EN BANC
G.R. No. L-31703 February 13, 1930CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee,
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila, defendants-appellants.
L. D. Lockwood and Jose M. Casal for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.
ROMUALDEZ, J.:
The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in
Manila, as the final payment of the liquidated credit of Ana Maria
Alcantara, deceased, whose heiress is said plaintiff, against Andres
Garchitorena, also deceased, represented by his son, the defendant
Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for
P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff,
Carmen G. de Perez, the sheriff pursuant to the writ of execution issued
in said judgment, levied an attachment on said amount deposited with La Urbana.
The plaintiff, alleging that said deposit belongs to
the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a
preliminary injunction restraining the execution of said judgment on
the sum so attached. The defendants contend that the plaintiff is the
decedent's universal heiress, and pray for the dissolution of the
injunction.
The court below held that said La Urbana
deposit belongs to the plaintiff's children as fideicommissary heirs of
Ana Maria Alcantara, and granted a final writ of injunction.
The defendants insist in their contentions, and, in
their appeal from the decision of the trial court, assign the following
errors:
1. The lower court erred in holding that a trust was created by the will of Doña Ana Maria Alcantara.
2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as "herederos fidei-comisarios."
3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs.
The question here raised is confined to the scope and
meaning of the institution of heirs made in the will of the late Ana
Maria Alcantara already admitted to probate, and whose legal force and
effect is not in dispute.
The clauses of said will relevant to the points in
dispute, between the parties are the ninth, tenth, and eleventh, quoted
below:
Ninth. Being single and without any forced heir, to
show my gratitude to my niece-in-law, Carmen Garchitorena, of age,
married to my nephew, Joaquin Perez Alcantara, and living in this same
house with me, I institute her as my sole and universal heiress to the
remainder of my estate after the payment of my debts and legacies, so
that upon my death and after probate of this will, and after the report
of the committee on claims and appraisal has been rendered and approved,
she will receive from my executrix and properties composing my
hereditary estate, that she may enjoy them with God's blessing and my
own.
Tenth. Should my heiress Carmen Garchitorena die, I
order that my whole estate shall pass unimpaired to her surviving
children; and should any of these die, his share shall serve to increase
the portions of his surviving brothers (and sisters) by accretion, in
such wise that my estate shall never pass out of the hands of my heiress
or her children in so far as it is legally possible.
Eleventh. Should my aforesaid heiress, Carmen
Garchitorena, die after me while her children are still in their
minority, I order that my estate be administered by my executrix, Mrs.
Josefa Laplana, and in her default, by Attorney Ramon Salinas and in his
default, by his son Ramon Salinas; but the direction herein given must
not be considered as an indication of lack of confidence in my nephew
Joaquin Perez Alcantara, whom I relieve from the duties of administering
my estate, because I recognize that his character is not adapted to
management and administration.
The appellants contend that in these clauses the
testatrix has ordered a simple substitution, while the appellee contends
that it is a fideicommissary substitution.
This will certainly provides for a substitution of
heirs, and of the three cases that might give rise to a simple
substitution (art. 774, Civil Code), only the death of the instituted
heiress before the testatrix would in the instant case give place to
such substitution, inasmuch as nothing is said of the waiver of
inheritance, or incapacity to accept it. As a matter of fact, however,
clause XI provides for the administration of the estate in case the
heiress instituted should die after the testatrix and while the
substitute heirs are still under age. And it is evident that,
considering the nature of simple substitution by the heir's death before
the testator, and the fact that by clause XI in connection with clause
X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution.
The existence of a substitution in the will is not
and cannot be denied, and since it cannot be a simple substitution in
the light of the considerations above stated, let us now see whether the
instants case is a fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff
herein her sole and universal heiress, and provides that upon her death
(the testatrix's) and after probate of the will and approval of the
report of the committee on claims and appraisal, said heiress shall
receive and enjoy the whole hereditary estate. Although this clause
provides nothing explicit about substitution, it does not contain
anything in conflict with the idea of fideicommissary substitution. The
fact that the plaintiff was instituted the sole and universal heiress
does not prevent her children from receiving, upon her death and in
conformity with the express desire of the testatrix, the latter's
hereditary estate, as provided in the following (above quoted) clauses
which cannot be disregarded if we are to give a correct interpretation
of the will. The word sole does not necessarily exclude the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff is the sole heiress instituted in the first instance.
