G.R. No. 113725. June 29, 2000.

* default due to predecease, incapacity or renunciation,

JOHNNY S. the testatrix’s near descendants would substitute him.
RABADILLA,  petitioner, vs. COURT
1
OF What the Codicil provides is that, should Dr. Jorge
APPEALS AND MARIA Rabadilla or his heirs not fulfill the conditions
imposed in the Codicil, the property referred to shall
MARLENA   COSCOLUELLA Y BELLEZA
2

be seized and turned over to the testatrix’s near

VILLACARLOS, respondents. descendants.
Civil Law; Succession; Wills; Successional Same; Same; Same; In a fideicommissary
rights are transmitted from the moment of death of the substitution, the first heir is strictly mandated to
decedent and compulsory heirs are called to succeed preserve the property and to transmit the same later
by operation of law.—It is a general rule under the to the second heir; Without the obligation to preserve
law on succession that successional rights are clearly imposed by the testator in his will, there is no
transmitted from the moment of death of the decedent fideicommissary substitution.—In a fideicommissary
and compulsory heirs are called to succeed by substitution, the first heir is strictly mandated to
operation of law. The legitimate children and preserve the property and to transmit the same later to
descendants, in relation to their legitimate parents, and the second heir. In the case under consideration, the
the widow or widower, are compulsory heirs. Thus, instituted heir is in fact allowed under the Codicil to
the petitioner, his mother and sisters, as compulsory alienate the property provided the negotiation is with
heirs of the instituted heir, Dr. Jorge Rabadilla, the near descendants or the sister of the testatrix.
succeeded the latter by operation of law, without need Thus, a very important element of a fideicommissary
of further proceedings, and the successional rights substitution is lacking; the obligation clearly imposing
were transmitted to them from the moment of death of upon the first heir the preservation of the property and
the decedent, Dr. Jorge Rabadilla. its transmis-
Same; Same; Same; Inheritance includes all the 524
property, rights and obligations of a person, not
extinguished by his death.—Under Article 776 of the
SUPREME COURT REPORTS
New Civil Code, inheritance includes all the property, ANNOTATED
rights and obligations of a person, not extinguished by Rabadilla vs. Court of Appeals
his death. Conformably, whatever rights Dr. Jorge sion to the second heir. “Without this obligation
Rabadilla had by virtue of subject Codicil were to preserve clearly imposed by the testator in his will,
transmitted to his forced heirs, at the there is no fideicommissary substitution.” Also, the
_______________ near descendants’ right to inherit from the testatrix is
*
 THIRD DIVISION.
not definite. The property will only pass to them
1
 Was spelled interchangeably in Rollo as Ravadilla. should Dr. Jorge Rabadilla or his heirs not fulfill the
2
 Was spelled interchangeably in Rollo as Marlina. obligation to deliver part of the usufruct to private
respondent.
523
Same; Same; Same; A fideicommissary
VOL. 334, JUNE 29, 2000 substitution is therefore, void if the first heir is not
related by first degree to the second heir.—Another
Rabadilla vs. Court of Appeals important element of a fideicommissary substitution is
time of his death. And since obligations not also missing here. Under Article 863, the second heir
extinguished by death also form part of the estate of or the fideicommissary to whom the property is
the decedent; corollarily, the obligations imposed by transmitted must not be beyond one degree from the
the Codicil on the deceased Dr. Jorge Rabadilla, were first heir or the fiduciary. A fideicommissary
likewise transmitted to his compulsory heirs upon his substitution is therefore, void if the first heir is not
death. related by first degree to the second heir. In the case
Same; Same; Same; Substitution is the under scrutiny, the near descendants are not at all
designation by the testator of a person or persons to related to the instituted heir, Dr. Jorge Rabadilla.
take the place of the heir or heirs first instituted.— Same; Same; Same; Distinction between modal
Substitution is the designation by the testator of a institution and conditional testamentary disposition.—
person or persons to take the place of the heir or heirs The institution of an heir in the manner prescribed in
first instituted. Under substitutions in general, the Article 882 is what is known in the law of succession
testator may either (1) provide for the designation of as an institucion sub modo or a modal institution. In a
another heir to whom the property shall pass in case modal institution, the testator states (1) the, object of
the original heir should die before him/her, renounce the institution, the purpose or application of the
the inheritance or be incapacitated to inherit, as in a property left by the testator, or the charge imposed by
simple substitution, or (2) leave his/her property to the testator upon the heir. A “mode” imposes an
one person with the express charge that it be obligation upon the heir or legatee but it does not
transmitted subsequently to another or others, as in a affect the efficacy of his rights to the succession. On
fideicommissary substitution. the other hand, in a conditional testamentary
Same; Same; Same; In simple substitutions, the disposition, the condition must happen or be fulfilled
second heir takes the inheritance in default of the first in order for the heir to be entitled to succeed the
heir by reason of incapacity, predecease or testator. The condition suspends but does not obligate;
renunciation.—In simple substitutions, the second and the mode obligates but does not suspend. To some
heir takes the inheritance in default of the first heir by extent, it is similar to a resolutory condition.
reason of incapacity, predecease or renunciation. In Same; Same; Same; In case of doubt, the
the case under consideration, the provisions of subject institution should be considered as modal and not
Codicil do not provide that should Dr. Jorge Rabadilla
conditional.—Then too, since testamentary Rabadilla vs. Court of Appeals
dispositions are generally acts of liberality, an heir. It is essential for the validity of a
obligation imposed upon the heir should not be fideicommissary substitution that both heirs are living
considered a condition unless it clearly appears from and qualified to succeed at the time of death by the
the Will itself that such was the intention of the testator and that the substitute does not go beyond one
testator. In case of doubt, the institution should be degree from the heir originally instituted. The term
considered as modal and not conditional. “one degree” has been the subject of varied
525
interpretation.
VOL. 334, JUNE 29, 2000
PETITION for review on certiorari of a decision
Rabadilla vs. Court of Appeals of the Court of Appeals.
Same; Same; Same; In the interpretation of
Wills, when an uncertainty arises on the face of the The facts are stated in the opinion of the Court.
Will, the testator’s intention is to be ascertained from
     Romeo S. Perez for petitioners.
the words of the Will, taking into consideration the
circumstances under which it was made.—In the      Benjamin Santos & Ofelia Calcetas-Santos
interpretation of Wills, when an uncertainty arises on Law Offices for respondent Marlene C.
the face of the Will, as to the application of any of its Villacarlos.
provisions, the testator’s intention is to be ascertained      Garcia, Ines, Villacarlos, Garcia and
from the words of the Will, taking into consideration Recina Law Offices for private respondents.
the circumstances under which it was made. Such
construction as will sustain and uphold the Will in all PURISIMA, J.:
its parts must be adopted.
Same; Same; Same; A Will is a personal, This is a petition for review of the decision of the
solemn, revocable and free act by which a person Court of Appeals,  dated December 23, 1993,
3

