SUPREME COURT 09 Mar, 2015.- It is established as jurisprudential doctrine of the Chamber that the beneficiary by the testator with the usufruct over the whole of the inheritance, or a part or quota, cannot be assimilated to the institution or legal position of the heir of the inheritance. All this, without prejudice to the actions that may assist the creditor of the inheritance in defense of his right of credit, even in the case of a partial partition of the inheritance.
Judgment of the Supreme Court of December 16, 2014, Appeal: 2767/2012 Speaker: Excmo. Mr. D. Francisco Javier Orduña Moreno.
In the City of Madrid, on the sixteenth day of December, two thousand and fourteen.
In view of the First Chamber of the Supreme Court, composed of the Magistrates at the margin, the appeal filed against the judgment issued in appeal No. 506/2011 by the 1st Section of the Provincial Court of Oviedo, as a consequence of the ordinary trial proceedings no. 48/2009, followed before the Court of First Instance number 5 of Oviedo, whose appeal was prepared before the mentioned Court by the attorney Ms. Marta María Arija Domínguez in the name and representation of Ms. Tamara, appearing in this appeal in her name and representation by the attorney Mr. Luis Ortiz Herraiz in his capacity as attorney. Luis Ortiz Herraiz as appellant and the attorney Mr. Nicolás Álvarez Real on behalf of Mr. Feliciano as appellant.
FIRST. The attorney Benjamín Rivas del Fresno, on behalf of Mr. Feliciano filed an ordinary lawsuit against Ms. Africa and MEMBERS OF THE COMUNIDAD DE HEREDEROS Y HERENCIA Y YACENTE DE D. Isidro and alleging the facts and legal grounds that he considered applicable, he ended by requesting the Court to issue a judgment by which the lawsuit was fully upheld: “…. A) – DECLARE that the defendants DÑA. Africa and THE MEMBERS OF THE COMUNIDAD DE HEREDEROS Y HERENCIA Y YACENTE DE D. Isidro, jointly and severally owe Mr. Feliciano, the amount of FIFTY THOUSAND SEVEN HUNDRED AND SEVEN EUROS (50,796 EUROS). B) – The defendants DÑA. Africa and THE MEMBERS OF THE COMUNIDAD DE HEREDEROS Y HERENCIA Y YACENTE DE D. Isidro , to pay jointly and severally to D. Feliciano , the amount of FIFTY THOUSAND SEVEN HUNDRED AND SEVENTY SIX EUROS (50,796 EUROS), plus the legally established interest and the costs of the proceeding”.
SECOND.- The attorney Ms. Marta María Arija Domínguez, in the name and on behalf of Ms. Tamara, answered the claim and, opposing the facts and legal grounds that she considered applicable, ended by requesting the Court to issue a sentence by which: “1.- Declare that the defendant lacks standing to sue and be sued.
2.- Declare that the defendant is not a debtor and does not owe the claimant any amount.
3.- The plaintiff is ordered to pay the costs”.
The attorney Ms. Margarita Riestra Barquín, on behalf of Mr. Luis Andrés, filed a written statement in which she expressly waived the claims deduced adversely.
THIRD.- After the corresponding procedural steps and practice of the evidence proposed by the parties and admitted, the Hon. mr. Magistrate-Judge of the Court of First Instance number 5 of Oviedo, issued a judgment on April 28, 2011, the operative part of which is as follows: ORDER: “…That the claim filed by Mr. Feliciano , represented by the Attorney Mr. Rivas, against Ms. Africa , in default of appearance as defendant and against the Community of Inheritance of Mr. Isidro , composed of Ms. Tamara , represented by Ms. Arija and assisted by Mr. Rivas. Fernández; Mr. Luis Andrés , represented by Ms. Riestra and assisted by Mr. Riestra, Attorney-at-Law. Menéndez and Ms. Africa and Mr. Baldomero, both in procedural default as defendants, I must: Absolve Ms. Tamara of the claim made against her.
