FIDEICOMMISSARY

“It is a 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. It
shall be valid 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” (NCC, Art. 863).

Elements:

1. There must be a first heir or fiduciary who takes the property

upon the testator’s death;

2. An absolute obligation is imposed upon the fiduciary to

preserve and to transmit to a second heir the property at a
given time;

3. There is a second heir who takes the property subsequently

from the fiduciary and must be one degree from the first heir;
and

4. The first and second heir must both be living and qualified at
the time of the death of the testator.

NOTE: It should be imposed on the free portion and not on the

legitime. Fideicommissary substitution can never burden the
legitime (NCC, Art. 864).

What are the limitations imposed by law on fideicommissary?

The following:

a. The substitution must not go beyond one degree from the

heir originally instituted (Art 863).

b. The Fiduciary (first heir) and the Fideicommissary (second

heir) must be living at the time of death of the testator;

c. The Substitution must not burden the legitime of the

compulsory heirs (Art 864);
d. The substitution must be made expressly (Art 865)
e. Fideicommissary is limited to one transmission only, such
that, after the first, there can be no second fideicommissary
substitution. Notably, the fideicommissary heir, may also
exercise fideicommissary substitution, but only with respect
to his or her legitime.

Meaning of “one degree”

It refers to the degree of relationship; it means “one

generation”. As such, the fideicommissary can only be either a
parent or child of the first heir (Palacios v. Ramirez, G.R. No. L-
27952, February 15, 1982).

The relationship is always counted from the first heir. However,

fideicommissary substitutions are also limited to one
transmission. There can only be one fideicommissary
transmission such that after the first, there can be no second
fideicommissary substitution.

Example of Fideicommissary:

1. RAYMOND, single, named his sister RUFFA in his will as a

devisee of a parcel of land which he owned. The will
imposed upon RUFFA the obligation of preserving the land
and transferring it, upon her death, to her illegitimate
daughter SCARLET who was then one year old. RAYMOND
later died, leaving behind his widowed mother, PRECIOUS,
together with RUFFA and SCARLET.

A. Is there a valid FIDEICOMMISSARY SUBSTITUTION in this

case?
B. Suppose SCARLET predeceases RUFFA, who then inherits?

Suggested answer:

A. In this case, there is a valid designation of fideicommissary,

because the same limitation, which does not extend beyond
one degree is observed.

B. Ruffa will inherit the property as SCARLET’S heir. Scarlet

acquires a right to the succession from the time of
RAYMOND’S death, even though she should predecease
RUFFA (Art 866)
2. M, single, named his sister N in his will, as a devisee over a
certain parcel of land that he owned, with the obligation of
preserving the land and transferring it, upon N's death, to
her illegitimate daughter O, who was then only a year old.
Is the condition imposed on N to preserve the land and to
transmit it upon her death to O a valid case of
fideicommissary substitution? Explain. (3%) (2019 BAR
exam)

Suggested answer:
Yes. There is a valid fideicommissary substitution in the case at
bar. For a fideicommissary substitution to be valid it must
contain the following requisites:
1. That the institution does not go beyond one degree from the
heir originally instituted;
2. That the substitution be expressly made;
3. That both the fiduciary and beneficiary be living at the time of
the testator’s death;
4. That it should be imposed on the free portion and not on the
legitime.
In the instant case all the requisites are present thus there is a
valid fideicommissary substitution.

FIDEICOMMISSARY V. TRUSTEE

A. As to constitution or designation: A fiduciary can only be

designated expressly by means of will, while a trustee may
be designated either expressly through acts which may be
designated either expressly through acts which may be
either inter vivos or mortis causa or impliedly by operation
of law;

B. As to right of enjoyment: A fiduciary is entitled to all of the

rights of a usufructuary, while a trustee has no usufructuary
right over the property which he holds in trust;

C. As to right of disposition: A fiduciary may alienate his right

or usufruct over the property but always subject to his
 obligation of preserving and transmitting it to a second heir,
while a trustee cannot alienate anything whatsoever;

D. As to obligations: while essentially both have the same

obligations of preservation and transmission, the obligation
of the latter is broader because it extends not only to the
property itself but also to the fruits.

RESERVA TRONCAL

“Is a system of reserve by virtue of which an ascendant who

inherits from his descendant any property which the latter may
have acquired by gratuitous title from another ascendant, or a
brother or a sister, is obliged to reserve such property as he may
have acquired by operation of law for the benefit of relatives who
are within the 3rd degree and who belong to the line from which
said property came”. (Art 891, NCC)

What are the personal elements of Reserva Troncal?

a. The ascendant, brother or sister, otherwise known as the

origin of the property, from whom the descendant
propositus has acquired the property by gratuitous title;

b. the descendant propositus, from whom the ascendant-

reservista in turn had acquired the property by operation of
law;

c. the ascendant-reservista who is obliged to reserve the

property; and

d. the relatives of the propositus, otherwise know as the

reservatarios, who are within the 3rd degree and who belong
to the line from which the property came and for whose
benefit the reservation is constituted.