disposes of his property, to take effect after his death. in CA-G.R. No. CV-35555, which set aside the
—Suffice it to state that a Will is a personal, solemn, decision of Branch 52 of the Regional Trial Court
revocable and free act by which a person disposes of in Bacolod City, and ordered the defendants-
his property, to take effect after his death. Since the
appellees (including herein petitioner), as heirs of
Will expresses the manner in which a person intends
how his properties be disposed, the wishes and desires
Dr. Jorge Rabadilla, to reconvey title over Lot
of the testator must be strictly followed. Thus, a Will No. 1392, together with its fruits and interests, to
cannot be the subject of a compromise agreement the estate of Aleja Belleza.
which would thereby defeat the very purpose of The antecedent facts are as follows:
making a Will. In a Codicil appended to the Last Will and
Testament of testatrix Aleja Belleza, Dr. Jorge
VITUG, J., Separate Opinion: Rabadilla, predecessor-in-interest of the herein
petitioner, Johnny S. Rabadilla, was instituted as
Civil Law; Succession; Wills; There is no a devisee of 511,855 square meters of that parcel
simple substitution that takes place where the heir of land surveyed as Lot No. 1392 of the Bacolod
originally instituted is able to succeed.—Substitution
Cadastre. The said Codicil, which was duly
is the appointment of another heir so that he may enter
into the inheritance in default of the heir originally probated and admitted in Special
_______________
instituted. Substitution is simple when the testator
designates one or more persons to substitute the heir 3
 Penned by Justice Santiago M. Kapunan (Chairman)
or heirs instituted in case the latter should die before and concurred in by Justices Minerva P. Gonzaga-Reyes
him, or should not wish, or should be incapacitated to and Eduardo G. Montenegro, (Members).
accept the inheritance, and a substitution without a
statement of the cases to which it refers shall comprise 527
all said three cases. There is no simple substitution VOL. 334, JUNE 29, 2000
that takes place where the heir originally instituted is Rabadilla vs. Court of Appeals
able to succeed. Fideicommissary substitution, on the
Proceedings No. 4046 before the then Court of
other hand, occurs when the fiduciary or first heir
instituted is entrusted with the obligation to preserve First Instance of Negros Occidental, contained the
and to transmit to a second heir the whole or part of following provisions:
the inheritance. Every fideicommissary substitution “FIRST
should be expressly made in order that it may be valid.
The term “fideicommissary substitution” need not, I give, leave and bequeath the following property
however, be used in the will; it is enough that there is owned by me to Dr. Jorge Rabadilla resident of 141 P.
a clear and unequivocal statement that one shall enjoy Villanueva, Pasay City:
usufructuary or other rights, short of naked ownership
or title, over certain property of the testator with the 1. (a)Lot No. 1392 of the Bacolod Cadastre,
obligation to preserve the property and to transmit it to covered by Transfer Certificate of Title No.
a second RT-4002 (10942), which is registered in my
526 name according to the records of the
Register of Deeds of Negros Occidental.
52 SUPREME COURT REPORTS 2. (b)That should Jorge Rabadilla die ahead of
6 ANNOTATED me, the aforementioned property and the
 rights which I shall set forth hereinbelow, (petitioner), Aurora, Ofelia and Zenaida, all
shall be inherited and acknowledged by the surnamed Rabadilla.
children and spouse of Jorge Rabadilla. On August 21, 1989, Maria Marlena
Coscolluela y Belleza Villacarlos brought a
xxx complaint, docketed as Civil Case No. 5588,
before Branch 52 of the Regional Trial Court in
FOURTH
Bacolod City, against the above-mentioned heirs
(a) It is also my command, in this my addition of Dr. Jorge Rabadilla, to enforce the provisions
(Codicil), that should I die and Jorge Rabadilla shall of subject Codicil. The Complaint alleged that the
have already received the ownership of the said Lot defendant-heirs violated the conditions of the
No. 1392 of the Bacolod Cadastre, covered by Codicil, in that:
Transfer Certificate of Title No. RT-4002 (10942),
and also at the time that the lease of Balbinito G. 1. 1.Lot No. 1392 was mortgaged to the
Guanzon of the said lot shall expire, Jorge Rabadilla Philippine National Bank and the
shall have the obligation until he dies, every year to Republic Planters Bank in disregard of
give to Maria Marlina Coscolluela y Belleza, Seventy
the testatrix’s specific instruction to sell,
(75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina
lease, or mortgage only to the near
Coscolluela y Belleza dies. descendants and sister of the testatrix.
2. 2.Defendant-heirs failed to comply with
FIFTH their obligation to deliver one hundred
(100) piculs of sugar (75 piculs export
(a) Should Jorge Rabadilla die, his heir to whom sugar and 25 piculs domestic sugar) to
he shall give Lot No. 1392 of the Bacolod Cadastre, plaintiff Maria Marlena Coscolluela y
covered by Transfer Certificate of Title No. RT-4002
(10492), shall have the obligation to still give yearly, _______________
the sugar as specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y Belleza on 4
 Annex “C,” Rollo, pp. 34-35.
the month of December of each year.
529
SIXTH VOL. 334, JUNE 29, 2000
Rabadilla vs. Court of Appeals
I command, in this my addition (Codicil) that the
Lot No. 1392, in the event that the one to whom I have
left and bequeathed, and 1. Belleza from sugar crop years 1985 up to
the filing of the complaint as mandated
528 by the Codicil, despite repeated demands
528 SUPREME COURT REPORTS ANNOTATED for compliance.
Rabadilla vs. Court of Appeals 2. 3.The banks failed to comply with the 6th
his heir shall later sell, lease, mortgage this said Lot, paragraph of the Codicil which provided
the buyer, lessee, mortgagee, shall have also the that in case of the sale, lease, or
obligation to respect and deliver yearly ONE mortgage of the property, the buyer,
HUNDRED (100) piculs of sugar to Maria Marlina lessee, or mortgagee shall likewise have
Coscolluela y Belleza, on each month of December, the obligation to deliver 100 piculs of
SEVENTY FIVE (75) piculs of Export and TWENTY sugar per crop year to herein private
FIVE (25) piculs of Domestic, until Maria Marlina respondent.
shall die, lastly should the buyer, lessee or the
mortgagee of this lot, not have respected my
command in this my addition (Codicil), Maria Marlina The plaintiff then prayed that judgment be
Coscolluela y Belleza, shall immediately seize this Lot rendered ordering defendant-heirs to
No. 1392 from my heir and the latter’s heirs, and shall reconvey/return-Lot No. 1392 to the surviving
turn it over to my near desendants, (sic) and the latter heirs of the Aleja Belleza, the cancellation of
shall then have the obligation to give the ONE TCT No. 44498 in the name of the deceased, Dr.
HUNDRED (100) piculs of sugar until Maria Marlina Jorge Rabadilla, and the issuance of a new
shall die. I further command in this my addition Certificate of title in the names of the surviving
(Codicil) that my heir and his heirs of this Lot No. heirs of the late Aleja Belleza.
1392, that they will obey and follow that should they On February 26, 1990, the defendant-heirs
decide to sell, lease, mortgage, they cannot negotiate were declared in default but on March 28, 1990
with others than my near descendants and my sister.” 4

