Republic of the Philippines AQUINO. J.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-33849 August 18, 1977
TEODORICO ALEJANDRO, IRENEO POLICARPIO, VIRGINIA
ALEJANDRO, MARIA ALEJANDRO, SALUD ALEJANDRO,
EMILIA ALEJANDRO, FLORENCIO ALEJANDRO and
DIONISIA ALEJANDRO, petitioners,
vs.
HON. AMBROSIO M. GERALDEZ, Presiding Judge, Court of
First Instance of Bulacan, Branch V, Sta. Maria, ANDREA
DIAZ and ANGEL DIAZ, respondents.
G.R. No. L-33968 August 18, 1977
ANDREA DIAZ, petitioner,
vs.
HON. AMBROSIO M. GERALDEZ, in his capacity as Presiding
Judge of the Court of First Instance of Bulacan, Branch V,
TEODORICO ALEJANDRO, IRENEO POLICARPIO, VIRGINIA
ALEJANDRO, MARIA ALEJANDRO, EMILIA ALEJANDRO,
FLORENCIO ALEJANDRO and DIONISIA ALEJANDRO,
respondents.
Ponciano G. Hernandez for Teodorico Alejandro, et al.
Porfirio Villaroman for Andrea Diaz and Angel Diaz.
This is a case about donations inter vivos and mortis causa . The
bone of contention is Lot No. 2502 of the Lolomboy Friar Lands
Estate with an area of 5,678 square meters, situated in Sta. Maria,
Bulacan and covered by Transfer Certificate of Title No. 7336. The
facts are as follows: On January 20, 1949 the spouses Gabino
(Gavino) Diaz and Severa Mendoza, their daughter-in-law Regina
Fernando and their three children, Olimpia Diaz, Angel Diaz and
Andrea Diaz, executed a deed of donation covering eight lots of
the Lolomboy Friar Lands Estate, owned by the Diaz spouses,
located at Barrio Parada, Sta. Maria, Bulacan. The deed reads as
follows:
KASULATAN NG PAGKAKALOOB (A DEED OF DONATION)
ALAMIN NG LAHAT NG MAKATUTUNGHAY
NITO:
Ang pagkakaloob (donation) na ito, ginawa at
pinagtibay dito sa municipio ng Sta. Maria,
lalawigan ng Bulacan, Pilipinas, ngayong ika 20 ng
Enero, 1949, ng mag-asawang GABINO DIAZ at
SEVERA MENDOZA, filipinos, may mga sapat na
gulang, naninirahan sa nayon ng Parada, Sta.
Maria, Bulacan na dito'y kinikilalang NAGKALOOB
(DONORS), sa kapakanan nila REGINA
FERNANDO, filipina, may sapat na gulang, viuda;
OLIMPIA DIAZ, filipina, may sapat na gulang, kasal
kay Teodorico Alejandro, ANGEL DIAZ, filipino,
may sapat na gulang, kasal kay Catalina Marcelo,
at ANDREA DIAZ, filipina, may sapat na gulang,
kasal kay Perfecto Marcelo, mga naninirahan sa
nayon ng Parada, Sta. Maria, Bulacan, na dito'y
kinikilalang PINAGKALOOBAN (DONEES).
PAGPAPATUNAY:
Na ang Nagkaloob (DONORS) ay siyang mayari,
at kamayari at namomosision sa kasalukuyan ng
mga parcelang lupa kasama ang mga kagalingan
na nasa lugar ng Parada, Sta. Maria, Bulacan,
mapagkikilala sa paraang mga sumusunod
(description and statements as to registration are
omitted):
1. TCT No. 7336, Lot No. 2502, 5,678 square
meters.
2. TCT No. 10998, Lot No. 2485, 640 square
meters.
3. TCT No. 10840, Lot No. 2377,16,600 square
meters.
4. TCT No. 10997, Lot No. 2448,12,478 square
meters.
5. TCT No. 2051, Lot No. 4168, 1,522 square
meters.
6. TCT No. 17960, Lot No. 2522, 3,418 square
meters.
7. TCT No. 17961, Lot No. 2521, 715 square
meters.
8. TCT No. 21453, Lot No. 2634, 8,162 square
meters.