To order Ms. Africa, Mr. Luis Andrés and Mr. Baldomero to pay the plaintiff the amount of 50,796 Euros increased by the amount resulting from applying the legal interest from the date of the claim until the date of this judgment and, applying, from the date of this judgment until full payment, the legal interest increased by two points, with the defendant being expressly ordered to pay the costs.
As to the costs, the plaintiff shall be ordered to pay those incurred by the co-defendant acquitted, and the defendants whose conviction is established in this judgment shall be ordered to pay those incurred by the plaintiff, without expressly imposing costs in relation to those incurred by the co-defendant acquitted”.
FOURTH: An appeal was filed by the procedural representation of Ms. Tamara, the 1st Section of the Provincial Court of Oviedo, issued a judgment on May 18, 2012, the operative part of which is as follows: WE RULED: “… To uphold the appeal filed by Mr. Feliciano against the decision of Judgment issued on April 28, 2011 by the Ilma. Ms. Magistrate Judge of First Instance Court No. 5 of Oviedo and revoke said decision in the sense of sentencing Ms. Tamara, jointly and severally with the other defendants sentenced, in the same terms as the latter, with respect to the principal and interest, with no special pronouncement on costs.
No special pronouncement is made as to the costs of the appeal”.
FIFTH.- The legal representation of Ms. Tamara filed an appeal in cassation against the aforementioned judgment, based on the following GROUNDS:
First: Infringement of the rules applicable to the case in question.
Second: Infringement of articles 510, 657, 658, 660, 661, 668, 675 and 881 CC.
SIXTH.- The proceedings were referred to the Civil Chamber of the Supreme Court, and by order dated July 9, 2013, it was decided to admit the appeal filed and to transfer it to the respondent so that they could formalize their opposition within a period of twenty days. Once the appeal was admitted and the transfer of the appeal was completed, the attorney Mr. Nicolás Álvarez Real, on behalf of Ms. Tamara, filed a written objection to the appeal.
SEVENTH.- Not having been requested by all the parties the holding of a public hearing, it was set for voting and ruling on November 19, 2014, which took place.
The Judge who acted as Rapporteur was the Honorable Magistrate. Mr. D. Francisco Javier Orduña Moreno,
FIRST.- 1. The present case raises, as a matter of substance, one of the traditionally problematic assumptions regarding the qualification or individualization of the heir in the content of the will, that is, the institution of a beneficiary of the inheritance in the usufruct or aliquot part thereof; particularly in relation to the obligation of payment of the debts of the inheritance.
- In the present case, according to the will of March 30, 1993, the testator bequeathed to his spouse, co-defendant and appellant herein, the universal and life usufruct of his estate, with dispensation of inventory and bond, as well as with the power to take possession of the legacy by herself.
The claim against the community of heirs arises from a loan contract in favor of one of the heirs that the testator guaranteed in a personal capacity, without the appearance or consent of his wife (legatee of the usufruct of the inheritance) and for an activity outside the legal community of heirs.
After the death of the testator, on July 30, 2007, a public deed of partial adjudication of the inheritance was granted in which the legatee (widow of the testator) received in payment of her legacy the adjudication in ownership of 50% of the family domicile.
- In summary, the judgment of the First Instance, partially upholding the claim filed by the lender, ordered the co-heirs to pay the amount claimed, as a debt of the inheritance, absolving the legatee on the grounds that the widowed spouse does not have the status of heir; all this, without prejudice to the right of the plaintiff to proceed, if appropriate, with the actions that may correspond to him in order to challenge the partition carried out.
For its part, the First Section of the Provincial Court of Oviedo, upholding the appeal, extended the sentence to the legatee on the basis that it was unnecessary to enter into the debated issue regarding the condition or not of heir with respect to the position of the usufructuary, since the deed of partial partition carried out revealed a tacit acceptance of the inheritance (999 of the Civil Code) that can only be made under the condition of heir; Thus, with the awarding of half of the property, she considered herself satisfied of her inheritance rights.
