SUBSTITUTION OF HEIRS

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. 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.

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) proindiviso de un te

rreno, con sus mejoras y edificaciones, situadoen

la Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso 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 ................................................................................8,347.00

 Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-

tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad,

residentes en Manila, I.F., calle 'Alright, 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 reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca

Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en
atencion a que dicha propiedad fue creacion del querido padre del otorgante y por
ser aquellos continuadores del apellido Ramirez,

B.Y en usufructo a saber:

a. En 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,

b.Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da.
Wanda de Nrobleski con sustitucion vulgar v 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 encuanto 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 fideiconiisarias precedentemente ordinadas, las

usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en
 cualquier memento vender a tercero los bienes objeto delegado, sin intervencion
alguna de los titulares fideicomisaarios.

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 widow's
usufruct and the remaining two-thirds (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 widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's 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 testator's interest in
the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the
testator's express win 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. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership.
They admit that the testator's dispositions impaired his widow's 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 testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment 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." (111 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 reciprocal 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 Wanda's
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 tranmission 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.)

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.

Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ., concur.
Aquino J., took no part

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-38972 September 28, 1987

PAZ GARCIA vda. de MAPA, * SEGUNDO MAPA, PRISCILLA M. MONZON, TERESA MAPA, IGNACIO SALAZAR AND
JOSE SALAZAR, petitioners,
vs.
COURT OF APPEALS, LUIS HIDROSOLLO and TEODORO HIDROSOLLO, in their own behalf and as Joint Administrators of the
testate estate of Ludovico Hidrosollo, and VICTORIA ** HIDROSOLLO, CORAZON HIDROSOLLO, ROSARIO HIDROSOLLO and
MAGDALENA HIDROSOLLO, respondents.

FERNAN, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No.
40448-R entitled "Paz Garcia Vda. de Mapa, et al. vs. Luis Hidrosollo, et al." reversing the decision
of the then Court of First Instance of Manila in Civil Case No. 59566, bearing the same title.

The antecedent facts of the case are as follows:

On January 16, 1965, petitioners Paz Garcia Vda. de Mapa, et al. instituted Civil Case No. 59566
before the then Court of First Instance of Manila to recover from the estate of the late Ludovico
Hidrosollo, then the subject of Special Proceedings No. 52229 of the same court, the properties left
by the late Concepcion Mapa de Hidrosollo. They claimed that the deceased Concepcion Mapa de
Hidrosollo, in her last will and testament dated June 2, 1951 and admitted to probate in Special
Proceedings No. 46015, instituted Ludovico Hidrosollo as universal heir to the residue of her estate
with the obligation as trustee to hold the same in trust for petitioners herein who are nephews and
nieces of the deceased Concepcion Mapa de Hidrosollo and for respondents Luis, Teodoro,
Victorina, Corazon, Violets, *** Rosario and Magdalena, all surnamed Hidrosollo, who are nephews and nieces of Ludovico
Hidrosollo; that Ludovico, however, died without fulfilling the obligation so that the estate of Concepcion formed part of the estate of
Ludovico. They prayed in the alternative that judgment be rendered either a) declaring a trust to have been created in their favor and their co-
beneficiaries over the residue of the estate of Concepcion Mapa de Hidrosollo and ordering therein defendants Luis and Teodoro Hidrosollo
as administrators of the estate of Ludovico Hidrosollo, to deliver to them 6/13 of the said properties; or b) declaring the institution of Ludovico
Hidrosollo as universal heir with a provision for fideicommissary substitution in their favor and their co- beneficiaries as null and void,
declaring the residue of the estate of Concepcion Mapa de Hidrosollo to have been subject to intestate succession, declaring them to be the
sole heirs to said residue and ordering therein defendants Luis and Teodoro Hidrosollo to turn over to them the said properties.