Na dahil at alang-alang sa pagmamahal at
masuyong pagtingin na taglay ng NAGKAKALOOB
(DONORS) sa Pinagkakalooban (DONEES) gayun
din sa tapat at mahalagang paglilingkod noong
mga lumipas na panahon na ginawa ng huli sa una,
ang nabanggit na nagkakaloob sa pamamagitan
ng kasulatang ito ng pagkakaloob (Donation) ay
buong pusong inililipat at lubos na ibinibigay sa
nasabing pinagkakalooban ang lupang binabanggit
at makikilala sa unahan nito, laya sa ano mang
sagutin at pagkakautang, katulad nito:
(a) — Na ang lupang sinasaysay sa Lote No. 2502
o Titulo No. 7336, (No. 1) sa unahan nito ay hinati
sa dalawang parte ang unang parte (1/2) na nasa
bandang Kanluran (West) ay ipinagkakaloob ng
mag-asawang Gabino Diaz at Severa Mendoza sa
kanilang anak na si Angel Diaz, kasal kay Catalina
Marcelo; at ang ikalawang parte (1/2) na nasa
'bandang silangan (East) ay ipinagkakaloob ng
mag-asawang Gabino Diaz at Severa Mendoza sa
kanilang anak na si Andrea Diaz, kasal kay
Perfecto Marcelo."
(Note — Some dispositions are not reproduced
verbatim but are merely summarized because they
are not involved in this case. Paragraph (a) above
is the one involved herein).
(b) — Lot No. 2485, TCT No.10998, to Regina
Fernando (daughter- in-law of the donors and
widow of their deceased son, Miguel Diaz) and
Olimpia Diaz in equal shares.
(c) — Lot No. 2377, TCT No. 10840, 1/3 to Angel
Diaz, 1/3 to Andrea Diaz, and 1/3 "ay inilalaan o
inihahanda ng mag-asawang Gabino Diaz at
Severa Mendoza sa kanilang sariling kapakanan o
mga gastos nila.
(d) — Lot No. 2448, TCT No. 10997 to Olimpia Diaz
sa condicion na pagkakalooban ni Olimpia Diaz si
Crisanta de la Cruz, asawa ni Alejandro - - - - - (sic)
sakaling si Crisanta ay mamatay ng halagang
isang daang piso (P100), bilang gastos sa libing."
(e) — Na ang lupang-solar na sinasaysay sa Lote
No. 4168 o Titulo No. 2051 (No. 5); lupang-bukid
na sinasaysay sa Lote No. 25?2 o Titulo No. 17960
(No. 6); at lupang-bukid na sinasaysay sa Lote No.
2521 o Titulo No. 17961 (No. 7) sa unahan nito ay
inilalaan o inihahanda ng mag-asawang Gabino
Diaz at Severa Mendoza sa kanilang sariling
kapakanan o mga gastos nila.
(f) — Lot No. 2643, TCT No. 21453, to Regina
Fernando and her children with the deceased
Miguel Diaz in whose name the said Lot was
already registered.
Na kaming mga pinagkakalooban (DONEES) na
sila Regina Fernando, Olimpia Diaz, Angel Diaz at
Andrea Diaz ay tinatanggap namin ng buong
kasiyahang loob ang pagkakaloob (Donation.) na
ito, at sa pamamagitan nito ay kinikilala,
pinahahalagahan, at lubos na pinasasalamatan
namin ang kagandahang loob at paglingap na
ipinakita at ginawa ng nagkakaloob (Donors).
AT SA WAKAS, ang pagkakaloob na ito
(DONATION), ay sumasailalim sa paraang mga
sumusunod:
1. Ang mga Pinagkakalooban (Donatarios) na sila
Regina Fernando, Olimpia Diaz, Angel Diaz, at
Andrea Diaz, siyang nakaaalam sa mga gastos sa
pagkakasakit at sa libing ng NAGKALOOB
(DONANTE);
2. Na ang mga Pinagkalooban (DONATARIOS) ay
hindi maaaring makapagbili sa pangatlong tao ng
nasabing mga pagaari samantalang ang
nagkaloob (Donante) ay buhay Datapwa't kung
ang pagbibiling gagawin ay upang malunasan ang
mga gastos at menitencion ng Nagkaloob
(Donante) samakatuwid ang nasabing pagbibili ay
matuwid;
3. Gayun din, samantalang kaming mag-asawang
Gabino Diaz at Severa Mendoza ay buhay, patuloy
ang aming pamamahala, karapatan, at pagkamay-
ari sa mga nasabing pagaari na sinasaysay sa
unahan nito na pag-aari namin; ngunit sakaling
kami ay bawian ng buhay ng Panginoong Dios at
mamatay na ang mga karapatan at pagkamay-ari
ng bawa't Pinagkalooban (Donatarios) sa bawa't
pag-aari na nauukol sa bawa't isa ay may lubos na
kapangyarihan."