Appeal in cassation.
Payment of inheritance debts.
Individualization of the heir: case of the institution in usufruct of the inheritance. Interpretation guidelines and applicable jurisprudential doctrine.
1. Ms. Tamara, co-defendant and legatee of the universal and life usufruct of the inheritance, under the third paragraph of article 477.2 LEC, in opposition to the jurisprudential doctrine of this Court, filed an appeal in cassation, which she articulated in two motives.
In the first
In the case of the inheritance of a legatee, the claimant alleges the infringement of Articles 510 , 657 , 658 , 660 , 661 , 668 , 675 , 881 of the Civil Code with respect to the institutions of heir and legatee, and the different obligations and responsibilities of the legatee, by non-application of the same, contradiction in relation to the Jurisprudential Doctrine, contemplated in the Judgments of the Supreme Court, 1st Chamber, dated October 28, 1904 , January 25, 1911 , January 11, 1950 , January 22, 1963 , January 24, 1963 , October 28, 1970 , September 20, 1982 , October 20, 1987 , June 29, 2006 , which establish the non-liability of the debts on the part of the widowed spouse, usufructuary and legatee, instituted by will.
In the second
In the second, it alleges infringement by improper application to the present case of Articles 999, 1003 and 1367 of the Civil Code.
In the present case, for the reasons set forth below, the grounds raised must be upheld.
2.Individualization of the heir: criteria for its qualification. The institution in the usufruct of inheritance.
The question of whether a beneficiary of a usufruct over the entire inheritance, or a part or share thereof, should be considered as an heir and, therefore, according to the legal position of such qualification be liable for the debts of the inheritance, constitutes one of the emblematic cases, together with the institution of a certain thing (heres ex re certa), the bequest of an aliquot part of the inheritance and the distribution of the totality of the inheritance in legacies (Article 891 of the Civil Code), of the implicit problem in our inheritance law regarding the individualization of the heir.
The lack of definition on this subject is not due to a mere doubt or interpretative question of a rule or precept, but is caused by the diversity of backgrounds and historical currents that shaped our inheritance law and that clearly emerges in the difficult understanding of the correlation of the precepts at stake in this area, mainly articles 660, 668, 675 and 768 of the Civil Code.
Given this normative context, the practical solution leads to the establishment of a set of criteria that, strictly rooted in the guidelines of testate succession, serve as a frame of reference for a systematic and integrating interpretation of the testamentary declaration. In this regard, the following criteria should be taken into account. In the first place, the prevalence of the will actually willed by the testator in the testamentary declaration, with respect to the terms used for its articulation. Secondly, and as a limit to the above, the need to respect the basic and peculiar status of the legal position assumed by the heir, which the will of the testator cannot denaturalize; for example, by exempting him from the payment of inheritance debts or allowing him the transferability of his title (semel heres, semper heres). Thirdly, it should also be taken into account that, in general, the call to a share or to a specific asset of the inheritance implies the presumption of inheritance or legacy, respectively.
The application of these criteria or guidelines of interpretation lead this Chamber to confirm the jurisprudential doctrine whereby the person instituted in the usufruct of the inheritance should not be considered as heir to the inheritance.
In effect, if it is observed, the content of the beneficiary’s call to the inheritance distances him from the quality of the title that sustains the position of the heir, that is, the global ownership of the rights and obligations of the deceased, to be configured in a concrete patrimonial attribution, the usufruct of the inheritance. In addition, this attribution lacks prior legal existence in the patrimonial content of the inheritance, since it is constituted “ex novo” by the express will of the testator, so that the way in which the usufructuary subenters the succession phenomenon clearly differentiates him from the central position assumed by the heir in its main manifestations.