Respondents, in their Answer, denied the existence of a trust and alleged that Ludovico Hidrosollo,
being the surviving spouse of the deceased Concepcion Mapa de Hidrosollo became the latter's
universal heir when she died without descendants or ascendants; that as such universal heir,
Ludovico stepped into the rights, title and claims of the deceased Concepcion Mapa de Hidrosollo,
so that the controverted properties became part of his own estate subject of settlement in Special
Proceedings No. 52229. They further claimed that Civil Case No. 59566 was barred by the order of
the same court sitting as a probate court in Special Proceedings No. 52229 which denied petitioners'
motion for intervention, and that petitioners, in having instituted Civil Case No. 59566 had forfeited
any benefits under the will.
In disposing of the case, the lower court ruled that a trust was created over the properties of
petitioners' claim, however, respondents had forfeited their rights thereto; and that the denial of
petitioners' motion to intervene in Special Proceedings No. 52229 did not deprive the petitioners of
their right to institute a separate action to recover what pertains to them in their own right. Thus, the
lower court ordered respondents Luis and Teodoro Hidrosollo or whoever of the rest of therein
defendants had disposition of the properties to reconvey the same in favor of petitioners, to render
an accounting of the income of said properties and to deliver to petitioners the net proceeds of such
income.

Respondents moved for a reconsideration of the decision, but were denied the relief sought. Their
appeal to the Court of Appeals proved fruitful as the appellate court reversed the decision of the
lower court and ruled instead that no trust nor fideicommissary substitution was created in
Concepcion Mapa de Hidrosollo's Will and that petitioners' claim was barred by a final judgment, i.e.,
the order denying their motion to intervene in Special Proceedings No. 52229 from which no appeal
was taken.

Hence, this present recourse, petitioners maintaining that the will of Concepcion Mapa de Hidrosollo
created a trust in their favor, not a fideicommissary substitution, and that the denial of their motion to
intervene in Special Proceedings No. 52229 did not constitute a bar to Civil Case No. 59566.

We find both contentions meritorious.

A careful perusal and scrutiny of the pertinent provisions of Concepcion Mapa de Hidrosollo's Will
reveal that she intended to create a trust in favor of both petitioners and private respondents. These
provisions read:

OCTAVA: Del resto de todos mis bienes parafernales y ganaciales, instituyo por mi
unico y universal heredero, a mis esposo Ludovico Hidrosollo, a quien, al mismo
tiempo, nombro como mi Abacea (sic) testamentario con relvacin (sic) de fianza.

NOVENA: Encargo a mi esposo que en el caso de que me abreviva (sic), disponga

de los bienes que le queden a favor de nuestros sobrinos, todos en partes iguales, a
saber:

1. Jose Agustin 8. Victorina

Mapa
Hidrosollo

2. Segundo 9. Corazon
Mapa Hidrosollo

3. Priscilla 10. Luis

Mapa Hidrosollo

4. Teresa 11. Violeta

Mapa Hidrosollo

5. Ignacio 12. Rosario

Salazar Hidrosollo

6. Jose 13.
Salazar Magdalena
Hidrosollo
 7. Teodoro
Hidrosollo

DECIMA: Los beneficiarios nombrados en la clausula que antecede tendran la

obligacion de entregar, cada ano a Salvador Genova, centras esta viva, doce
cavanes de palay, con la condicion de que dicho Salvador ayude a Luis Hidrosollo
en la recoleccion de cada cosecha. Dichos beneficiarios tendran iqualmente la
obligacion de permitir al menciado Salvador Genova a tener su casa en nuestro
solar en I laud, dentro de la poblacion de Dumarao, sin pago alguno.

UNDECIMA: Encargo igualmente a mi esposo, como heredero universal mio que, si

a su muerte, hubiese alguna dueda contraida por el durante su supervivencia sobre
mi dicha deuda sea cargada a la parte que corresponda a sus sobrinos por
consagunidad todos appellidados Hidrosollo, y no debera en mio alguno afectar la
participacion de mis sobrinos, cuatro de ellos appellidados Mapa y dos appellidados
Salazar.

xxx xxx xxx

DECIMA TERCERA: Es tambien mi voluntad la desque los bienes permanezcan en

todo tiempo en comunidad, y que los beneficiarios se abstengan an absoluto de
venderos o gravarlos en cualquier forma, en respeto a la memoria de sus tios que
solo miran el proprio bien de sus dichos sobrinos.