The disposition contained in clause IX, that said
heiress shall receive and enjoy the estate, is not incompatible with a
fideicommissary substitution (it certainly is incompatible with the idea
of simple substitution, where the heiress instituted does not receive
the inheritance). In fact the enjoyment of the inheritance is in
conformity with the idea of fideicommissary substitution, by virtue of
which the heir instituted receives the inheritance and enjoys it,
although at the same time he preserves it in order to pass it on the
second heir. On this point the illustrious Manresa, in his Civil Code
(Vol. 6, pp. 142 and 143, 5th ed.), says:
Or, what amounts to the same thing, the
fideicommissary substitution, as held in the Resolution of June 25,
1895, February 10, 1899, and July 19, 1909, requires three things:
1. A first heir called primarily to the enjoyment of the estate.
2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate.
3. A second heir.
To these requisites, the decision of November 18,
1918 adds another, namely that the fideicommissarius be entitled to the
estate from the time the testator dies, since he is to inherit from the
latter and not from the fiduciary. (Emphasis ours.)
It appears from this quotation that the heir
instituted or the fiduciary, as referred to in articles 783 of the Civil
Code, is entitled to enjoy the inheritance. And it might here be
observed, as a timely remark, that the fideicommissum arising from a
fideicommissary substitution, which is of Roman origin, is not exactly
equivalent to, nor may it be confused with, the English "trust."
It should also be noted that said clause IX vests in
the heiress only the right to enjoy but not the right to dispose of the
estate. It says, she may enjoy it, but does not say she may dispose of
it. This is an indication of the usufruct inherent in fideicommissary
substitution.
Clause X expressly provides for the substitution. It
is true that it does not say whether the death of the heiress herein
referred to is before or after that of the testatrix; but from the whole
context it appears that in making the provisions contained in this
clause X, the testatrix had in mind a fideicommissary substitution,
since she limits the transmission of her estate to the children of the
heiress by this provision, "in such wise that my estate shall never pass
out of the hands of my heiress or her children in so far as it is
legally possible." Here it clearly appears that the testatrix tried to
avoid the possibility that the substitution might later be legally
declared null for transcending the limits fixed by article 781 of the
Civil Code which prescribed that fideicommissary substitutions shall be
valid "provided they do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the whole estate
shall pass unimpaired to the heiress's children, that is to say the
heiress is required to preserve the whole estate, without diminution, in
order to pass it on in due time to the fideicommissary heirs. This
provision complies with another of the requisites of fideicommissary
substitution according to our quotation from Manresa inserted above.
Lastly, clause XI more clearly indicates the idea of
fideicommissary substitution, when a provision is therein made in the
event the heiress should die after the testatrix. That is, said
clause anticipates the case where the instituted heiress should die
after the testatrix and after receiving and enjoying the inheritance.
The foregoing leads us to the conclusion that all the
requisites of a fideicommissary substitution, according to the
quotation from Manresa above inserted, are present in the case of
substitution now under consideration, to wit:
1. At first heir primarily called to the enjoyment of
the estate. In this case the plaintiff was instituted an heiress,
called to the enjoyment of the estate, according to clause IX of the
will.
2. An obligation clearly imposed upon the heir to
preserve and transmit to a third person the whole or a part of the
estate. Such an obligation is imposed in clause X which provides that
the "whole estate shall pass unimpaired to her (heiress's) surviving
children;" thus, instead of leaving the heiress at liberty to dispose of
the estate by will, or of leaving the law to take its course in case
she dies intestate, said clause not only disposes of the estate in favor
of the heiress instituted, but also provides for the disposition
thereof in case she should die after the testatrix.
3. A second heir. Such are the children of the
heiress instituted, who are referred to as such second heirs both in
clause X and in clause XI.
Finally, the requisite added by the decision of
November 18, 1918, to wit, that the fideicommissarius or second heir
should be entitled to the estate from the time of the testator's death,
which in the instant case, is, rather than a requisite, a necessary
consequence derived from the nature of the fideicommissary substitution,
in which the second heir does not inherit from the heir first
instituted, but from the testator.
By virtue of this consequence, the inheritance in
question does not belong to the heiress instituted, the plaintiff
herein, as her absolute property, but to her children, from the moment
of the death of the testatrix, Ana Maria Alcantara.
Therefore, said inheritance, of which the amount
referred to at the beginning, which is on deposit with the association
known as La Urbana in the plaintiff's name, is a part, does not
belong to her nor can it be subject to the execution of the judgment
against Joaquin Perez, who is not one of the fideicommissary heirs.
The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.
Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.Street, J., reserves his vote.
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