the Order of Default was lifted, with respect to

Pursuant to the same Codicil, Lot No. 1392 was defendant Johnny S. Rabadilla, who filed his
transferred to the deceased, Dr. Jorge Rabadilla, Answer, accordingly.
and Transfer Certificate of Title No. 44498 During the pre-trial, the parties admitted that:
thereto issued in his name. On November 15, 1998, the plaintiff (private
Dr. Jorge Rabadilla died in 1983 and was respondent) and a Certain Alan Azurin, son-in-
survived by his wife Rufina and children Johnny law of the herein petitioner who was lessee of the
property and acting as attorney-in-fact of
defendant-heirs, arrived at an amicable settlement 5
 Rollo, pp. 65-66.
and entered into a Memorandum of Agreement on 531
the obligation to deliver one hundred piculs of VOL. 334, JUNE 29, 2000
sugar, to the following effect:
“That for crop year 1988-89, the annuity mentioned in Rabadilla vs. Court of Appeals
Entry No. 49074 of TCT No. 44489 will be delivered In the light of the aforegoing findings, the Complaint
not later than January of 1989, more specifically, to being prematurely filed is DISMISSED without
wit: prejudice.
75 piculs of ‘A’ sugar, and 25 piculs of ‘B’ sugar, or then SO ORDERED.” 6

existing in any of our names, Mary Rose Rabadilla y Azurin

or Alan Azurin, during December of each sugar crop year, On appeal by plaintiff, the First Division of the
in Azucar Sugar Central; and, this is considered compliance Court of Appeals reversed the decision of the trial
of the annuity as mentioned, and in the same manner will court; ratiocinating and ordering thus:
compliance of the annuity be in the next succeeding crop
“Therefore, the evidence on record having established
years. plaintiff-appellant’s right to receive 100 piculs of
That the annuity above stated for crop year 1985- sugar annually out of the produce of Lot No. 1392;
86, 1986-87, and 1987-88, will be complied in cash defendants-appellee’s obligation under Aleja Belleza’s
equivalent of the number of piculs as mentioned codicil, as heirs of the modal heir, Jorge Rabadilla, to
therein and which is as herein agreed upon, deliver such amount of sugar to plaintiff-appellant;
defendants-appellee’s admitted non-compliance with
530 said obligation since 1985; and, the punitive
530 SUPREME COURT REPORTS ANNOTATED consequences enjoined by both the codicil and the
Civil Code, of seizure of Lot No. 1392 and its
Rabadilla vs. Court of Appeals reversion to the estate of Aleja Belleza in case of such
taking into consideration the composite price of sugar non-compliance, this Court deems it proper to order
during each sugar crop year, which is in the total the reconveyance of title over Lot No. 1392 from the
amount of ONE HUNDRED FIVE THOUSAND estates of Jorge Rabadilla to the estate of Aleja
PESOS (P105,000.00). Belleza. However, plaintiff-appellant must institute
That the above-mentioned amount will be paid or separate proceedings to re-open Aleja Belleza’s estate,
delivered on a staggered cash installment, payable on secure the appointment of an administrator, and
or before the end of December of every sugar crop distribute Lot No. 1392 to Aleja Belleza’s legal heirs
year, to wit: in order to enforce her right, reserved to her by the
For 1985-86, TWENTY SIX THOUSAND TWO codicil, to receive her legacy of 100 piculs of sugar
HUNDRED FIFTY (P26,250.00) Pesos, payable on or per year out of the produce of Lot No. 1392 until she
before December of crop year 1988-89; dies.
For 1986-87, TWENTY SIX THOUSAND TWO Accordingly, the decision appealed from is SET
HUNDRED FIFTY (P26,250.00) Pesos, payable on or ASIDE and another one entered ordering defendants-
before December of crop year 1989-90; appellees, as heirs of Jorge Rabadilla, to reconvey title
For 1987-88, TWENTY SIX THOUSAND TWO over Lot No. 1392, together with its fruits and
HUNDRED FIFTY (P26,250.00) Pesos, payable on or interests, to the estate of Aleja Belleza.
before December of crop year 1990-91; and SO ORDERED.” 7