xxx xxx xxx

DECIMA QUINTO: Encargo a mis sobrinos nombrados en esta testamento que la

administracion de los bienes de la comunidad sea encomendada a Ignacio Salazar y
a Luis Hidrosollo conjuntamente, y en el caso de que ambos o cualquiera de ellos no
pudiere por cualquier motive, complier con el cometido, que dicha administracion se
ponga en manos de los sobrinos, uno del groupo Mapa o Salazar y el otro del grupo
Hidrosollo. (pp. 58-59, Rollo).

Thus, under paragraph 8 of the Will, Ludovico Hidrosollo was instituted as sole and universal heir to
the rest of the properties not covered by the legacies in the preceding paragraphs. Under paragraph
9, however, said Ludovico Hidrosollo was charged (encargo) with the obligation to deliver the rest of
the estate in equal parts to the Mapa, Salazar and Hidrosollo nephews and nieces, who, as
beneficiaries, were directed to deliver annually to one Salvador Genova, during his lifetime, 12
cavans of palay on the condition that the latter assist Luis Hidrosollo in each harvest. Said
beneficiaries were likewise required to allow said Salvador Genova to maintain his house on a parcel
of land situated at Ilaud, Municipality of Dumarao, without payment of any compensation (Par. 10 of
the Will).

In paragraph 11 of the same Will, the testatrix expressly provided that any obligations which her
husband might incur after her death, shall be charged against the share corresponding to the
Hidrosollo nephews and nieces and in no case shall the participation of her own nephews and
nieces be charged with said obligations. She likewise expressed the wish that all her properties
should always remain in co-ownership among her beneficiaries, who should abstain from selling or
encumbering the same in any manner whatsoever (par. 13) and that the same be administered
jointly by Ignacio Salazar and Luis Hidrosollo, or in case of their inability, by a nephew or niece from
each of the two groups (par. 15).
Although the word "trust" itself does not appear in the Will, the testatrix's intent to create one is
nonetheless clearly demonstrated by the stipulations in her Will. In designating her husband
Ludovico Hidrosollo as universal and sole heir with the obligation to deliver the properties to
petitioners and private respondents, she intended that the legal title should vest in him, and in
significantly referring to petitioners and private respondents as "beneficiarios," she intended that the
beneficial or equitable interest to these properties should repose in them. To our mind, these
designations, coupled with the other provisions for co-ownership and joint administration of the
properties, as well as the other conditions imposed by the testatrix effectively created a trust in favor
of the parties over the properties adverted to in the Will. "No particular words are required for the
creation of an express trust, it being sufficient that a trust is clearly intended. " (Art. 1443, Civil Code
of the Philippines).

However, we must not lose sight of the fact that as the surviving spouse of the testatrix, Ludovico
Hidrosollo was entitled to a legitime of one-half (1/2) of her hereditary estate. As that portion is
reserved by law for the compulsory heirs, no burden, encumbrance, condition or substitution of any
kind whatsoever may be imposed upon the legitime by the testator. (Art. 904, second
paragraph, Ibid) The trust created by Concepcion Mapa should therefore be, as it is hereby declared
to be effective only on the free portion of her estate, i.e., that portion not covered by Ludovico
Hidrosollo's legitime.

Anent the issue of res judicata, We rule that the order denying petitioners' motion for intervention in
Special Proceedings No. 52229 did not constitute an adjudication on the merits and therefore could
not operate as a bar to Civil Case No. 59566.

