G.R. No. L-8327ANTONINA CUEVAS,plaintiff-appellant,vs.CRISPULO CUEVAS,defendant-appellee.Pedro D. Maldia for appellant.Teodoro P. Santiago for appellee.REYES, J. B. L.,J.:On September 18, 1950, Antonina Cuevas executed a notarized conveyance entitled "DonacinMortis Causa," ceding to her nephew Crispulo Cuevas the northern half of a parcel of unregistered land in barrio Sinasajan, municipality of Penaranda, Province of Nueva Ecija (Exhibit A). In the same instrument appears the acceptance of Crispulo Cuevas."Subsequently, on May 26, 1952, the donor executed another notarial instrument entitled "Revocacion de DonacionMortis Causa" (Exhibit B) purporting to set aside the preceding conveyance; and on August 26, 1952, she brought action in the Court of First Instance to recover the land conveyed, on the ground (1) that the donation beingmortis causa, it had been lawfully revoked by the donor; and (2) even it if were a donationinter vivos, the same was invalidated because (a) it was not properly accepted; (b) because the donor did not reserve sufficient property for her own maintenance, and (c) because the donee was guilty of ingratitute, for having refused to support the donor.Issues having been joined, and trial had, the Court of First Instance denied the recovery sought, and Antonina Cuevas thereupon appealed. The Court of Appeals forwarded the case to this Court because, the case having been submitted on a stipulation of facts, the appellant raised only questions of law.The first issue tendered converns the true nature of the deed "Exhibit A"; whether it embodies a donationinter vivos, or a disposition of propertymortis causarevocable freely by the transferor at any time before death.[[1]]It has been rules that neither the designationmortis causa, nor the provision that a donation is "to take effect at the death of the donor", is a controlling criterion in defining the true nature of donations (Laureta vs. Mata, 44 Phil., 668;Concepcion vs. Concepcion, 91 Phil., 823). Hence, the crux of the controversy revolves around the following provisions of the deed of donation:Dapat maalaman ni Crispulo Cuevas na samantalang ako ay nabubuhay, and lupa na ipinagkakaloob ko sa kaniya ay ako pa rin and patuloy na mamomosecion, makapagparatrabaho, makikinabang at ang iba pang karapatan sa pagmamayari ay sa akin pa rin hanggang hindo ko binabawian ny buhay ng Maykapal at ito naman ay hindi ko nga iya-alis pagkat kung ako ay mamatay na ay inilalaan ko sa kaniya.There is an apparent conflict in the expression above quoted, in that the donor reserves to herself "the right of possession, cultivation, harvesting and other rights and attributes of ownership while I am not deprived of life by the Almighty"; but right after, the same donor states that she "will not takle away" (the property) "because I reserve it for him (the donee) when I die."The question to be decided is whetehr the donor intended to part with the title to the property immediately upon the execution of the deed, or only later, when she had died. If the first, the donation is operativeinter vivos; if the second, we would be confronted with a dispositionmortis causa, void from the beginning because the formalities of testaments were not observed (new Civil Code, Arts. 728 and 828;Heirs of Bonsato vs. Court of Appeals, 50 Off. Gaz. (8), p. 3568[[2]];Tuason vs. Posadas, 54 Phil., 289; Sent. Trib. Sup. of Spain, 8 July 1943).We agree with the Court below that the decisive proof that the present donation is operative inter vivor lies in the final phrase to the effect that the donor will not dispose ortake away("hindi ko nga iya-alis" in the original) the land "because I am reserving it to him upon my death." By these words the donor expressly renounced the right to freely dispose of the property in favor of another (a right essential to full ownership) and manifested the irrevocability of the conveyance of the naked title to the property in favor of the donee. As stated in our decision in Bonsato vs. Court of Appeals,ante, such irrevocability is characteristic of donationsinter vivos, because it is incompatible with the idea of a dispositionpost mortem. Witness article 828 of the New Civil Code, that provides:ART. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.It is apparent from the entire context of the deed of donation that the donor intended that she should retain the entire beneficial ownership during her lifetime, but that the naked title should irrevocably pass to the donee. It is only thus that all the expressions heretofore discussed can be given full effect; and when the donor stated that she would continue to retain the "possession, cultivation, harvesting and all other rights and attributes of ownership," she meant only thedominium utile, not the full ownership. As the Court below correctly observed, the words "rights and attributes of ownership" should be construedejusdem generiswith the preceding rights of "possession, cultivation and harvesting" expressly enumerated in the deed. Had the donor meant to retain full or absolute ownership she had no need to specify possession, cultivation and harvesting, since all these rights are embodied in full or absolute ownership; nor would she then have excluded the right of free disposition from the "rights and attributes of ownership" that she reserved for herself.Hence, the Court below rightly concluded that the deed Exhibit A was a valid donationinter vivos, with reservation of beneficial title during the lifetime of the donor. We may add that it is highly desirable that all those who are called to prepare or notarize deeds of donation should call the attention of the donors to the necessity of clearly specifying whether, notwithstanding the donation, they wish to retain the right to control and dispose at will of the property before their death, without need of the consent or intervention of the beneficiary, since the express reservation of such right would be conclusive indication that the liberality is to exist only at the donor's death, and therefore, the formalities of testaments should be observed; while, aconverso, the express waiver of the right of free disposition would place theinter vivoscharacter of the donation beyond dispute (Heirs of Bonsato vs. Court of Appeals, 50 Off. Gaz. (8), p. 3568).The argument that there was no sufficient acceptance, because the deed "merely recites that (1) the donee has duly read all the contents of this donation; (2) that he 'shall fully respect all its terms'; and (3) that 'for the act of benevolence' he is expressing his gratitude" but there is no show of acceptance (Appellant's brief, p. 7), is without basis. To respect the terms of the donation, and at the same time express gratitude for the donor's benevolence, constitutes sufficient acceptance, If the donee did not accept, what had he to be grateful about? We are no longer under the formulary system of the Roman law, when specific expressions had to be used under paid of nullity.Also unmeritoriious is the contention that the donation is void because the donor failed to reserve enough for ther own support. As we have seen, she expressly reserved to herself all the benefits derivable from the donated property as long as she lived. During that time, she suffered no diminution of income. If that was not enough to support her, the deficiency was not dur to the donation.Finally, the donee is not rightfully chargeaboe with ingratitude, because it was expressly stipulated that the donee had a total income of only P30 a month, out of which he had to support himself, his wife and his two children. Evidently his means did not allow him to add the donor's support to his own burdens.Wherefore, the decision appealed from is affirmed. No costs in this instance, appellant having obtained leave to litigate as a pauper. So ordered.Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, and Concepcion, JJ., concur.

MOLO VS. MOLO90 Phil 37

FACTS:1. Mariano Molo died on January 24, 1941 without leaving any forced heir either in the descending or ascending line.2. His wife Juana Molo (petitioner) survived him, and by his nieces and nephew Luz, Gliceria and Cornelio, all surnamed Molo (oppositors-appellants).3. Oppositors appellants were the legitimate children of a deceased brother of the testator.4. Mariano left two wills, one executed on August 17, 1918 and another executed on June 20, 1939,5. In both the 1918 and 1939 wills Juana was instituted as his universal heir.6. The latter will contains a clause, which expressly revokes the will executed in 1918.7. Juana Molo filed in the CFI a petition seeking the probate of the will executed in 1939.8. The court rendered a decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in accordance with law.9. In view of the disallowance of the will, the widow filed another petition for the probate of the will executed by the deceased on August 18, 1918.10. The oppositors filed an opposition to the petition contending that, notwithstanding the disallowance of the 1939 will, the revocatory clause is valid and still has the effect of nullifying the prior will of 1918.11. Likewise, regardless of the revocatory clause, said will of 1918 cannot still be given effect because of the presumption that the testator himself deliberately revoked it.12. The will of 1918 was admitted to probate.13. Hence this appeal.

ISSUE:Was the admittance into probate proper?

What is the doctrine of dependent relative revocation?

