Articles 864-875: Fideicommissary and Conditional Testamentary Dispositions Prepared by: P.A.

Canada

1

Art. 864. A fideicommissary substitution
can never burden the legitime.
Situation: Ts only property is a house and lot in
Forbes park worth 20M
T instituted FS: A, only son (1
st
heir); B(2
nd
heir),
son of A
Q: Is the FS valid?
A: No. 10M legitime, 10M free portion
Rule: Legitime is reserved for compulsory heir
thus, no substitution allowed.
Art. 865. Every fideicommissary
substitution must be expressly made in
order that it may be valid. The fiduciary
shall be obliged to deliver the
inheritance to the second heir, without
other deductions than those which arise
from legitimate expenses, credits and
improvements, save in the case where
the testator has provided otherwise.
2 Parts:
1. FS must be EXPRESS to be valid

Reasons: a. not favored by law because
it limits the disposition of property
b. Under NCC on Succession,
one of objectives is socialization of
ownership and FS does not socialize
ownership of property because it is
limited to certain persons or within the
confines of the family.
2. Obligations of Fiduciary:
a. Obligation to Preserve the property;
b. Obligation to deliver the property to
2
nd
heir; and
c. Obligation to make inventory of the
property
3. Obligation to make inventory - implied
from the duty of fiduciary to make an account
(under 2
nd
par.).
Deductions the fiduciary make out of the
property:
1. Legitimate expenses- these are limited
only to NECESSARY expenses

2. Credits- refer to advances made by
fiduciary in nature of expenses which are
necessary.

3. Improvements- refer to necessary and
useful improvements.
Note: the amount of improvement is not
the one deductible, it is the increase of
the value of the property by reason of
the improvement.

Art. 866. The second heir shall acquire a
right to the succession from the time of
the testator's death, even though he
should die before the fiduciary. The right
of the second heir shall pass to his heirs.
Rule: Both 1
st
and 2
nd
heir must be alive at
the time of the death of testator. Whether
the 2
nd
heir dies ahead or after the 1
st
heir,
still this would not defeat the right of 2
nd
heir
to inherit.
Illustration:
T died in 1990, in the will it is
provided A shall deliver the property after
10 years to B. But in 1991, B died. (wala
niabot 10years)
Q: Can heirs of B get the property even
before 10years?
A: You have to observe 10 years
Q: But after 10 years, can A refuse to
deliver the property to heirs of B because
the latter dies before the expiration of 10
years.
A: No because B acquires right to
inheritance from the time of testators death
even though he should die before the
fiduciary. So Bs right shall pass to his own
heirs.

Articles 864-875: Fideicommissary and Conditional Testamentary Dispositions Prepared by: P.A. Canada

2

Art. 867. The following shall not take
effect:
(1) Fideicommissary substitutions which
are not made in an express manner,
either by giving them this name, or
imposing upon the fiduciary the absolute
obligation to deliver the property to a
second heir;
(2) Provisions which contain a perpetual
prohibition to alienate, and even a
temporary one, beyond the limit fixed in
article 863;
(3) Those which impose upon the heir
the charge of paying to various persons
successively, beyond the limit
prescribed in article 863, a certain
income or pension;
(4) Those which leave to a person the
whole part of the hereditary property in
order that he may apply or invest the
same according to secret instructions
communicated to him by the testator.

Illustrations:
(1) Lord Stark instuted Robb as his 1st heir.
His will states "I hereby institute Robb
as heir to my property and then later on
Sansa succeeds also to my property."
Q: Is there FS?
A: No because there is no obligation to
preserve and deliver although it may be
another kind of institution but not FS.

(2) When the right to inherit is successive: "
I hereby institute Jaime Lannister as
heir to my palace and all those who may
inherit from Jaime are prohibited from
alienating my property forever."
Q: Is the institution valid?
A: The institution is valid but the period
is not valid. (ArticI2 870)
In this case forever should only mean
20 years.