For 1988-89, TWENTY SIX THOUSAND TWO

HUNDRED FIFTY (P26,250.00) Pesos, payable on or Dissatisfied with the aforesaid disposition by the
before December of crop year 1991-92.” 5
Court of Appeals, petitioner found his way to this
However, there was no compliance with the Court via the present petition, contending that the
aforesaid Memorandum of Agreement except for Court of Appeals erred in ordering the reversion
a partial delivery of 50.80 piculs of sugar of Lot 1392 to the estate of the testatrix Aleja
corresponding to sugar crop year 1988-1989. Belleza on the basis of paragraph 6 of the Codicil,
On July 22, 1991, the Regional Trial Court and in ruling that the testamentary institution of
came out with a decision, dismissing the Dr. Jorge
_______________
complaint and disposing as follows:
“WHEREFORE, in the light of the aforegoing 6
 RTC Decision, pp. 8-9.
findings, the Court finds that the action is prematurely 7
 CA Decision, p. 14.
filed as no cause of action against the defendants has
as yet arose in favor of plaintiff. While there maybe 532
the non-performance of the command as mandated 532 SUPREME COURT REPORTS ANNOTA
exaction from them simply because they are the Rabadilla vs. Court of Appeals
children of Jorge Rabadilla, the title holder/owner of
the lot in question, does not warrant the filing of the
Rabadilla is a modal institution within the
present complaint. The remedy at bar must fall. purview of Article 882 of the New Civil Code.
Incidentally, being in the category as creditor of the The petition is not impressed with merit.
left estate, it is opined that plaintiff may initiate the Petitioner contends that the Court of Appeals
intestate proceedings, if only to establish the heirs of erred in resolving the appeal in accordance with
Jorge Rabadilla and in order to give full meaning and Article 882 of the New Civil Code on modal
semblance to her claim under the Codicil. institutions and in deviating from the sole issue
_______________ raised which is the absence or prematurity of the
cause of action. Petitioner maintains that Article
882 does not find application as there was no Under Article 776 of the New Civil Code,
modal institution and the testatrix intended a mere inheritance includes all the property, rights and
simple substitution—i.e. the instituted heir, Dr. obligations of a person, not extinguished by his
Jorge Rabadilla, was to be substituted by the death. Conformably, whatever rights Dr. Jorge
testatrix’s “near descendants” should the Rabadilla had by virtue of subject Codicil were
obligation to deliver the fruits to herein private transmitted to his forced heirs, at the time of his
respondent be not complied with. And since the death. And since obligations not extinguished by
testatrix died single and without issue, there can death also form part of the estate of the decedent;
be no valid substitution and such testamentary corollarily, the obligations imposed by the
provision cannot be given any effect. Codicil on the deceased Dr. Jorge Rabadilla, were
The petitioner theorizes further that there can likewise transmitted to his compulsory heirs upon
be no valid substitution for the reason that the his death.
substituted heirs are not definite, as the In the said Codicil, testatrix Aleja Belleza
substituted heirs are merely referred to as “near devised Lot No. 1392 to Dr. Jorge Rabadilla,
descendants” without a definite identity or subject to the condition that the usufruct thereof
reference as to who are the “near descendants” would be delivered to the herein private
and therefore, under Articles 843  and 845  of the
8 9
respondent every year. Upon the death of Dr.
New Civil Code, the substitution should be Jorge Rabadilla, his compulsory heirs succeeded
deemed as not written. to his rights and title over the said property, and
The contentions of petitioner are untenable. they also assumed his (decedent’s) obligation to
Contrary to his supposition that the Court of deliver the fruits of the lot involved to herein
Appeals deviated from the issue posed before it, private
which was the propriety of the dismissal of the _______________
_______________
10
 Article 777, New Civil Code.
8
 Art. 843. The testator shall designate the heir by his 11
 Ibid., Article 887.
name and surname, and when there are two persons having
534
the same names, he shall indicate some circumstance by
which the instituted heir may be known. 534 SUPREME COURT REPORTS ANNOTA
Even though the testator may have omitted the name of Rabadilla vs. Court of Appeals
the heir, should be designate him in such manner that there
can be no doubt as to who has been instituted, the respondent. Such obligation of the instituted heir
institution shall be valid. reciprocally corresponds to the right of private
9
 Art. 845. Every disposition in favor of an unknown respondent over the usufruct, the fulfillment or
person shall be void, unless by some event or circumstance performance of which is now being demanded by
his identity becomes certain. However, a disposition in the latter through the institution of the case at bar.
favor of a definite class or group of persons shall be valid.
Therefore, private respondent has a cause of
533 action against petitioner and the trial court erred
VOL. 334, JUNE 29, 2000 in dismissing the complaint below.
Rabadilla vs. Court of Appeals Petitioner also theorizes that Article 882 of the
complaint on the ground of prematurity of cause New Civil Code on modal institutions is not
of action, there was no such deviation. The Court applicable because what the testatrix intended
of Appeals found that the private respondent had was a substitution—Dr. Jorge Rabadilla was to be
a cause of action against the petitioner. The substituted by the testatrix’s near descendants
disquisition made on modal institution was, should there be noncompliance with the
precisely, to stress that the private respondent had obligation to deliver the piculs of sugar to private
a legally demandable right against the petitioner respondent.
pursuant to subject Codicil; on which issue the Again, the contention is without merit.
Court of Appeals ruled in accordance with law. Substitution is the designation by the testator
It is a general rule under the law on succession of a person or persons to take the place of the heir
that successional rights are transmitted from the or heirs first instituted. Under substitutions in
moment of death of the decedent  and compulsory
10
general, the testator may either (1) provide for the
heirs are called to succeed by operation of law. designation of another heir to whom the property
The legitimate children and descendants, in shall pass in case the original heir should die
relation to their legitimate parents, and the widow before him/her, renounce the inheritance or be
or widower, are compulsory heirs.  Thus, the 11
incapacitated to inherit, as in a simple
petitioner, his mother and sisters, as compulsory substitution,  or (2) leave his/her property to one
12