HELD:A subsequent will containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of law as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void.

The doctrine of dependent relative revocation is usually applied where the testator cancels or destroys a will or executed an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails to effect for same reason.

The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will.

Even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect.

The theory on which the principle of dependent relative revocation is predicated in that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on different occasions and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

Nuguid vs Nuguid, No. L-23445, June 23, 1966; 17 SCRA 449(Special Proceedings Difference between Preterition and Disinheritance)Facts: Rosario died without descendants, legitimate or illegitimate. Surviving her were her legitimate parents Felix and Paz, and 6 brothers and sisters.Remedios, one of the sister filed in court a holographic will allegedly executed by Rosario instituting the former as the sole, universal heir of all her properties. She prayed that said will be admitted to probate and that letter of administration be issued to her.Felix and Paz opposed to the probate of the will on the ground that by the institution of Remedios as universal heir of the deceased, oppositors who are compulsory heirs in the direct ascending line were illegally preterited and that in consequence, the institution is void.Article 854 provides that preterition of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir.Petitioners contention is that the present is a case of ineffective disinheritance rather than one of preterition drawing the conclusion that Article 854 does not apply in the case at bar.Issue: WON the institution of one of the sister of the deceased as the sole, universal heir preterited the compulsory heirs.Held: Yes. Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending line her parents, and her holographic will does not explicitly disinherit them but simply omits their names altogether, the case is one of preterition of the parents, not a case of ineffective disinheritance.Preterition consists in the omission in the testators will of the forced heirs or anyone of them, either because they are not mentioned therein, or, through mentioned, they are neither instituted as heirs nor are expressly disinherited. Disinheritance, in turn, is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law.Where the one sentence will institutes the petitioner as the sole, universal heir and preterits the parents of the testatrix, and it contains no specific legacies or bequests, such universal institution of petitioner, by itself, is void. And intestate succession ensues.

Guevara v. Guevara DigestFacts:1. Victorino Guevara executed a will in 1931 wherein he made various bequests t his wife, stepchildren, wife in the 2nd marriage. He has a legitimate son Ernesto and a natural daughter Rosario. Therein, he acknowledged Rosario as his natural daughter.2. In 1933, Victorino died but his last will was never presented for probate nor was there any settlement proceeding initiated. It appeared that only his son Ernest possessed the land which he adjudicated to himself. While Rosario who had the will in her custody, did nothing to invoke the acknowledgment, as well as the devise given to her.3. Subsequently, Rosario filed an action for the recovery of her legitime from Ernesto, a portion of a large parcel of land invoking the acknowledgment contained in the will and based on the assumption that the decedent died intestate because his will was not probated. She alleged that the disposition in favor of Ernesto should be disregarded.4. The lower court and the Court of Appeals sustained Rosario's theory.Issue: Whether or not the probate of a will can be dispensed withRULING: No. Rosario's contention violates procedural law and considered an attempt to circumvent the last will and testament of the decedent. The presentation of a will to the court for probate is mandatory and its allowance is essential and indispensable to its efficacy.Suppression of the wil is contrary to law and public policy for without probate, the right of a person to dispose of his property by will may be rendered nugatory.Dela Cerna v. Potot DigestFacts:1. The spouses Bernabe Dela Serna and Gerasisa Rebabca executed a joint will where they gave two (2) parcels of land to manuela Rebaca, a niece, as they didn't have their own child. When Bernabe died, the said will was probated in 1939.2. Another petition for probate of the same will insofar as Gervasia was concerned was filed in 1952 but due to the failure of the petitioner (Manuela) to appears, the same was dismissed in 1954.3. The CFI held the petition (Bernabe probate) to be null and void as it is contrary to law. While the Court of Appeals reversed and held that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive as to the due execution of the will. Hence this appeal.Issue: Whether or not the will is validRULING: The Supreme Court affirmed the CA decision and held that Once a decree of probate becomes final in accordance with the rules of procedure, it is res judicata. THe final decree of probate entered in 1939 in the CFI of Cebu is conclusive as to the last will of Bernabe despite the fact that even then the Civil Code already decreed the invalidity of joint wills. (There was an error on the court but the decree has now become final.)The probate court committed an error of law which should have been corrected on appeals but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision. A decision which is binding upon the whole world.Nevertheless, the probate in 1939 only affected the share of Bernabe and could not include the disposition of the share of his wife which was still alive then, her properties were still not within the jurisdiction of the court. Hence, the validity of the will with respect to her, must be on her death, be re-examined and adjudicated de novo -- since a joint will is considered a separate will of each testator.Gallanosa v. ArcangelFacts:1. Florentino Gallanosa executed a will in 1938 when he was 80 years old. He owned 61 parcels of and at that time. He died in 1939 childless and survived by his brother Leon. In his will, he bequethed his 1/2 share of the conjugal estate to his second wife Tecla and if she predecease him (as what occurred), the said share shall be assigned to the spouses Gallanosa (Pedro & Corazon). Pedro is Tecla's son by her 1st marriage. He also