The reason given by the probate court for denying petitioners 'motion for intervention is as follows:

... that there is no fideicommissary substitution because the testatrix did not impose
upon her spouse the absolute obligation to deliver the property to said petitioners.
When the testatrix provided in her will that her husband dispose of in favor of the
petitioners his remaining properties it only shows that he was not absolutely
obligated to preserve and transmit to the petitioners the properties by him acquired
under the will of his deceased wife. If the testatrix intended to entrust the property to
her husband with the obligation to preserve and to transmit the remaining properties
to the petitioners, she could have said so in an express manner. However, even
assuming that Clause 9 could be interpreted to he a fideicommissary substitution,
such substitution can not be given effect in the face of an opposition and in view of
Art, 863 of the Civil Code of the Philippines, requiring that substitution must not go
beyond one degree from the heir originally instituted. It will be noticed that the
second heirs instituted are merely "sobrinos" of the fiduciary or first heir (surviving
spouse). Upon these facts, the Court is of the opinion that the movants for
intervention do not have a legal interest in the estate under the present
administration. (pp. 50-51, Record on Appeal, p. 101, Rollo).

Since the denial order was anchored primarily on the nonexistence of, or the ineffectivity of a
fideicommissary substitution, and did not resolve the issue of trust alleged by petitioners, said order
cannot be considered an adjudication on the merits of petitioners' claim against the estate.

WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 40448-A is hereby reversed.
Private respondents Luis and Teodoro Hidrosollo or their successors as administrators of the estate
of Ludovico Hidrosollo are hereby ordered to deliver to petitioners their lawful shares in the trust
constituted over the free portion of the estate of Concepcion Mapa. Said Luis and Teodoro
Hidrosollo or their successors are further ordered to render an accounting of the income of the
properties pertaining to petitioners and to deliver to the latter the net proceeds of such income.

No pronouncement as to costs.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-13876 February 28, 1962

CONSOLACION FLORENTINO DE CRISOLOGO, ET AL., plaintiffs-appellees,

vs.
DR. MANUEL SINGSON, defendant-appellant.

Felix V. Vergara for defendant-appellant.

B. Martinez for plaintiffs-appellees.

DIZON, J.:

Action for partition commenced by the spouses Consolacion Florentino and Francisco Crisologo
against Manuel Singson in connection with a residential lot located a 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. 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. 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; .1w ph1.t
 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. 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 Consolation, 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 materials 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 murieie antes ... (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." ....
In accordance with the first legal provision quoted above, the testator may not only designate the
heirs who will succeed 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 Florentino whether this
occurs before or after that of the testatrix the 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 o
encargue al primer heredero, cuando sea tal, que conserve y transmita a una tercera
persona o 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.o Un primer heredero llamado al goce de los bienes preferentemente.

2.o Obligacion claramente impuesta al mismo de conservar y transmitir a un tercero el todo

o parte del caudal.

3.o Un segundo heredero.

A estos requisitos anade 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 fiduciario.

Por tanto, cuando el causante se limita a instituir dos herederos, y por fallecimiento de
ambos o 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 fideicommissary 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 death whether this happens before or after
that of the testatrix her 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.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and
De Leon, JJ., concur.

Prohibition to Alienate the Inheritance

SECOND DIVISION

[G.R. NO. 134278. August 7, 2002]

PFC RODOLFO RODRIGUEZ, petitioner, vs. THE HON. COURT OF

APPEALS, THE DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (FORMERLY DIRECTOR GENERAL,
INTEGRATED NATIONAL POLICE), NAPOLCOM, and ITS
COMMISSIONERS, AND THE HON. SECRETARY OF THE DILG IN
HIS CAPACITY AS THE NAPOLCOM CHAIRMAN, respondents.

DECISION
QUISUMBING, J.:

This petition for review, under Rule 45 of the Rules of Court, seeks the reversal of the
decision of the Court of Appeals in CA-GR No. SP 40504. Promulgated on October 22,
1997, said decision dismissed herein petitioners special civil action for certiorari and
mandamus for lack of merit. Petitioner also assails the appellate courts resolution of May
27, 1998, denying his motion for reconsideration.
 The facts of this case, as culled from the records, are as follows:
On May 24, 1990, the Philippine Constabulary-Integrated National Police (PC-INP),
now Philippine National Police or PNP, launched OPLAN AJAX to minimize, if not entirely
eliminate, the extortion activities of traffic policemen at the vicinity of Guadalupe Bridge,
Makati, Metro Manila.
On July 5, 1990, at about three oclock in the afternoon, two operatives of OPLAN
AJAX, namely, 2LT Federico Bulanday, PC and Intelligence Agent Angelito C. Leoncio,
both members of the Counter-Intelligence Group (CIG) stationed at Camp Crame,
Quezon City, were on board a car with Plate No. NDK-238. They were traveling along
J.P. Rizal Street, Makati, when they were flagged down by three policemen in
uniform. These were petitioner PFC Rodolfo Rodriguez, PFC Arsenio Silungan, and PFC
Rolando Pilandi. All were members of the Metropolitan Traffic Command assigned with
the Makati Police Station.
Upon pulling up, Bulanday and Leoncio were informed by the three policemen that
they had violated traffic regulations. The three policemen demanded money. Bulanday
and Leoncio handed over cash amounting to one hundred pesos consisting of two P20
bills, one P10 bill, and one P50 bill. The bills were marked with ultraviolet fluorescent
powder.
On seeing what happened, other CIG operatives who were behind the vehicle of
Bulanday and Leoncio immediately swooped down on the three policemen. However,
they were able to arrest only petitioner and PFC Silungan. PFC Pilandi was able to escape
by commandeering a private vehicle at gunpoint.
Petitioner Rodriguez and PFC Silungan were then brought to the PC Crime
Laboratory at Camp Crame. A physical examination was conducted on their persons.
Both were found positive for the presence of ultraviolet fluorescent powder. The P50 bill,
which formed part of the entrapment money, was recovered from PFC Silungan while the
two P20 bills were retrieved from petitioner.
An administrative case for grave misconduct was subsequently filed against
Rodriguez, Silungan, and Pilandi, who was at large, with the National Police Commission
or NAPOLCOM. Docketed as Adm. Case No. 90-80, the case was assigned to Atty.
Narzal B. Mallares as hearing officer. A second administrative case was filed with
NAPOLCOM against the three erring police officers for their summary dismissal. A charge
for robbery/extortion was filed with Headquarters, PC-INP. It was docketed as Adm. Case
No. 01-91 and assigned to P/Major Efren Santos as Summary Hearing Officer.
On February 7, 1991, then PNP Chief Major General Cesar P. Nazareno issued
Special Order No. 35 summarily dismissing Rodriguez, Silungan, and Pilandi from the
police force.
On March 27, 1991, petitioner appealed the summary dismissal to the NAPOLCOM
National Appellate Board. He alleged that the summary dismissal proceedings violated
his right to due process. He claimed that only a preliminary inquiry had been conducted
by the NAPOLCOM hearing officer and that he had not been afforded a chance to present
his side.
 In the meantime, the case against petitioner and his companions for robbery/extortion
was filed by PC-INP with the public prosecutors office of Makati. The investigating
prosecutor, however, subsequently recommended the dismissal of the complaint on the
ground that [t]he scenarios of the arresting officers left so much to be desired.[1]
On November 5, 1992, the NAPOLCOM National Appellate Board dismissed the
appeal of petitioner in the summary dismissal case. On March 29, 1993, petitioner filed a
motion for reconsideration, but the NAPOLCOM denied it on March 11, 1996.
Aggrieved, petitioner elevated his case to the Court of Appeals by way of certiorari
and mandamus. Petitioner contended that the act of the PNP Director General in
summarily dismissing him from the service, while Adm. Case No. 90-80 involving the
same incident complained of was yet pending before the NAPOLCOM, was clearly with
grave abuse of discretion and in excess of jurisdiction.
On October 22, 1997, the appellate court denied the petition for lack of merit.
Petitioner filed a motion for reconsideration of the appellate courts decision, but it was
denied on May 27, 1998.
On July 13, 1998, petitioner filed the instant petition for review under Rule 45, raising
as sole issue:

WHETHER OR NOT, THE NOMINAL RESPONDENT COURT OF APPEALS

CORRECTLY DISMISSED THE PETITION FOR CERTIORARI AND
MANDAMUS UNDER THE PREVAILING FACTS AND CIRCUMSTANCES
ABOVE-CITED AND BASED UPON THE THEORY OF GRAVE ABUSE OF
DISCRETION AND LACK ON (SIC) EXCESS OF JURISDICTION AT POINT
WHEN THERE WAS NO APPEAL OR IF IT WAS STILL AVAILABLE, THE
SAME WAS NOT ANYMORE ADEQUATE AND SPEEDY? [2]

Before us, Rodriguez contends that the Court of Appeals committed an error of law
when it found that petitioners right to due process, instead of having been breached, was
observed to the utmost.[3] More specifically, petitioner contends that the Court of Appeals
erred when it observed that:

Since the petitioner admittedly received on April 15, 1996, a copy of the Resolution
denying his motion for the reconsideration of the adverse Decision of the
NAPOLCOM rendered by Secretary Alunan and Commissioners Guillermo Enriquez,
Jr. and Federico S. Commandante, his remedy was to appeal to the Civil Service
Commission. We cannot thus entertain his present original action for certiorari and
mandamus for these remedies cannot be resorted to as a substitute for appeal,
especially so in this case where the petitioner had wasted two (2) chances of
appealing, first, to the CSC; and then, to this Court.

But even assuming that instant recourse is proper, still we are not prepared to hold that
the petitioner was denied his right to due process by the respondents. Due process was
designed to afford an opportunity to be heard, not that an actual hearing should always
and indispensably be heard. As applied to administrative proceedings, the essence of
due process is an opportunity to explain ones side or an opportunity to seek a
reconsideration of the action or ruling complained of.

xxx

A reading, however, of the decision denying his appeal from the summary dismissal
order of PNP Chief Nazareno demonstrates that the petitioner fully ventilated his
defenses in his appeal(Citations omitted.)[4]

xxx

The only issue for determination is whether or not the Court of Appeals erred when it
dismissed the petition for certiorari and mandamus filed by petitioner PFC Rodolfo
Rodriguez.
In Republic v. Asuncion, 231 SCRA 211 (1994), we held that the civilian character of
the PNP is unqualified, unconditional, and all embracing.[5] Members of the PNP are
deemed civilian personnel of the government.[6] Police officers and personnel are part of
the civil service. This is expressly recognized by R.A. No. 6975[7] when it provided for the
applicability of civil service laws to all its personnel in Section 91 thereof, which states:

SEC. 91. Application of Civil Service Laws. The Civil Service Law and its
implementing rules and regulations shall apply to all personnel of the Department.

The Civil Service Law referred to in Section 91 of R.A. No. 6975 is Subtitle A, Title I,
Book V of the Administrative Code of 1987.[8] The procedure for dismissal is outlined in
Section 47 (2) of this subtitle. Thus:

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decisions shall be final in case the penalty imposed is suspension for not more than
thirty days or fine in an amount not exceeding thirty days salary. In case the decision
rendered by a bureau or office head is appealable to the Commission, the same may be
initially appealed to the department and finally to the Commissionand pending appeal,
the same shall be executory except when the penalty is removal, in which case the
same shall be executory only after confirmation by the Secretary concerned.
(Emphasis supplied.)

Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of
1987 provides:[9]
SEC. 31. Except as otherwise provided by the Constitution or by law, the Commission
shall have the final authority to pass upon the removal, separation and suspension of
all officers and employees in the civil service and upon all matters relating to the
conduct, discipline and efficiency of such officers and employees.

SEC. 32. The Secretaries and heads of agencies and instrumentalities, provinces, cities
and municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction. Their
decisions shall be final in case the penalty imposed is suspension for not more than
thirty (30) days or fine in an amount not exceeding thirty (30) days salary. In case the
decision rendered by a bureau or office head is appealable to the Commission, the
same may be initially appealed to the department, then to the Merit Systems
Protection Board, and finally, to the Commission and pending appeal, the same shall
be executory except when the penalty is removal, in which case the same shall be
executory only after confirmation by the Secretary concerned.