SA KATUNAYAN NG LAHAT, linagdaan namin
ang kasulatang ito, dito sa Sta. Maria, Bulacan,
ngayon ika 20 ng Enero, 1949, sa patibay ng
dalawang sacsing kaharap. Signature Thumbmark
Signature GABINO DIAZ SEVERA MENDOZA
REGINA
FERNANDO Thumbmark Signature Signature OLI
MPIA DIAZ ANGEL DIAZ ANDREA DIAZ
(Acknowledgment signed by Notary Celedonio Reyes is omitted)
Gabino Diaz died in 1962. On October 20, 1964 Severa Mendoza
and her two children, Andrea Diaz and Angel Diaz, executed a
deed of donation denominated as "Kasulatan ng Pagbibigay na
Magkakabisa Pagkamatay (Donation Mortis causa )" over one-half
of Lot No. 2377-A, which is a portion of Lot No. 2377 of the
Lolomboy Friar Lands Estate (which in turn is item 3 or [c] in the
1949 deed of donation already mentioned).
In that deed of donation, Severa Mendoza donated to Andrea Diaz
her one-half share in Lot 2377-A, which one-half share is Identified
as Lot 2377-A-1, on condition that Andrea Diaz would bear the
funeral expenses to be incurred after the donor's death. She died
in 1964.
It should be noted that the other one-half share in Lot 2377-A or
Lot No. 2377-A-2 was previously adjudicated to Angel Diaz
because he defrayed the funeral expenses on the occasion of the
death of Gabino Diaz.
On May 12, 1970 Andrea Diaz sued her brother, Angel Diaz, in the
Court of First Instance of Bulacan, Sta. Maria Branch V for the
partition of Lots Nos. 2377-A and 2502 (Civil Case No. SM-357).
Teodorico Alejandro, the surviving spouse of Olimpia Diaz, and
their children intervened in the said case. They claimed one-third
of Lot No. 2502. Angel Diaz alleged in his answer that he had. been
occupying his share of Lot No. 2502 "for more than twenty years".
The intervenors claimed that the 1949 donation was a void mortis
causa disposition.
On March 15, 1971 the lower court rendered a partial decision with
respect to Lot No. 2377-A. The case was continued with respect to
Lot No. 2502 which is item No. 1 or (a) in the 1949 deed of
donation. The record does not show what happened to the other
six lots mentioned in the deed of donation.
The trial court in its decision of June 30, 1971 held that the said
deed of donation was a donation mortis causa because the
ownership of the properties donated did not pass to the donees
during the donors' lifetime but was transmitted to the donees only
"upon the death of the donors".
However, it sustained the division of Lot No. 2502 into two equal
parts between Angel Diaz and Andrea Diaz on the theory that the
said deed of donation was effective "as an extra-judicial partition
among the parents and their children. Consequently, the Alejandro
intervenors were not given any share in Lot No. 2502. Angel Diaz
and the intervenors were ordered to pay Andrea Diaz "attorney's
fees of P1,000 each or a total of P2,000".
The Alejandro intervenors filed a motion for reconsideration, On
July 16, 1971 the trial court denied that motion but eliminated the
attorney's fees.
Andrea Diaz and the Alejandro intervenors filed separate appeals
to this Court under Republic Act No. 5440. Andrea Diaz contends
that the 1949 deed of donation is a valid donation inter vivos and
that the trial court erred in deleting the award for attorney's fees.