heirs of the instituted heir, Dr. Jorge Rabadilla, person with the express charge that it be
succeeded the latter by operation of law, without transmitted subsequently to another or others, as
need of further proceedings, and the successional in a fideicommissary substitution.  The Codicil
13

rights were transmitted to them from the moment sued upon contemplates neither of the two.
of death of the decedent, Dr. Jorge Rabadilla. In simple substitutions, the second heir takes
the inheritance in default of the first heir by
reason of incapacity, pre-decease or
renunciation.  In the case under consideration, the
14
17
 Ramirez vs. Vda. De Ramirez, 111 SCRA 704 (1982).
provisions of subject Codicil do not provide that 536
should Dr. Jorge Rabadilla default due to 536 SUPREME COURT REPORTS ANNOTA
predecease, incapacity or renunciation, the
testatrix’s near descendants would substitute him. Rabadilla vs. Court of Appeals
What the Codicil provides is that, should Dr. Art. 882. The statement of the object of the institution
or the application of the property left by the testator,
Jorge Rabadilla or his heirs not fulfill the
or the charge imposed on him, shall not be considered
conditions imposed in the as a condition unless it appears that such was his
_______________
intention.
 Ibid., Article 859.
12 That which has been left in this manner may be
 Ibid., Article 63.
13 claimed at once provided that the instituted heir or his
 Ibid., Article 859.
14 heirs give security for compliance with the wishes of
the testator and for the return of anything he or they
535 may receive, together with its fruits and interests, if he
VOL. 334, JUNE 29, 2000 or they should disregard this obligation.
Rabadilla vs. Court of Appeals Art. 883. When without the fault of the heir, an
institution referred to in the preceding article cannot
Codicil, the property referred to shall be seized
take effect in the exact manner stated by the testator, it
and turned over to the testatrix’s near shall be complied with in a manner most analogous to
descendants. and in conformity with his wishes.
Neither is there a fideicommissary substitution
here and on this point, petitioner is correct. In a The institution of an heir in the manner prescribed
fideicommissary substitution, the first heir is in Article 882 is what is known in the law of
strictly mandated to preserve the property and to succession as an institution sub modo or a modal
transmit the same later to the second heir.  In the
15 institution. In a modal institution, the testator
case under consideration, the instituted heir is in states (1) the object of the institution, (2) the
fact allowed under the Codicil to alienate the purpose or application of the property left by the
property provided the negotiation is with the near testator, or (3) the charge imposed by the testator
descendants or the sister of the testa-trix. Thus, a upon the heir.  A “mode” imposes an obligation
18

very important element of a fideicommissary upon the heir or legatee but it does not affect the
substitution is lacking; the obligation clearly efficacy of his rights to the succession.  On the19

imposing upon the first heir the preservation of other hand, in a conditional testamentary
the property and its transmission to the second disposition, the condition must happen or be
heir. “Without this obligation to preserve clearly fulfilled in order for the heir to be entitled to
imposed by the testator in his will, there is no succeed the testator. The condition suspends but
fideicommissary substitution.”  Also, the near
16 does not obligate; and the mode obligates but
descendants’ right to inherit from the testatrix is does not suspend.  To some extent, it is similar to
20

not definite. The property will only pass to them a resolutory condition. 21

should Dr. Jorge Rabadilla or his heirs not fulfill From the provisions of the Codicil litigated
the obligation to deliver part of the usufruct to upon, it can be gleaned unerringly that the
private respondent. testatrix intended that subject property be
Another important element of a inherited by Dr. Jorge Rabadilla. It is likewise
fideicommissary substitution is also missing here. clearly worded that the testatrix imposed an
Under Article 863, the second heir or the obligation on the said instituted heir and his
fideicommissary to whom the property is successors-in-interest to deliver one hundred
transmitted must not be beyond one degree from piculs of sugar to the herein private respondent,
the first heir or the fiduciary. A fideicommissary _______________
substitution is therefore, void if the first heir is  Tolentino, supra, pp. 241-242.
18

not related by first degree to the second heir.  In 17

 Ibid., p. 242.
19

the case under scrutiny, the near descendants are  Ibid.