The same interpretative conclusion is reached if we pay attention to the regulation that our Civil Code gives to the usufruct of the inheritance (articles 508 and 510 of the Civil Code), where it applies the conceptual scheme of the legacy in order to its articulation, being clearly appreciated (510 of the Civil Code) that the usufructuary of the inheritance is not obliged to pay the inheritance debts before the creditors, although he can do it although he is then assisted by a right of reimbursement in the relation that he maintains with the bare owner and heir, properly speaking, of the inheritance.
From the above-mentioned doctrinal context, it is also inferred that the institution in the usufruct can only give rise to a call of the inheritance when, precisely, the testator denaturalizes it in its basic aspects, that is, when he configures its attribution with an institution of a certain thing of the inheritance, or, when the usufructuary is granted the power to dispose, configuring an attribution that really responds to the institute of the residuary trustee substitution; cases not applicable to the present case, where the will declared by the testator is harmonic in all its extension, “nomen” and “asignatio”, in order to the attribution made: “legacy of the universal and lifelong usufruct of the inheritance”.
3.It follows, as alleged by the appellant (second ground of appeal), that the acceptance of the beneficiary of the institution of the usufruct of the inheritance was not made in her capacity as heir, but as a mere legatee of the inheritance, participating, as a legitimate party, in the partial partition of the same which determined the award of 50% of the property in question as payment of her inheritance rights over the inheritance of the deceased; with which Articles 999 and 1003 of the Civil Code, provided for the acceptance of the heir, individualized or qualified as such within the framework of the testamentary declaration, are not applicable; especially if we take into account that the partitional channel does not alter the “ius delationis” that informed the hereditary right of the instituted in the usufruct of the inheritance, [ STS of January 20, 2014 (no. 839/2013 )].
All this, as rightly pointed out by the judgment of the First Instance, without prejudice to the actions of the creditor of the inheritance in defense of his right of credit, even in the case of a partial partition of the inheritance.
THIRD.- Appeal and costs.
- If the grounds of appeal are upheld, the cassation appeal is upheld, and the costs of the appeal are not expressly imposed, in accordance with the provisions of article 398.2 in relation to article 394 LEC.
- If the appeal is upheld, the appeal is dismissed, and the appellant and the respondent must be expressly ordered to pay the costs of the appeal, in accordance with Article 398.1 in relation to Article 394 LEC.
For the foregoing, in the name of the King and by the authority conferred by the Spanish people
- To uphold the cassation appeal filed by the legal representative of Ms. Tamara against the judgment issued on May 18, 2012, by the Provincial Court of Oviedo, Section 1, in appeal No. 506/2011, which we will annul to confirm in its place the pronouncements of the judgment issued by the Court of First Instance of Oviedo, No. 5, of April 28, 2011, arising from the ordinary trial proceedings No. 48/2009.
- It is established as a jurisprudential doctrine of this Chamber that the beneficiary of the testator with the usufruct over the totality of the inheritance, or a part or quota, cannot be assimilated to the institution or legal position of the heir of the inheritance. All this, without prejudice to the actions that may assist the creditor of the inheritance in defense of his right of credit, even in the case of a partial partition of the inheritance.
- There is no need to expressly impose the costs of the appeal.
- The appellant and respondent must be expressly ordered to pay the costs of the appeal.
Thus by this our sentence, which shall be inserted in the LEGISLATIVE COLLECTION and the necessary copies shall be provided for this purpose, we pronounce, order and sign it. Francisco Marin Castan, Jose Ramon Ferrandiz Gabriel, Ignacio Sancho Gargallo, Francisco Javier Orduña Moreno, Rafael Saraza Jimena, Sebastián Sastre Papiol. Signed and initialed. PUBLICATION: The foregoing sentence was read and published by the EXCMO. SR. D. Francisco Javier Orduña Moreno, Speaker in the proceedings of the present case, the First Chamber of the Supreme Court being in Public Hearing, today; of which as Secretary of the same, I certify.