The Alejandro intervenors contend that the said donation is mortis
causa ; that they are entitled to a one-third share in Lot No, 2502,
and that the trial court erred in characterizing the deed as a valid
partition. In the ultimate analysis, the appeal involves the issue of
whether the Alejandro intervenors should be awarded one-third of
Lot No. 2502, or 1,892 square meters thereof, as intestate heirs of
the Diaz spouses.
To resolve that issue, it is necessary to determine whether the
deed of donation is inter vivos or mortis causa. A brief exposition
on the nature of donation inter vivos and mortis causa may
facilitate the resolution of that issue. Many legal battles have been
fought on the question of whether a particular deed is an inter
vivos or mortis causa donation. The copious jurisprudence on that
point sheds light on that vexed question. The Civil Code provides:
ART. 728. Donations which are to take effect upon
the death of the donor partake of the nature of
testamentary provisions, and shall be governed by
the rules established in the Title on Succession.
(620).
ART. 729. When the donor intends that the
donation shall take effect during the lifetime of the
donor, though the property shall not be delivered till
 after the donor's death, this shall be a donation
inter vivos. The fruits of the property from the time
of the acceptance of the donation, shall pertain to
the donee, unless the donor provides otherwise. (n)
ART. 730. The fixing of an event or the imposition
of a suspensive condition, which may take place
beyond the natural expectation of life of the donor,
does not destroy the nature of the act as a
donation inter vivos unless a contrary intention
appears. (n)
ART. 731. When a person donates something
subject to the resolutory condition of the donor's
survival, there is a donation inter vivos. (n)
ART. 732. Donations which are to take effect inter
vivos shall be governed by the general provisions
on contracts and obligations in all that is not
determined in this Title. (621)."
Nature of donations inter vivos and mortis causa transfers. —
Before tackling the issues raised in this appeal, it is necessary to
have some familiarization with the distinctions between
donations inter vivos and mortis causa because the Code
prescribes different formalities for the two kinds of donations. An
utter vivos donation of real property must be evidenced by a public
document and should be accepted by the donee in the same deed
of donation or in a separate instrument. In the latter case, the donor
should be notified of the acceptance in an authentic form and that
step should be noted in both instruments. (Art. 749, Civil Code. As
to inter vivos donation of personal property, see art. 748).
On the other hand, a transfer mortis causa should be embodied in
a last will and testament (Art. 728, supra). It should not be called
donation mortis causa . It is in reality a legacy (5 Manresa, Codigo
Civil, 6th Ed., p. 107). If not embodied in a valid will, the donation
is void (Narag vs. Cecilio, 109 Phil. 299; Aznar vs. Sucilla 102 Phil.
902; Tuazon vs. Posadas, 54 Phil. 289; Serrano vs. Solomon, 105
Phil. 998, 1002).
This Court advised notaries to apprise donors of the necessity of
clearly specifying whether, notwithstanding the donation, they wish
to retain the right to control and dispose at will of the property
before their death, without the consent or intervention of the
beneficiary, since the reservation of such right would be a
conclusive indication that the transfer' would be effective only at
the donor's death, and, therefore, the formalities of testaments
should be observed; while, a converso, the express waiver of the
right of free disposition would place the inter vivos character of the
donation beyond dispute (Cuevas vs. Cuevas, 98 Phil. 68,72).
From the aforequoted articles 728 to 732, it is evident that it is the
time of effectivity (aside from the form) which distinguishes a
donation inter vivos from a donation mortis causa . And the
effectivity is determined by the time when the full or naked
ownership (dominum plenum or dominium directum) of the
donated properties is transmitted to the donees. (See Lopez vs.
Olbes, 15 Phil. 540; Gonzales and Fuster Fabra vs. Gonzales
Mondragon, 35 Phil. 105). The execution of a public instrument is
a mode of delivery or tradition (Ortiz vs. Court of Appeals, 97 Phil.
46).
If the donation is made in contemplation of the donor's death,
meaning that the full or naked ownership of the donated properties
will pass to the donee only because of the donor's death, then it is
at that time that the donation takes effect, and it is a
donation mortis causa which should be embodied in a last will and
testament (Bonsato vs. Court of Appeals, 95 Phil. 481).