20

not at all related to the instituted heir, Dr. Jorge  Jottings and Jurisprudence in Civil Law, Ruben
21

Rabadilla. Balane, p. 249.

The Court of Appeals erred not in ruling that 537
the institution of Dr. Jorge Rabadilla under VOL. 334, JUNE 29, 2000
subject Codicil is in the nature of a modal
institution and therefore, Article 882 of the New Rabadilla vs. Court of Appeals
Civil Code is the provision of law in point. Marlena Coscolluela Belleza, during the lifetime
Articles 882 and 883 of the New Civil Code of the latter. However, the testatrix did not make
provide: Dr. Jorge Rabadilla’s inheritance and the
_______________ effectivity of his institution as a devisee,
dependent on the performance of the said
15
 Arturo Tolentino, Commentaries and Jurisprudence on obligation. It is clear, though, that should the
the Civil Code, Volume III, p. 212. obligation be not complied with, the property
16
 Ibid., p. 212.
shall be turned over to the testatrix’s near whatever obligation petitioner had become the
descendants. The manner of institution of Dr. obligation of the lessee; that petitioner is deemed
Jorge Rabadilla under subject Codicil is evidently to have made a substantial and constructive
modal in nature because it imposes a charge upon compliance of his obligation through the
the instituted heir without, however, affecting the consummated settlement between the lessee and
efficacy of such institution. the private respondent, and having consummated
Then too, since testamentary dispositions are a settlement with the petitioner, the recourse of
generally acts of liberality, an obligation imposed the private respondent is the fulfillment of the
upon the heir should not be considered a obligation under the amicable settlement and not
condition unless it clearly appears from the Will the seizure of subject property.
itself that such was the intention of the testator. In Suffice it to state that a Will is a personal,
case of doubt, the institution should be considered solemn, revocable and free act by which a person
as modal and not conditional. 22
disposes of his property, to take effect after his
Neither is there tenability in the other death.  Since the Will expresses the manner in
25

contention of petitioner that the private which a person intends how his properties be
respondent has only a right of usufruct but not the disposed, the wishes and desires of the testator
right to seize the property itself from the must be strictly followed. Thus, a Will cannot be
instituted heir because the right to seize was the subject of a compromise agreement which
expressly limited to violations by the buyer, would thereby defeat the very purpose of making
lessee or mortgagee. a Will.
In the interpretation of Wills, when an WHEREFORE, the petition is hereby
uncertainty arises on the face of the Will, as to the DISMISSED and the decision of the Court of
application of any of its provisions, the testator’s Appeals, dated December 23, 1993 in CA-G.R.
intention is to be ascertained from the words of No. CV-35555 AFFIRMED. No pronouncement
the Will, taking into consideration the as to costs.
circumstances under which it was made.  Such 23 _______________
construction as will sustain and uphold the Will in 25
 Art. 783, NCC and Tolentino, pp. 28-29.
all its parts must be adopted. 24

Subject Codicil provides that the instituted 539

heir is under obligation to deliver One Hundred VOL. 334, JUNE 29, 2000
(100) piculs of sugar yearly to Marlena Belleza Rabadilla vs. Court of Appeals
Coscuella. Such obligation is imposed on the
SO ORDERED.
instituted heir, Dr. Jorge Rabadilla, his heirs, and
     Melo (Chairman), J., I concur as well in
their buyer, lessee, or mortgagee should they sell,
the separate opinion of Justice Vitug.
lease, mortgage or otherwise negotiate the
     Vitug, J., Please see separate (concurring
property involved. The Codicil
_______________
in result) opinion.
     Panganiban, J., I join the Separate
 Tolentino, supra, p. 242.
22 Opinion of Justice Vitug.
 Article 789, NCC.
23
     Gonzaga-Reyes, J., No part.
 Tolentino, supra, p. 34.
24

SEPARATE OPINION
538
538 SUPREME COURT REPORTS ANNOTATED VITUG, J.:
Rabadilla vs. Court of Appeals
further provides that in the event that the By virtue of a codicil appended to her will, Aleja
obligation to deliver the sugar is not respected, Belleza devised a 511, 856-square meter parcel of
Marlena Belleza Coscuella shall seize the land in Bacolod City, denominated Lot No. 1392
property and turn it over to the testatrix’s near of the Bacolod Cadastral Survey, to Jorge
descendants. The non-performance of the said Ravadilla (predecessor-in-interest of
obligation is thus with the sanction of seizure of petitioner),  carrying with it an obligation to
1

the property and reversion thereof to the deliver to private respondent, Maria Marlena
testatrix’s near descendants. Since the said Coscolluela y Belleza, one hundred piculs of
obligation is clearly imposed by the testatrix, not sugar per crop year during her lifetime. The
only on the instituted heir but also on his portions of the codicil, pertinent to the instant
successors-in-interest, the sanction imposed by controversy, read:
the testatrix in case of non-fulfillment of said “FIRST
obligation should equally apply to the instituted “I give, leave and bequeath the following property
heir and his successors-in-interest. owned by me to Dr. Jorge Rabadilla, resident of 141
Similarly unsustainable is petitioner’s P. Villanueva, Pasay City:
submission that by virtue of the amicable
settlement, the said obligation imposed by the 1. “(a)Lot No. 1392 of the Bacolod Cadastre,
Codicil has been assumed by the lessee, and covered by Transfer Certificate of Title No.
 RT-4002(10942), which is registered in my 541
name according to the records of the VOL. 334, JUNE 29, 2000
Register of Deeds of Negros Occidental.
2. “(b)That should Jorge Rabadilla die ahead of
Rabadilla vs. Court of Appeals
me, the aforementioned property and the shall then have the obligation to give the ONE
rights which I shall set forth hereinbe HUNDRED (100) piculs of sugar until Maria Marlina
shall die. I further command in this my addition
_______________ (Codicil) that my heir and his heirs of this Lot No.
1392, that they will obey and follow that should they
1
 The will, along with the codicil, was probated and admitted decide to sell, lease, mortgage, they cannot negotiate
in Special Proceedings No. 4046 before the then Court of First with others than my near descendants and my sister.” 3

Instance of Negros Occidental.