gave 3 parcels of land to Adolfo, his protege.2. The said will was admitted to probate with Gallanosa as executor. In 1952, thjhe legal heirs filed an action for the recovery of said 61 parcels of land. The action was dismissed on the ground of res judicata. Then, 28 years after probate, another acton agaisnt Gallanosa for annulment of the will, recovery of the lands alleging fraud and deceit, was filed. As a result, the lower court set aide the 1939 decree of probate.Issue: Whether or not a will which has been probated may still be annulledRULING: No. A final decree of probate is conclusive as to the due execution of the will. Due execution means that the testator was of sound and disposing mind at the time of the execution and that he was not acting under duress, menace, fraud or undue influence. Finally, that it was executed in accordance with the formalities provided by law.The period for seeking relief under Rule 38 has already expired, hence the judgment may only be set aside on the grounds of, 1) lack of jurisdiction or lack of due process of law, and 2) the judgment was obtained by means of extrinsic collateral fraud (which must be filed within 4 years from the discovery). Finally, Art. 1410 cannot apply to wills and testament.[G.R. No. 108581.December 8, 1999]LOURDES L. DOROTHEO,petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO,respondents.D E C I S I O NYNARES-SANTIAGO,J.:May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents:Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes.The latter died in 1969 without her estate being settled.Alejandro died thereafter.Sometime in 1977, after Alejandros death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latters last will and testament.In 1981, the court issued an order admitting Alejandros will to probate.Private respondents did not appeal from said order. In 1983, they filed a Motion To Declare The Will Intrinsically Void. The trial court granted the motion and issued an order, the dispositive portion of which reads:WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government.[1]Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other.Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellants brief within the extended period granted.[2]This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989.A writ of execution was issued by the lower court to implement the final and executory Order.Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro.When petitioner refused to surrender the TCTs, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion.An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely interlocutory, hence not final in character.The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses.Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991.Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991.Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction.Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case.Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandros will that was earlier admitted to probate.Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain thestatus quoor lease of the premises thereon to third parties.[3]Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro.The petition is without merit.A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be.In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals.It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review.It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world.[4]It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time.Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion.The matters of due execution of the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed.[5]Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution.[6]It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated,[7]particularly on three aspects:whether the will submitted is indeed, the decedents last will and testament;compliance with the prescribed formalities for the execution of wills;the testamentary capacity of the testator;[8]and the due execution of the last will and testament.[9]Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery,[10]that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will.[11]The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated.[12]Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid.Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession,[13]the unlawful provisions/dispositions thereof cannot be given effect.This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void.Such determination having attained that character of finality is binding on this Court which will no longer be disturbed.Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated.Failure to avail of the remedies provided by law constitutes waiver.And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order.As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law[14]become final otherwise there will be no end to litigation.Interes rei publicae ut finis sit litium- the very object of which the courts were constituted was to put an end to controversies.[15]To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful.[16]The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence,[17]which circumstances do not concur herein.Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom.Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutesres judicatawith respect to those who were parties to the probate proceedings.Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping.It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court.[18]It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession.Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed.[19]The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will.But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy.Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will.It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy.[20]But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give -Nemo praesumitur donare.[21]No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity.If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof.If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of succession.In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void.Thus, the rules of intestacy apply as correctly held by the trial court.Furthermore, Alejandros disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his only beloved wife, is not a valid reason to reverse a final and executory order.Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect.Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouses estate.Petitioners motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir.WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.SO ORDERED.G.R. No. 72706 October 27, 1987CONSTANTINO C. ACAIN,petitioner,vs.HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.PARAS,J.:This is a petition for review on certiorari of the decision*of respondent. Court of Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.The dispositive portion of the questioned decision reads as follows:WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB No special pronouncement is made as to costs.The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the testator's property, the will provided:THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591 ACEBAfter the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEBHis motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).Petitioner raises the following issues (Memorandum for petitioner, p. 4):(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the proper remedy under the premises;(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate;(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the institution of heirs;(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable.(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio Acain and(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual.The pivotal issue in this case is whether or not private respondents have been pretirited.Article 854 of the Civil Code provides:Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not; inofficious.If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation.Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in thedirect line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally adopted child.Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid,supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally abrogating the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be respected.We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed.As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa,supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno v. Court of Appeals,supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said:We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. After all there exists a justiciable controversy crying for solution.InSaguimsim v. Lindayag(6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of dismissal.InCayetano v. Leonides,supraone of the issues raised in the motion to dismiss the petition deals with the validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v. Court of Appeals,supra; Nuguid v. Nuguid,supra).In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides,supra; Nuquid v. Nuguid,supra. The remedies of certiorari and prohibition were properly availed of by private respondents.Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals,supra) and even assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of Appeals,supra).PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.SO ORDERED.NERI v AKUTIN 74 PHIL 185MORAN; May 21, 1943FACTS - Testator Neri indicated in his will that he was leaving all of his properties by universal title to his children by his secondmarriage with preterition of his children byhis first marriage.- Eleuterio, Agripino, Agapita, Getulia, Rosario andCelerina are all Neris children by his first marriage.- The trial court annulled the institution of the heirs and declared total intestacy.- The children by the secondmarriage filed a motion for reconsideration on the grounds that:1) there is no preterition as to the children of the first marriage have received their shares in the property left by thetestator2)assuming that there has been apreterition, the effect would not be the annulment of the institution of heirs but simplythe reduction of the bequest made tothem.-The children by thesecond marriage anchor their argument on theconcept of heir whose A814 definition is deemed repealed by that of the Code of Civil Procedure.It is maintained that the word "heredero" under the Civil Code, is notsynonymous with the term "heir" under the Code of Civil Procedure, and that the "heir" under the latter Code is nolonger personally liable for the debts of the deceased aswas the "heredero" under the Civil CodeISSUES1. WON there ispreterition2. WON there should be annulment of the institution of the heirs andopen the estate to total intestacyHELD1. YES, there is preterition-According to the courts findings, none of thechildren by the first marriage received their respective shares from the testators property- Even if clause 8 of the will is invoked (said clause states that the children by his first marriage had already receivedtheir shares in his property excluding what he had given them asaid during their financial troubles and the money theyhad borrowed from him) the Court can rely only on the findings of the trial court that the inventory indicates that theproperty of Neri has remained intact and that no portion hasbeen given to thechildren of the first marriage.- Neri left his property by universal title to the children by his second marriage and did not expressly disinherit hischildren by his first marriage but did not leave anything to them.This fits the case of preterition according to A814, CCwhich provides that the institution of heirs shall be annulled and intestate succession should be declared open.2. YES- The word "heir" as used in A814 of the Civil Code may not have the meaning that it has under the Code of CivilProcedure, but this does prevent abequest from being made byuniversal title as is in substancethe subject-matter ofA814 of theCivil Code.- It may also betrue that heirs under the Code ofCivil Procedure may receive the bequest only after payment of debtsleft by the deceased and notbefore as under theCivil Code, but this may have a bearing only uponthe question as towhen succession becomes effective and can in no way destroy the fact that succession may still be by universal orspecial title.- Since a bequest maystill be made by universal title andwith preterition of forced heirs, its nullity as provided in article814 still applies there being nothing inconsistent with it in the Code of Civil Procedure.The basis for its nullity is thenature and effect of the bequest andnot its possible name under the Codeof Civil Procedure.- In addition, Secs. 755 and 756 of the Code of Civil Procedure affected A814 and A851 of the Civil Code.But thesesections have been expressly repealed by Act No. 2141, thus restoring force toA814 and A851.