But if the donation takes effect during the donor's lifetime or
independently of the donor's death, meaning that the full or naked
ownership (nuda proprietas) ) of the donated properties passes to
the donee during the donor's lifetime, not by reason of his death
but because of the deed of donation, then the donation is inter
vivos (Castro vs. Court of Appeals, L-20122, April 28, 1969, 27
SCRA 1076).
The effectivity of the donation should be ascertained from the deed
of donation and the circumstances surrounding its execution.
Where, for example, it is apparent from the document of trust that
the donee's acquisition of the property or right accrued immediately
upon the effectivity of the instrument and not upon the donor's
death, the donation is inter vivos (Kiene vs. Collector of Internal
Revenue, 97 Phil. 352).
There used to be a prevailing notion, spawned by a study of Roman
Law, that the Civil Code recognizes a donation mortis as a juridical
act in contraposition to a donation inter vivos. That impression
persisted because the implications of article 620 of the Spanish
Civil Code, now article 728, that "las donaciones que hayan de
producir sus efectos pro muerte del donante participan de la
naturaleza de las disposiciones de ultima voluntad, y se regiran
por las reglas establecidas en el capitulo de la sucesion
testamentaria" had not been fully expounded in the law schools.
Notaries assumed that the donation mortis causa of the Roman
Law was incorporated into the Civil Code.
As explained by Justice J. B. L. Reyes in the Bonsato case, supra,
article 620 broke away from the Roman Law tradition and followed
the French doctrine that no one may both donate and retain. Article
620 merged donations mortis causa with testamentary dispositions
and thus suppressed the said donations as an independent legal
concept. Castan Tobenas says:
(b) Subsisten hoy en nuestro Derecho las
donaciones mortis causa ? — De lo que acabamos
de decir se desprende que las donaciones mortis
causa han perdido en el Codigo civil su caracter
distintivo y su naturaleza, y hay que considerarlas
hoy como una institucion suspirimida, refundida en
la del legado. ...
La tesis de la desaparicion de las
donaciones mortis causa en nuestro Codigo Civil,
acusada ya precedentemente por el projecto de
1851, puede decirse que constituye una communis
opinio entre nuestros expositores, incluso los mas
recientes. ...
Garcia Goyena, comentando dicho proyecto, decia
que la Comision se habia adherido al acuerdo de
suprimir las donaciones mortis causa , seguido por
casi todos los Codigos modernos. Las
donaciones mortis causa — añ;adia-eran una
especie de montsruo entre los contratos y ultimas
voluntades; las algarabia del Derecho romano y
patrio sobre los puntos de semenjanza y
disparidad de estas donaciones con los pactos y
legados no podia producir sino dudas, confusion y
pleitos en los rarisimos casos que ocurriesen por
la dificuldad de apreciar y fijar sus verdaderos
caracteres' "(4 Derecho Civil Espanol, Comun y
Foral, 8th Ed., 1956, pp. 182-3).
Manresa is more explicit. He says that "la disposicion del articulo
620 significa, por lo tanto: (1) que han desaperacido las llamadas
antes donaciones mortis causa , por lo que el Codigo no se ocupa
de ellas en absoluto; (2) que toda disposicion de bienes para
despues de la muerte sigue las reglas establecidas para la
sucesion testamentaria" (5 Comentarios al Codigo Civil Espanol,
6th Ed., p.107). Note that the Civil Code does not use the term
donation mortis causa . ( Section 1536 of the Revised
Administrative Code in imposing the inheritance tax uses the term
"gift mortis causa ").
lwphl@i tç
What are the distinguishing characteristics of a donation mortis
causa? Justice Reyes in the Bonsato case says that in a
disposition post mortem (1) the transfer conveys no title or
ownership to the transferee before the death of the tansferor, or
the transferor (meaning testator) retains the ownership, full or
naked (domino absoluto or nuda proprietas) (Vidal vs. Posadas, 58
Phil. 108; De Guzman vs. Ibea, 67 Phil. 633; (2) the transfer is
revocable before the transferor's death and revocabllity may be
provided for indirectly by means of a reserved power in the donor
to dispose of the properties conveyed (Bautista vs. Sabiniano, 92
Phil. 244), and (3) the transfer would be void if the transferor
survived the transferee.