Q: Esteban and Martha had four (4) children: Rolando, Jun,

Mark, and Hector. Rolando had a daughter, Edith, while Mark
had a son, Philip. After the death of Esteban and Martha, their
three (3) parcels of land were adjudicated to Jun. After the
death of Jun, the properties passed to his surviving spouse
Anita, and son Cesar. When Anita died, her share went to her
son Cesar. Ten (10) years after, Cesar died intestate without
any issue. Peachy, Anita’s sister, adjudicated to herself the
properties as the only surviving heir of Anita and Cesar. Edith
and Philip would like to recover the properties claiming that
they should have been reserved by Peachy in their behalf and
must now revert back to them. Is the contention of Edith and
Philip valid? (2014 BAR)

A: NO, the contention is not valid. The property adjudicated to

Jun from the estate of his parents which he in turn left to Anita
and Cesar is not subject to reservation in favor of Edith and
Philip. In Mendoza et. al. v. Policarpio, et. al. (G.R. NO. 176422,
March 20, 2013) the court ruled that lineal character of the
reservable property is reckoned from the ascendant from
whom the propositus received the property by gratuitous title.
The ownership should be reckoned only from Jun, as he is the
ascendant from where the first transmission occurred or from
whom Cesar inherited the properties.

Moreover, Article 891 provides that the person obliged to

reserve the property should be an ascendant. Peachy is not
Cesar’s ascendant but a mere collateral relative. On the
assumption that the property is reservable, Edith and Philip
being first cousins of Cesar who is the propositus are
disqualified to be reservatarios as they are not third degree
relatives of Cesar.

Parties in Reserva Troncal

1. Origin - The origin of the property must be an ascendant,

brother or sister of the propositus. The transmission from the
origin to the propositus must be by gratuitous title.

NOTE: The origin must be a legitimate relative because reserva

troncal exists only in the legitimate family.

The origin can alienate the property. While the origin owns the
property, there is no reserva yet, and therefore, he has the
perfect right to dispose of it, in any way he wants, subject,
however to the rule on inofficious donations.

2. Propositus - The propositus must be a legitimate descendant

or half-brother/sister of the origin of the property.
NOTE: To give rise to reserva troncal, the propositus must not
have any legitimate child; otherwise, the reservable property
will be inherited by the latter.
The presence of illegitimate children of the propositus will not
prevent his legitimate parents or ascendants from inheriting the
reserved property.

The propositus is the descendant whose death gives rise to the

reserva troncal, and from whom therefore the third degree is
counted.

The propositus can alienate the property. While propositus is

still alive, there is no reserva yet, therefore, he is the absolute
owner of the property, with full freedom to alienate or dispose
or encumber.

NOTE: The propositus is referred to as the “arbiter of the

reserva.”

3. Reservista - The reservista is the ascendant who inherits from

the propositus by operation of law. He has the obligation to
reserve.

Q: Princess married Roberto and bore a son, Onofre. Roberto

died in a plane crash. Princess later married Mark and they also
had a son, Pepito. Onofre donated to Pepito, his half-brother, a
lot in Makati City worth P3, 000,000.00. Pepito succumbed to
an illness and died intestate. The lot given to Pepito by Onofre
was inherited by his father, Mark. Mark also died intestate.
Lonely, Princess followed Mark to the life beyond. The
claimants to the subject lot emerged - Jojo, the father of
Princess; Victor, the father of Mark; and Jerico, the father of
Roberto. Who among the three (3) ascendants is entitled to
the lot? Explain. (5%)

Suggested answer:
JOJO, the father of PRINCESS, is the ascendant entitled to the
lot.

The following are the 4 elements of reserve troncal:

a. The ascendant, brother or sister, otherwise known as the

origin of the property, from whom the descendant
propositus has acquired the property by gratuitous title;
b. The descendant propositus, from whom the ascendant-
reservista in turn had acquired the property by operation of
law;
c. The ascendant-reservista who is obliged to reserve the
property; and

d. The relatives of the propositus, otherwise known as the

reservatarios, who are within the 3rd degree and who belong
to the line from which the property came and for whose
benefit the reservation is constituted.

In this case, all the requisites are present.

Mode of extinguishing reserva troncal:

1. Death of the reservista

2. Death of all the relatives witShin the third degree prior to the
death of the reservista

3. Accidental Loss of all the reservable properties

4. Renunciation or waiver by all the reservatatios provided that

no other reservatario is born subsequently

5. Registration under Act 496 without the reservable character

being annotated if it falls into the hands of a buyer in good faith
for value

6. By Prescription – reservista seeks to acquire (30 years –

immovable; 8 years- movable)

7. Confusion or merger of rights, as when the reservatarios

acquire the reservista’s right by a contract inter vivos.