NERI v. AKUTINGR No.L-47799, May 21, 194374 PHIL 185FACTS: This is a case where the testator Agripino Neri in his will left all his property by universal title to the children by his second marriage, the herein respondents, with omission of the children by his first marriage, the herein petitioner. The omission of the heirs in the will was contemplated by the testator with the belief that he had already given each of the children portion of the inheritance, particularly a land he had abandoned was occupied by the respondents over which registration was denied for it turned out to be a public land, and an aggregate amount of money which the respondents were indebted to their father.ISSUE: Should there be cancellation of the will, in view of the omission of heirs? Is there disinheritance in this case?HELD: Yes. The Court annulled the institution of heirs and declared a total intestacy on the ground that testator left all his property by universal title to the children by his second marriage, without expressly disinheriting the children by his first marriage but upon the erroneous belief that he had given them already more shares in his property than those given to the children by his second marriage. Disinheritance made without a statement of the cause, if contested, shall annul the institution of heirs in so far as it is prejudicial to the disinherited person. This is but a case of preterition which annuls the institution of heirsG.R. No. L-13876 February 28, 1962CONSOLACION 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; .1wph1.t3. 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 calledsustitucion vulgaror for asustitucion 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 assustitucion 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 asustitution 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.

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOSvs. MARCELLE D. VDA.DE RAMIREZ, ET AL. 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 portionRoberto 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 becausea. 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 testatorb. fideicommissary substitutions are INVALID because first heirs not related to the second heirs or substitutes within the first degree as provided in Art 863 CCc. grant of usufruct of real property in favor of an alien, Wanda, violated Art XIII Sec 5d. 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-LC: approved partitionISSUE: WON the partition is valid insofar asa. widows legitimeb. substitutionsc. usufruct of WandaHELD a. YES, appellants do not question because Marcelle is the widow[1]and over which he could impose no burden, encumbrance, condition or substitution of any kind whatsoever[2]-the proposed creation by the admininstratix in favor of the testators widow of a usufruct over 1/3 of the free portion of the testators estate cannot be made where it will run counter to the testators express will. The Court erred for Marcelle who is entitled to of the estate enpleno 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 disposition even impaired her legitime and tended to favor Wanda.b. 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 substitutiondoes 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.c. YES, usufruct of Wanda is VALID-Art XIII[3]Sec 5 (1935): Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except toindividuals, corporations, or associations qualified to acquire or hold land of the public domain in the Philippines.[4]The lower court upheld the usufruct thinking that the Constitution covers not only succession by operation of law but also testamentary succession BUT SC is of the opinion that this provision does not apply to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land BUT an alienmay be bestowed USUFRUCTUARY RIGHTS over a parcel of land in the Philippines. Therefore, the usufruct in favor of Wanda, although a real right, is upheld because it does not vest title to the land in the usufructuary (Wanda) and it is thevesting of title to land in favor of aliens which is proscribed by the Constitution.Decision: Marcelle (as legitime), Jorge and Roberto Ramirez (free portion) in naked ownership and the usufruct to Wanda de Wrobleski with simple substitution in favor of Juan Pablo Jankowski and Horace RamirezG.R. No. L-56249 May 29, 1987IN THE MATTER OF THE TESTATE ESTATE OF THE DECEASED REV. FATHER TEODORO ARANAS, RAMONA B. VDA. DE ARANAS, ADELIA B. ARANAS-FERNANDEZ, HEIRS OF THE LATE RODULFO B. ARANAS, ETC., ET AL.,petitioners,vs.VICENTE B. ARANAS AND HON. LUIS B. MANTA,respondents.PARAS,J.:This is a petition for certiorari which seeks to declare the orders of respondent Judge dated July 16, 1980 and September 23, 1980 as an exercise of a gross abuse