singson, the original owner, and the project of partition submitted to, and
approved by the Court of First Instance of Ilocos Sur in special Proceeding No. 453; that plaintiffs had
made demands for the partition of said property, but defendant refused to accede thereto, thus
compelling them to bring action.

Defendant's defense was that Consolacion Florentino was a mere usufructuary of, and not owner
of one-half pro-indiviso of the property in question, and that, therefore, she was not entitled to demand
partition thereof.

After trial upon the issue thus posed, the lower court rendered judgment as follows:

1. '1.Declaring that the plaintiff is a co-owner pro-indiviso with the defendant of the house and
lot described in the complaint to the extent of each of an undivided 1/2 portion thereof;
 2. "2.Ordering the aforesaid co-owners to execute an agreement of partition of the said property
within 30 days from receipt of this judgment unless it be shown that the division thereof may
render it unserviceable, in which case the provisions of Art. 498 of the New Civil Code may
be applied;
3. "3.That in the event the said parties shall fail to do so, this Court will appoint the
corresponding commissioners to make the partition in accordance with law; and
4. "4.Without special pronouncement as to costs."

From the above judgment, defendant Singson appealed.

It is admitted that Da. Leona Singson, who died single on January 13, 1948, was the owner of the
property in question at the time of her death. On July 31, 1951 she executed her last will which was
admitted to probate in Special Proceeding No. 453 of the lower court whose decision was affirmed by
the Court of Appeals in G.R. No. 3605-R. At the time of the execution of the will, her nearest living
relatives were her brothers Evaristo, Manuel and Dionisio Singson, her nieces Rosario, Emilia and
Trinidad, and her grandniece Consolacion, all surnamed Florentino.

Clause IX of her last will reads as follows:

"NOVENO.Ordeno que se de a mi nieta por parte de mi hermana mia y que al mismo tiempo vive en mi casa, y, por tanto,
bajo mi proteccion, y es la CONSOLACION FLORENTINO:

"(A). La mitad de mi casa de materiales fuertes con techo de hierro galvanizado, incluyendo la mitad de su solar, ubicado en la
Poblacion de Vigan, Ilocos Sur, Calle Plaridel, actualmente arrendada por los hermanos Fortunato, Teofilo y Pedro del appellido
Kairuz. Pero si falleciere antes o despues que yo mi citada nieta, esta propiedad se dara por partes iguales entre mis tres
hermanos Evaristo, Manuel y Dionisio, o a sus herederos forzosos en el caso de que alguno de ellas muriere antes, x x x (Exhibit
F.)"

The issue to be decided is whether the testamentary disposition above-quoted provided for
what is called sustitucion vulgar or for a sustitucion fideicomisaria. This issue is, we believe, controlled
by the pertinent provisions of the Civil Code in force in the Philippines prior to the effectivity of the
New Civil Code, in view of the fact that the testatrix died on January 13, 1948. They are the following:

"Art. 774. The testator may designate one or more persons to substitute the heir or heirs instituted in
case such heir or heirs should die before him, or should not wish or should be unable to accept the
inheritance.

"A simple substitution, without a statement of the cases to which it is to apply, shall include the
three mentioned in the next preceeding paragraph, unless the testator has otherwise provided:"

"Art. 781. Fidei-commissary substitutions by virtue of which the heir is charged to preserve and
transmit to a third person the whole or part of the inheritance shall be valid and effective, provided
they do not go beyond the second degree, or that they are made in favor of persons living at the time
of the death of the testator."

"Art. 785. The following shall be inoperative:

1. Fiduciary substitutions not made expressly, either by giving them this name or by imposing upon
the fiduciary the absolute obligation of delivering the property to a second heir." x x x.
In accordance with the first legal provision quoted above, the testator may not only designate the heirs
who will succeeed him upon his death, but also provide for substitutes in the event that said heirs do
not accept or are in no position to accept the inheritance or legacies, or die ahead of him.