Another Illustration:

Lord Stark (Testator)

Jaime Lannister


Joffrey


Arya


So JL inherits after death of LS. After 15 years JL
died, naturally Joffrey inherits the property. During the
lifetime of JL he cannot dispose because it is
prohibited for 20 years but he died after 15 years.
Is Joffrey prohibited from disposing the property?
A: Yes because the testastor expressly provides that
JL and those who may inherit from him are prohibited
from alienating the property forever. So Jaime cannot
dispose the property for 5 years but after 5 years he
can now dispose the property.
Q: What if Jaime died after 3 years? So Arya now will
inherit, is Arya prohibited from alienating property for
2 years?
A: NO. it cannot go beyond 1 degree.( Note the
limitations under par.2)

(3) Situation: T institutes A as heir and A
has the obligation of paying to B
pension 10T/month. After B, C the child
of B 10T, and D the child of C 10/month.
Q: Is this allowed?
A: Yes, Article 867(3)
Requisites:
1. One degree apart
2. Both are living at the time of
testators death
Note: the counting must start
from B, so from B there is one degree to
C. If it comes from A there is no
successive payment.
Q: How about payment to D?
A: No longer allowed because this is
beyond the limit prescribed under Art
863.
Articles 864-875: Fideicommissary and Conditional Testamentary Dispositions Prepared by: P.A. Canada

3


(4) SECRET INSTRUCTIONS

"I hereby institute Pnoy as my heir for
the sole purpose of giving to some
person the 10M, the identity of such
person was already revealed by me to
Pnoy."

Rule: Institution as well as acquisition of
property is not valid for following
reasons:

a. Not all persons are
capacitated to inherit. As in
the case of concubine.
b. If instruction is secret how
would we know that heir
really disposed of the
property according to the
instruction of the testator?

Art. 868. The nullity of the
fideicommissary substitution does not
prejudice the validity of the institution of
the heirs first designated; the
fideicommissary clause shall simply be
considered as not written.
Example:
Lord Tywin instituted Joffrey as the 1st heir in
FS and after 10 years Joffrey will deliver to Lord
Varys, his friend.
Q: Is this valid FS?
A: NO, Lord Varys is a friend not qualified as 1st
degree (generation).
Q: Therefore, is Joffrey disallowed to inherit?
A: No. Only considered not written (Article 868).
It shall not prejudice the validity of the institution
of the heirs first designated.
Art. 869. A provision whereby the
testator leaves to a person the whole or
part of the inheritance, and to another
the usufruct, shall be valid. If he gives
the usufruct to various persons, not
simultaneously, but successively, the
provisions of Article 863 shall apply.
Example: "I hereby give to A the naked
ownership over my house and lot then the
usufruct to B and when B dies, C will succeed
the usufruct, and when C dies, D will succeed to
the usufruct."
From B-C is valid.
From C-D not valid because beyond the limit
under Article 863. If they are all best friends, all
are not valid because they are not 1 degree.
Note: Always measure under Art. 863
Cf: Art. 564, NCC
Art. 870. The dispositions of the testator
declaring all or part of the estate
inalienable for more than twenty years
are void.
Examples:
" I hereby give my property to A and A cannot
alienate the property AS LONG AS HE LIVES."
If A lives for 50 years, how long would be the
prohibition?
A: For 20 years only.
Q: What if A dies after 5 years? Should the heirs
of A be prohibited for an additional 15 years?
A: No because as long as he lives meaning
limited only to the lifetime of A.
Rules:
a. If 20 years valid
b. If more than 20 years, what is void is merely
the excess
c. If prohibition is silent still it is considered as 20
years. Same is true if the prohibition is forever.
Note: This cannot apply to legitime.
Cf: Art. 904(2
nd
par.), NCC







Articles 864-875: Fideicommissary and Conditional Testamentary Dispositions Prepared by: P.A. Canada

4

SECTION 4. - Conditional Testamentary
Dispositions
and Testamentary Dispositions With a
Term

Art. 871. The institution of an heir may be
made conditionally, or for a certain
purpose or cause.
Kinds of Institutions:
1. Simple or Pure- that which is absolute
not subject to any condition.
Ex. I hereby institute Versace as my
heir.
2. Conditional- that which is subject to a
condition.
Ex. I hereby institute Versace as my heir
to my house and lot if he passes the
bar.
3. Institution with a Term- that which is
subject to a term.
Ex. I hereby institute Versace as my heir
so that when Lacoste died, Versace will
get my car. (Death of Lacoste is the
term)
4. Modal Institution- that which is for a
certain purpose or cause or that which is
provided under Art.882 and Art.883.
Ex. I give to Versace 1M so that he may
use it in the bar operations for the CJC
Bar aspirants this September.

CONDITION(Succession)
A future or uncertain event or past event
unknown to the parties upon which the
acquisition or extinguishment of a right under
testamentary disposition is made subject.
Case: Morente vs De La Santa (refer to Paras
Book, p.263, 2013 Ed.)