Pursuant to the above provisions of the codicil,
540
ownership of Lot No. 1392 was transferred to
540 SUPREME COURT REPORTS ANNOTATED Jorge Rabadilla and Transfer Certificate of Title
Rabadilla vs. Court of Appeals No. T-44498 was issued in his name.
Sometime in 1983, Jorge Rabadilla died,
1. low, shall be inherited and acknowledged by survived by his wife, Rufina, and their children
the children and spouse of Jorge Rabadilla. Johnny, Aurora, Ofelia and Zenaida.
On 21 August 1989, on account of the failure
x x x      x x x      x x x. of the heirs of Jorge Rabadilla to comply with the
obligation under the codicil, private respondent
“FOURTH
filed an action, docketed Civil Case No. 5588,
“(a) It is also my command, in this my addition against the Rabadilla heirs before the Regional
(codicil), that should I die and Jorge Rabadilla shall Trial Court, Branch 52, of Bacolod City for the
have already received the ownership of the said Lot reconveyance of Lot 1392 to the heirs of Aleja
No. 1392 of the Bacolod Cadastre, covered by Belleza and the cancellation of Transfer
Transfer Certificate of Title No. RT4002(10942), and Certificate of Title No. 44498 covering the
also at the time that the lease of Balbinito Guanzon of property in the name of Jorge Rabadilla.
the said lot shall expire, Jorge Rabadilla shall have the The trial court dismissed the complaint
obligation until he dies, every year to give to Maria “without prejudice.”  On appeal taken by private
4

Marlina Coscolluela y Belleza, Seventy (75) (sic) respondent to the Court of Appeals, the appellate
piculs of Export sugar and Twenty Five (25) piculs of
court set aside the appealed decision and held:
Domestic sugar, until the said Maria Marlina _______________
Coscolluela y Belleza dies.
Article 843 of the Code, attention might be invited to
“FIFTH the provisions of Article 845, in relation to Article 959, of
the Code that can permit proper identification by some
“(a) Should Jorge Rabadilla die, his heir to whom means other than the given name and surname of the
he shall give Lot No. 1392 of the Bacolod Cadastre, intended testate heirs enough to render the institution valid
covered by Transfer Certificate of Title No. RT- and effective. The ponencia, in any case, states that the
4002(10942), shall have the obligation to still give testatrix “died single and without issue.”
yearly, the sugar as specified in the Fourth paragraph
3
 Rollo, pp. 34-35.
of this testament, to Maria Marlina Coscolluela y
4
 The trial court opined that the action was premature
since no cause of action had as yet arisen in favor of private
Belleza on the month of December of each year.
respondent and noted that the banking institutions,
mortgagees of the property, were not privies to the
“SIXTH obligation of Jorge Rabadilla under the Belleza codicil.

“I command, in this my addition (Codicil) that the 542

Lot No. 1392, in the event that the one to whom I have 542 SUPREME COURT REPORTS ANNOTA
left and bequeathed, and his heir shall later sell, lease,
mortgage this said Lot, the buyer, lessee, mortgagee,
Rabadilla vs. Court of Appeals
shall have also the obligation to respect and deliver “Therefore, the evidence on record having established
yearly ONE HUNDRED (100) piculs of sugar to plaintiff-appellant’s right to receive 100 piculs of
Maria Marlina Coscolluela y Belleza, on each month sugar annually out of the produce of Lot No. 1392;
of December, SEVENTY FIVE (75) piculs of Export defendants-appellees’ obligation under Aleja Belleza’s
and TWENTY FIVE (25) piculs of Domestic, until codicil, as heirs of the modal heir, Jorge Rabadilla, to
Maria Marlina shall die, lastly should the buyer, deliver such amount of sugar to plaintiff-appellant;
lessee, or the mortgagee of this lot, not have respected defendants-appellees’ admitted noncompliance with
my command in this my addition (Codicil), Maria said obligation since 1985; and, the punitive
Marlina Coscolluela y Belleza, shall immediately consequences enjoined by both the codicil and the
seize this Lot No. 1392 from my heir and the latter’s Civil Code, of seizure of Lot No. 1392 and its
heirs, and shall turn it over to my near reversion to the estate of Aleja Belleza in case of such
descendants,  and the latter
2
non-compliance, this Court deems it proper to order
_______________ the reconveyance of title over Lot No. 1392 from the
estate of Jorge Rabadilla to the estate of Aleja Belleza.
2
 Relative to the intimation that the term “near descendants” of However, plaintiff-appellant must institute separate
the testatrix is too indefinite and opposed to the requirement of proceedings to re-open Aleja Belleza’s estate, secure
the appointment of an administrator, and distribute Lot enough that there is a clear and unequivocal
No. 1392 to Aleja Belleza’s legal heirs in order to statement that one shall enjoy usufructuary or
enforce her right, reserved to her by the codicil, to other rights, short of naked ownership or title,
receive her legacy of 100 piculs of sugar per year out over certain property of the testator with the
of the produce of Lot No. 1392 until she dies. obligation to preserve the property and to transmit
“Accordingly, the decision appealed from is SET
it to a second heir.  It is essential for the validity
11

ASIDE and another one entered ordering defendants-

appellees, as heirs of Jorge Rabadilla, to reconvey title of a fideicommissary substitution that both heirs
over Lot No. 1392, together with its fruits and are living and qualified to succeed at the time of
interests, to the estate of Aleja Belleza. death by the testator and that the substitute does
SO ORDERED.” 5 not go beyond one degree from the heir originally
instituted. The term “one degree” has been the
Petitioner, in the instant petition for review, subject of varied interpretation. One view is to the
submits that the appellate court has erred in: (1) effect that the term
ordering the reversion of Lot 1392 to the estate of _______________
Aleja Belleza on the basis of paragraph six of the
codicil, and (2) in ruling that the testamentary  Article 857, New Civil Code.
6

institution of Dr. Jorge Rabadilla is  Article 859, New Civil Code.