The testator may also bequeath his properties to a particular person with the obligation, on the
part of the latter, to deliver the same to another person, totally or partially, upon the occurrence of a
particular event (6 Manresa, p. 1112).
 It is clear that the particular testamentary clause under consideration provides for a substitution
of the heir named therein in this manner: that upon the death of Consolacion Florentinowhether
this occurs before or after that of the testatrixthe property bequeathed to her shall be delivered ("se
dara") or shall belong in equal parts to the testatrix's three brothers, Evaristo, Manuel and Dionisio,
or their forced heirs, should anyone of them die ahead of Consolacion Florentino. If this clause created
what is known as sustitucion vulgar, the necessary result would be that Consolacion Florentino, upon
the death of the testatrix, became the owner of one undivided half of the property, but if it provided
for a sustitution fideicomisaria, she would have acquired nothing more than usufructuary rights over
the same half. In the former case, she would undoubtedly be entitled to partition, but not in the latter.
As Manresa says, if the fiduciary did not acquire full ownership of the property bequeathed by will,
but mere usufructuary rights thereon until the time came for him to deliver said property to the
fideicomisario, it is obvious that the nude ownership over the property, upon the death of the testatrix,
passed to and was acquired by another person, and the person cannot be other than the fideicomisario
(6 Manresa, p. 145).

It seems to be of the essence of a fideicommissary substitution that an obligation be clearly imposed

upon the first heir to preserve and transmit to another the whole or part of the estate bequeathed to
him, upon his death or upon the happening of a particular event. For this reason, Art. 785 of the old
Civil Code provides that a fideicommissary substitution shall have no effect unless it is made expressly
(de una manera expresa") either by giving it such name, or by imposing upon the first heir the absolute
obligation ("obligacion terminante") to deliver the inheritance to a substitute or second heir. In this
connection Manresa says:

"Para que la sustitucion sea fideicomisaria, es preciso segun el art. 781, que se ordeno to encargue al primer heredero cuando
sea tal, que conserve y, transmita a una tercera pesona to entidad el todo a parte de la herencia. O. lo que es lo mismo, la
sustitucion fideicomisaria, como declaran las resoluciones de 25 de Junio de 1895, 10 de Febrero de 1899 y 19 de Julio de 1909,
exige tres requisitos:

1. "1.oUn primer heredero llamado al goce de los bienes preferentemente.

2. "2.oObligacion claramente impuesta al mismo de conservar y, transmitir a un tercero el todo to parte del caudal.
3. "3.oUn segundo heredero.

"A estos requisitos aade la sentencia de 18 de Noviembre de 1918, otro mas, el del que el fideicomisario tenga derecho a
los bienes de la herencia desde el momento de la muerte del testador, puesto que ha de suceder a este y , no al fiduciar
"Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de ambos to de cualquiera de ellos,
asigna la parte del fallecido o fallecidos, a los herederos legitimos o a otras personas, solo existe una sustitucion vulgar, porque
falta el requisito de haberse impuesto a los primeros herederos la obligacion de conservar y , transmitir los bienes, y el articulo
789, en su parrafo primero, evige que la sustitucion sea expresa, ya dandole el testador el nombre de sustitucion fideicomisaria,
ya imponiendo al sustituido la obligacion terminante de conservar y transmitir los bienes a un segundo heredero."

A careful perusal of the testamentary clause under consideration shows that the substitution of heirs
provided for therein is not expressly made of the o f ideicommissa kind, nor does it contain a clear
statement to the effect that appellee, during her lifetime, shall only enjoy usufructuary rights over the
property bequeathed to her, naked ownership thereof being vested in the brothers of the testatrix. As
already stated, it merely provides that upon appellee's deathwhether this happens before or after
that of the testatrixher share shall belong to the brothers of the testatrix.

In the light of the foregoing, we believe, and so hold, that the last will of the deceased Da. Leona
Singson, established a mere sustitucion vulgar, the substitution Consolacion Florentino by the
brothers of the testatrix to be effective or to take place upon the death of the former, whether it
happens before or after that of the testatrix.

IN VIEW OF THE FOREGOING, the appealed judgment is affirmed, with costs.

Judgment affirmed.