phBar.org (Bar Exams Forum-Philippines)

My partial trial answer:

a. Yes, the condition is valid. We have in this case a situation which gives rise to a fideicommissary substitution whereby Ruffa is burdened with an obligation of preserving the land given to her and to transfer the same, upon her death, to her illegitimate daughter Scarlet. Further, in order that a fideicommissary substitution be sustained, the following requisites must concur, to wit:

a. Said substitution must not go beyond one degree;
b. The 1st heir and the 2nd heir must be alive at the time of the testator’s death, that is, there must be no predecease.

Having complied all the foregoing requirements, the condition imposed upon Ruffa, by way of a fideicommissary substitution, is valid.


b. The death of Scarlet (second heir) even before Ruffa (fiduciary) dies shall not, in any way, affect the rights of Scarlet as regards the parcel of land provided she (Scarlet) died before the testator. The law provides that the second heir acquires a right to the succession from the time of the testator’s death even though he should die before the fiduciary. As such, the right of the second heir shall pass to his heirs who shall subsequently inherit from the latter the subject land. Clearly, the second heir succeeds and acquires rights, not from the fiduciary, but from the testator himself.

i wonder if the Iron Curtain rule applies in sub-question c) ?

I think that rule applies only in intestate succession, In the this case the testator expressly instituted his heirs.

that's true. but here,the first heir predeceased the 2nd heir. can't it be said that since the first heir died, the fideicommisary substitution cannot be given effect? and consequently, intestacy would arise? note, 1 of the elements of fideicommisary sub is that both 1st & 2nd heir must be alive at the time of testator's death. here, the 1st heir (Ruffa) predeceased Raymund. in addition, the will contained only the devise & nothing else.

Intestacy would not arise. In this case the 2nd heir would still inherit not as fideicommissary but as an ordinary substitute heir to give effect to the will of the testator that the property would end up to the 2nd heir.

what's the basis for this answer? is it the liberal application of the law or some other provision of law or jurisprudence? m not sure about the iron curtain rule, but m not sure either whether the effect of Ruffa's death here has the effect of converting the fideicommissary sub to a simple sub..

I just based that answer as explained in the book of paras and nutshell reviewer of sempio diy

sbi ko n nga b yun yng mga binasa mo that's the liberal application of the law dawn

I have to concur.

There is reason to believe that intestacy shall not be applied in case the fiduciary dies ahead of the testator because of the express will of the testator that the subject property should ultimately go to the 2nd heir. This is bolstered by the fact that both the heirs are instituted, although by way of fideicommissary substitution. Elementary is a rule that in the interpretation of doubtful provisions of a will, the same shall be resolved to the effect that the testator’s wishes are given much credence. So too, if we are to allow intestacy to take place, it would run counter to the intent of the testator to give the property to the 2nd heir. This, I believe, is more in consonance with the testator’s wishes. Otherwise, the very purpose of fideicommissary substitution is rendered useless.

Therefore, since the fideicommissary substitution cannot now be given effect on account of the fiduciary’s death ahead of the testator, ordinary substitution shall take place. I believe that, unless there is more fitting answer to this, there is nothing more liberal in the application of law than that posited by Dawn.


My two cents.