Art. 872. The testator cannot impose any
charge, condition, or substitution
whatsoever upon the legitimes
prescribed in this Code. Should he do
so, the same shall be considered as not
imposed.

Rule:
No burden, substitution, condition, charge
should be imposed upon the legitime.
Effect of violation: the BSCoCha are considered
not written
Exception: Testator can validly impose
prohibition against partition of the legitime not
exceeding 20 years.Example(in your book):
A son was informed by father in a will
that he would get the legitime only if he pass the
bar. The Son failed in the bar.
Q: Is he entitled to his legitime?
A: YES, his father had no right to impose in any
condition on his legitime. Condition here is
considered not imposed.
Art. 873. Impossible conditions and
those contrary to law or good customs
shall be considered as not imposed and
shall in no manner prejudice the heir,
even if the testator should otherwise
provide. (792a)
IMPOSSIBLE CONDITIONS:
Review: In OBbliCon: when the condition
imposed is illegal or impossible, both the
obligation and condition are void.
In Succession: The institution is still valid just
disregard the impossible or illegal condition.
Reason: There is presumption in Succession
that the underlying reason for the institution is
the liberality of the testator not the illegal or
impossible condition.
Note: The reckoning point as to the legality or
illegality of condition is at the time when the
condition is to be performed. (Miciano vs Brimo)






Articles 864-875: Fideicommissary and Conditional Testamentary Dispositions Prepared by: P.A. Canada

5

Art. 874. An absolute condition not to
contract a first or subsequent marriage
shall be considered as not written unless
such condition has been imposed on the
widow or widower by the deceased
spouse, or by the latter's ascendants or
descendants.
Nevertheless, the right of usufruct, or an
allowance or some personal prestation
may be devised or bequeathed to any
person for the time during which he or
she should remain unmarried or in
widowhood. (793a)
RELATIVE PROHIBITION- This is allowed.
But if this would amount to an absolute
prohibition like not to marry for 60 years
then it is not allowed.
Ex. Prohibited to marry a particular person
or prohibited to marry in a particular time.
ABSOLUTE PROHIBITION- Not allowed.
Ex. I hereby institute Derek Ramsey as my
heir provided he will not marry at all
otherwise he will forfeit the inheritance.
Exceptions:
1. When the condition is imposed upon
the spouse by a deceased spouse
2. If imposed by the ascendants or
descendants of a deceased spouse
to the spouse of the deceased
spouse.
Ex.: C and D are parents of
B. A and B are husband and
wife. B is now dead. C
provided in his will I institute
A as my heir but if A will re-
marry then she will forfeit her
inheritance.
2
nd
par.: I hereby institute my friend Jennifer
Garner as heir to my properties and because
she is an heir she will enjoy the use and
possession of my properties. But if she will
marry she will forfeit my property. this is
allowed.
But remember par.2, the heir already
enjoys the property unlike 1
st
par. The property
is not yet enjoyed. Here in 2
nd
par. Enjoyed na
meron syang usufruct or allowance or some
personal prestation like free service to parlor ng
testator. That is allowed and to provide that the
heir will forfeit the usufruct, allowance or
personal prestation that may be valid.
Take note|: Limited lang sa USUFRUCT,
ALLOWANCE or PERSONAL PRESTATION. If
hindi mag fall amone these three it is not
considered valid prohibition.
Reason for Article 874: Public Policy. The law
provide that marriage is an inviolable social
instiution. So the law really looks at marriage as
sacred and it should be preserve as much as
possible.
Art. 875. Any disposition made upon the
condition that the heir shall make some
provision in his will in favor of the
testator or of any other person shall be
void. (794a)

DISPOSITION CAPTATORIA
Example: I hereby institute Billl Gates as
my heir provided that he will also institute
me as his heir. Or , provided that he will
institute my son or my friend or anybody as
his own heir.
Reason of prohibition: Because the
controlling motive or the main consideration
in Succession is the liberality of the testator.
If this is allowed, then you are making
testamentary privilege as contractual
privilege. You are turning your will into a
contract.
Q: What if not in the will but the heir just
execute a Deed of Donation in favor of the
testator or some of other person. Can you
call that analogous to Disposition
Captatoria.
A: No because the law says WILL. So if is in
a Deed of Donation then there is no
Disposition Captatoria.


END HERE