of discretion amounting to lack of jurisdiction, by ruling that the properties under Group C of the testate estate of the late Fr.Teodoro Aranas are subject to remunerative legacies.The antecedent facts of the case are as follows:Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died on January 19, 1953. He had executed on June 6, 1946 his Last Will and Testament which was admitted to probate on August 31, 1956. In said Last Will and Testament, Fr. Teodoro Aranas stipulated the following:A. The return to Aniceto Aranas or his heirs of all properties acquired by Fr. Aranas from his brother Aniceto Aranas and ten (10) parcels of land described in the Will inherited by the testator from his parents.B. The return to Carmelo Aranas or his heirs of all properties acquired by Fr. Aranas from his brother Carmelo Aranas and ten (10) parcels of land described in the Will inherited by the testator from his parents.C. The special administration of the remainder of the estate of the testator by Vicente Aranas, a faithful and serviceable nephew and designating him also as recipient of 1/2 of the produce of said properties after deducting the expenses for the administration and the other 1/2 of the produce to be given to the Catholic Church for the eternal repose of the testator's soul. Said pertinent provision1reads as follows:Fourth. It is my will that the lands I had bought from other persons should be converged and placed under a "special administrator." The special administrator of these lands, for his office, should receive one half of all the produce from which shall be deducted the expenses for the administration, and the other half of the produce should be received by the Roman Catholic Church and should be spent for my soul, Vicente B. Aranas (Tingting), because he is a faithful and serviceable nephew, should be the first special administrator of said properties, without bond, until his death or until he should not want to hold the said office anymore. Anyone of the sons of my brother Carmelo Aranas can hold the said office of special administrator, and none other than they. Their father, my brother Carmelo Aranas shall be the one to decide who among them shall hold the said office, but upon the death of my said brother Carmelo Aranas, his said sons will have power to select the one among them ourselves. The special administration is perpetual.The lower court in its Order2dated November 17, 1977 ruled, upon petitioners' (in Sp. Proc. No. 303) "Motion for the Declaration of Heirs and Partition; and for Removal of the Administrator (Vicente Aranas) and/or for his Permission to Resign, and appointment of His Successor" that the "perpetual inalienability and administration of the portion of the estate of the late Rev. Fr. Teodoro Aranas, administered by Vicente Aranas, is nun and void after twenty years from January 19, 1954 ... " and declared in the same order the heirs of the late Fr. Teodoro Aranas. It also declared that "the removal of Vicente Aranas will, therefore, not serve the ends of justice and for the best interest of all the heirs, particularly with respect to the portion of the estate taken by the heirs of Aniceto Aranas, represented by the petitioners herein and the rest of the heirs of Carmelo, represented by the intervenors, coheirs of Administrator Vicente Aranas."3However, the abovesaid Order was subsequently set aside upon the "Urgent Motion for Reconsideration and to Declare Testate and Intestate Heirs of the late Fr. Teodoro Aranas," filed by the administrator Vicente Aranas on the allegation that said order was violative of due process and without legal and factual basis because only the issue for the removal of the administrator was heard and not the matter of the declaration of heirs. Thus, the lower court declared in its Order,4dated July 16, 1980 that the Order dated November 17, 1977 is "set aside and in the interest of justice, reopened in order that other heirs, successors-in-interest of Felino Aranas,5could likewise assert their claims, as in the case of the heirs of Aniceto Aranas and Carmelo Aranas."6Their Motion for Reconsideration having been denied by the lower court in its order dated September 23, 1980, petitioners now come before Us by certiorari raising the issue that the lower court erred in setting aside its order dated November 17, 1977 and in not applying the provisions on Usufruct of the New Civil Code with respect to the properties referred to as Group "C" in the Last Will and Testament.The court ruled in its questioned order that this particular group of properties (Group "C") is subject to the following:1. Remunerative legacy by way of usufruct of the net proceeds of 1/2 of the estate after deducting expenses for administration in favor of Vicente