Question B.13, Civil Law, 2019 Bar Exam

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%)

Suggested Answer:

Yes. Answer

Under the Civil Code, a fideicommissary 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, shall be valid and shall take effect, 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. Rule

In the case at bar, N is named as the first heir for purposes of entrusting to her the obligation to preserve and transmit a certain parcel of land owned by M to the latter’s illegitimate daughter, O.  M and O are one degree apart. Apply

Thus, the condition on N to preserve the land and to transmit it upon her death to O is a valid case of fideicommissary substitution. Conclusion
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