Clearly, where a police officer is dismissed by the PNP Director General and the
dismissal is affirmed by the NAPOLCOM National Appellate Board, the proper remedy is
to appeal the dismissal with the DILG Secretary. That the NAPOLCOM Chairman is also
the DILG Secretary is of no moment, for under the aforecited laws and regulations, only
the DILG Secretary can act on the appeal. Besides, what is involved here is not the sole
act of the NAPOLCOM Chairman, but the decision of the Commission. Should the DILG
Secretarys decision prove adverse to appellant, then he as the aggrieved party may bring
an appeal to the Civil Service Commission. In instances where the CSC denies the
appeal, the remedy under R.A. No. 7902[10] would be to appeal the adverse decision to the
Court of Appeals. In the instant case, petitioner had three opportunities to appeal the
decision of the NAPOLCOM. He chose not to avail of them, but instead opted to file an
action for certiorari and mandamus with the appellate court.
Thus, we are in agreement with the Court of Appeals when it observed that there
were lapses in procedure which can adversely affect the fate of the instant petition. [11]
Neither certiorari[12] nor mandamus can substitute for appeal where the latter is the
proper remedy. The extraordinary remedies of certiorari, prohibition, and mandamus will
lie only when there is no appeal or any plain, speedy, and adequate remedy in the
ordinary course of law.[13] The Court of Appeals committed no reversible error of law in
dismissing petitioners special civil action for certiorari and mandamus.
Petitioner cannot now claim that he was not afforded due process by the
NAPOLCOM. In administrative proceedings, the filing of charges and giving reasonable
opportunity for the person so charged to answer the accusations against him constitute
the minimum requirements of due process.[14] The essence of administrative due process
is the opportunity to be heard.[15] As long as a party was given the opportunity to defend
his interests in due course, he was not denied due process.[16]
In the instant case, a scrutiny of the NAPOLCOM decision denying petitioners appeal
from the PNP Chiefs order of dismissal clearly shows that petitioner was afforded an
opportunity to present his side and defend his interests. Thus NAPOLCOM expressly
held:

In his present appeal, appellant Rodriguez raised the following issues:

1) That he was a victim of a frame-up and;

2) That he was denied due process.

xxx

On the second issue, records show that, contrary to his allegation, respondent-
appellant Rodriguez as well as respondent-appellant Silungan were afforded
opportunity to be heard. In fact during the summary dismissal proceedings, they
submitted their respective counter-affidavits to disprove the accusation leveled against
them, thus; respondent-appellant and his co-respondent were not denied their
constitutional right to due process.[17]

Furthermore, lack of due process cannot be invoked where a party was given the
chance to be heard on his motion for reconsideration.[18] The resolution denying petitioners
motion for reconsideration clearly shows that petitioner was given every opportunity to air
his side, thus:

In his herein Motion for Reconsideration, respondent-appellant, alleged, inter-alia, the

following:

1. That his innocence had been established before the City Prosecutors Office of
Makati, when the said office dismissed for lack of evidence sufficient to establish a
probable cause the case filed against him, which arose from the same incident subject
of his summary dismissal case; and

2. That he is pleading for pity and compassion in the name of his future and his
family.

As we have stated in the Decision, which is now under review, this Commission
affirmed the summary dismissal from the service of herein respondent-appellant,
because he was caught in the act of committing robbery extortion in an entrapment
operation and, when subjected to laboratory examination, was found positive with
ultraviolet fluorescent powder on both palmary portions of his hands, face and arms,
including his left pants pocket, where pieces of P20.00 bills were found when
searched.
As we have ruled in a long line of cases, amply supported by legal jurisprudence, the
dismissal of the criminal case will not necessarily result in the exoneration of the
respondent in the corresponding administrative action, since they are separate and
distinct both in purpose and in the quantum of evidence required to warrant a finding
of guilt.
[19]

All these lead us to conclude that petitioners claim of denial of due process has no
leg to stand on. His present petition is clearly without merit.
WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals
dated October 22, 1997, and its resolution dated May 27, 1998, in CA-G.R. No. SP 40504,
are hereby AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, and Corona, JJ., concur.