7

 The codicil indicates that the testatrix clearly intended

8

a modal institution within the purview of Article Jorge Rabadilla to have the ownership of the lot in question
882 of the Civil Code. Additionally, he avers that pass on to him upon her death.
respondent court has improvidently deviated from  Article 863, New Civil Code.
9

the sole issue raised which is the prematurity of  Article 864, New Civil Code.
10

the action before the court a quo. Upon the other  See Crisologo vs. Singson, 4 SCRA 491 (1962).
11

hand, respondent would have this Court sustain 544

the assailed decision of the Court of Appeals 544 SUPREME COURT REPORTS ANNOTA
contending that the appellate court is completely
justified in delving into the nature of the
Rabadilla vs. Court of Appeals
institution in the codicil, the same having a direct means one transfer, citing the Supreme Tribunal
significance on the issue of whether or not the of Spain and as advocated by eminent civilists as
complaint before the trial court has been Justices J.B.L. Reyes, R. Puno, E. Caguioa, and
prematurely filed. Private respondent adds that D. Jurado. In Ramirez vs. Ramirez,  decided on12

the 15 February 1982, the Court, however, adopted

_______________ the literal view that “one decree” means
relationship or generation as so advanced by
5
 Rollo, p. 73. equally eminent writers Dr. A. Padilla, Justice E.
543
Paras and Dr. A. Tolentino. In the subsequent
case of the Testate Estate case of Fr.
VOL. 334, JUNE 29, 2000 Aranas,  however, the Court upheld the
13

Rabadilla vs. Court of Appeals usufructuary right of the Roman Catholic

institution in question is modal within the context Church under a legacy that now renders doubtful
of Article 882 of the Civil Code which gives her the continued validity of the Ramirez doctrine.
the right to seize the subject property. The institution of Jorge Rabadilla in the
I agree with my colleagues that “substitution” Belleza codicil partook the nature of an
is not here apropos. “Substitution is the institution sub modo, rather than one of
appointment of another heir so that he may enter substitution, governed by the provisions of
into the inheritance in default of the heir Article 882 of the Civil Code. This law provides:
originally instituted.  Substitution is simple when
6
“Art. 882. The statement of the object of the
the testator designates one or more persons to institution, or the application of the property left by
substitute the heir or heirs instituted in case the the testator, or the charge imposed by him, shall not be
latter should die before him, or should not wish, considered as a condition unless it appears that such
or should be incapacitated to accept the was his intention.
inheritance, and a substitution without a statement “That which has been left in this manner may be
of the cases to which it refers shall comprise all claimed at once provided that the instituted heir or his
heirs give security for compliance with the wishes of
said three cases.  There is no simple substitution
7

the testator and for the return of anything he or they

that takes place where the heir originally may receive, together with its fruits and interests, if he
instituted is able to succeed.  Fideicommissary
8
or they should disregard this obligation.” (Emphasis
substitution, on the other hand, occurs when the supplied)
fiduciary or first heir instituted is entrusted with
the obligation to preserve and to transmit to a A mode is distinguished from a condition
second heir the whole or part of the contemplated in the rules on succession in that the
inheritance.  Every fideicommissary substitution
9 latter dictates the efficacy, either in a suspensive
should be expressly made in order that it may be or resolutory manner, of a testamentary
valid.  The term “fideicommissary substitution”
10 disposition while the former obligates the
need not, however, be used in the will; it is instituted heir to comply with the mandate made
by the testator but does not prevent the heir from
at once claiming the inheritance provided he
gives a security to ensure compliance with the
will of the testator and the return of the thing
received together with its fruits and interests,
“should (the heir) disregard this obligation.” The
obligation imposed upon the heir or legatee is
_______________

 111 SCRA 704 (1982).

12

 29 May 1987.

13

545
VOL. 334, JUNE 29, 2000
Rabadilla vs. Court of Appeals
deemed not to be a condition for his entry
forthwith into the inheritance unless a contrary
intention of the testator is evident. In case of
doubt, the institution is considered modal, rather
than conditional. Much of the variance in the
legal effects of the two classes,  however, is now
14

practically theoretical and merely conceptual.

Under the old Civil Code  an institucion sub
15

modo could be said to be more akin to an

institution sub demonstratione, or an expression
of a wish or suggestion of the testator that did not
have any real obligatory force, that matter being
left instead to the discretion of the heir, i.e.,
whether to abide by it or not. The amendatory
provisions of the new Civil Code now hardly
differentiates between the principal effect of the
non-compliance with the mode and that of the
occurrence of a resolutory condition expressed in
the will. In both instances, the property must be
returned to the estate of the decedent to then pass
on under the rules on intestacy.
ACCORDINGLY, I also vote for the dismissal
of the instant petition.
Petition dismissed, judgment affirmed.
Note.—A will is the testator speaking after his
death. (Reyes vs. Court of Appeals, 281 SCRA
277 [1997])

——o0o——