Aranas, during his lifetime and shall continue an administrator of the estate, and, who, upon his death or refusal to continue such usufruct, may be succeeded by any of the brothers of the administrator as selected by their father, Carmelo Aranas, if still alive or one selected by his sons if, he, Carmelo, is dead; Pursuant to the Will. (Article 562, 563, 564 and 603 of the New Civil Code).2. Legacy in favor of the Roman Catholic Church, particularly the Archbishop diocese of Cagayan de Oro City Represented by the Reverend Archbishop Patrick H. Cronin over one-half of the proceeds of the properties under Group "C." (Article 603, New Civil Code) and to last for a period of Fifty years from the effective date of the legacy, Article 605, New Civil Code). (Annex "L-14," p. 87, Rollo)Assailing the aforementioned ruling, petitioners rely heavily on the doctrine laid down in Art. 870 of the New Civil Code to wit:Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.A cursory reading of the English translation of the Last Will and Testament shows that it was the sincere intention and desire of the testator to reward his nephew Vicente Aranas for his faithful and unselfish services by allowing him to enjoy one-half of the fruits of the testator's third group of properties until Vicente's death and/or refusal to act as administrator in which case, the administration shall pass to anyone chosen by Carmelo Aranas among his sons and upon Carmelo's death, his sons will have the power to select one among themselves. Vicente Aranas therefore as a usufructuary has the right to enjoy the property of his uncle with all the benefits which result from the normal enjoyment (or exploitation) of another's property, with the obligation to return, at the designated time, either the same thing, or in special cases its equivalent. This right of Vicente to enjoy the fruits of the properties is temporary and therefore not perpetual as there is a limitation namely his death or his refusal. Likewise his designation as administrator of these properties is limited by his refusal and/or death and therefore it does not run counter to Art. 870 of the Civil Code relied upon by the petitioners. Be it noted that Vicente Aranas is not prohibited to dispose of the fruits and other benefits arising from the usufruct. Neither are the naked owners (the other heirs) of the properties, the usufruct of which has been given to Vicente Aranas prohibited from disposing of said naked ownership without prejudice of course to Vicente's continuing usufruct. To void the designation of Vicente Aranas as usufructuary and/or administrator is to defeat the desire and the dying wish of the testator to reward him for his faithful and unselfish services rendered during the time when said testator was seriously ill or bed-ridden. The proviso must be respected and be given effect until the death or until the refusal to act as such of the instituted usufructuary/administrator, after which period, the property can be properly disposed of, subject to the limitations provided in Art. 863 of the Civil Code concerning a fideicommissary substitution, said Article says: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 the 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 the time of the death of the testator.It is contended by petitioners that the ruling made by respondent court dated November 17, 1977 was already final and not subject to correction as what was set aside and to be reheard was only regarding the determination of additional heirs. Such contention is not worthy of credence. Respondents in their Memorandum allege and it is not disputed by petitioners that the order of November 17, 1977 has not yet become final because it was received only on January 12, 1978 by the counsel for respondent Vicente Aranas and the Motion for Reconsideration and to declare testamentary and intestate heirs dated January 17, 1978 was filed by the said respondent within the reglementary period. Besides the validity or invalidity of the usufructuary dispositions would affect the determination of heirs.As to petitioners' allegation that the order of July 16, 1980 is without basis, the record shows that during the hearing of the urgent motion for reconsideration and to declare testamentary and intestate heirs, it was proven conclusively by the said respondent Vicente B. Aranas that he was instituted as a remunerative legatee per mandate of the Last Will and Testament by way of usufructuary. Likewise the right of the Roman Catholic Church as the other usufructuary legatee for the duration of the statutory lifetime of a corporation, that is, 50 years from the date of the effectivity of said legacy, was also established.7WHEREFORE, the instant petition is hereby dismissed.SO ORDERED.