In other words, in a donation mortis causa it is the donor's death
that determines that acquisition of, or the right to, the property
donated, and the donation is revocable at the donor's will, Where
the donation took effect immediately upon the donee's acceptance
thereof and it was subject to the resolutory condition that the
donation would be revoked if the donee did not give the donor a
certain quantity of rice or a sum of money, the donation is inter
vivos (Zapanta vs. Posadas, Jr., 52 Phil. 557).
Justice Reyes in the subsequent cast of Puig vs. Penaflorida, L-
15939, November 29, 1965, 15 SCRA 276, synthesized the rules
as follows:
1. That the Civil Code recognizes only gratuitous
transfers of property which are effected by means
of donations inter vivos or by last will and
testament executed with the requisite legal
formalities.
2. That in inter vivos donations the act is
immediately operative even if the material or
physical deliver (execution) of the property may be
deferred until the donor's death, whereas, in a
testamentary disposition, nothing is conveyed to
the grantee and nothing is acquired by him until the
death of the grantortestator. The disposition is
ambulatory and not final.
3. That in a mortis causa disposition the
conveyance or alienation should be (expressly or
by necessary implication) revocable ad nutum or at
the discretion of the grantor or so called donor if he
changes his mind (Bautista vs. Saniniano, 92 Phil.
244).
4. That, consequently, the specification in the deed
of the cases whereby the act may be revoked by
the donor indicates that the donation is inter
vivos and not a mortis causa disposition (Zapanta
vs. Posadas, 52 Phil. 557).
5. That the designation of the donation as mortis
causa , or a provision in the deed to the effect the
donation "is to take effect at the death of the donor",
is not a controlling criterion because those
statements are to be construed together with the
rest of the instrument in order to give effect to the
real intent of the transferor (Laureta vs. Mata and
Mango, 44 Phil. 668; Concepcion vs. Concepcion,
91 Phil. 823; Cuevas vs. Cuevas, 98 Phil. 68).
6. That a conveyance for an onerous consideration
is governed by the rules of contracts and not by
those of donations or testaments (Carlos vs. Ramil,
20 Phil. 183; Manalo vs. De Mesa, 29 Phil. 495).
7. That in case of doubt the conveyance should be
deemed a donation inter vivos rather than mortis
causa , in order to avoid uncertainty as to the
ownership of the property subject of the deed.
It may be added that the fact that the donation is given in
consideration of love and affection or past or future services is not
a characteristic of donations inter vivos because transfers mortis
causa may be made also for those reasons. There is difficulty in
applying the distinctions to controversial cases because it is not
easy sometimes to ascertain when the donation takes effect or
when the full or naked title passes to the transferee. As Manresa
observes, "when the time fixed for the commencement of the
enjoyment of the property donated be at the death of the donor, or
when the suspensive condition is related to his death, confusion
might arise" (5 Codigo Civil, 6th Ed., p. 108).
The existence in the deed of donation of conflicting stipulations as
to its effectivity may generate doubt as to the donor's intention and
as to the nature of the donation (Concepcion vs. Concepcion, 91
Phil. 823).
Where the donor declared in the deed that the conveyance
was mortis causa and forbade the registration of the deed before
her death, the clear inference is that the conveyance was not
intended to produce any definitive effect nor to pass any interest to
the grantee except after her death. In such a case, the grantor's
reservation of the right to dispose of the property during her lifetime
means that the transfer is not binding on her until she dies. It does
not mean that the title passed to the grantee during her lifetime.
(Ubalde Puig vs. Magbanua Penaflorida, L-15939, Resolution of
January 31, 1966, 16 SCRA 136).
In the following cases, the conveyance was considered a
void mortis causa transfer because it was not cast in the form of a
last will and testament as required in article 728, formerly article
620:
(a) Where it was stated in the deed of donation that the donor
wanted to give the donee something "to take effect after his death"
and that "this donation shall produce effect only by and because of
the death of the donor, the property herein donated to pass title
after the donor's death" (Howard vs. Padilla, 96 Phil. 983). In the
Padilla case the donation was regarded as mortis causa although
the donated property was delivered to the donee upon the
execution of the deed and although the donation was accepted in
the same deed.
(b) Where it was provided that the donated properties would be
given to the donees after the expiration of thirty days from the
donor's death, the grant was made in the future tense, and the word
"inherit" was used (Carino vs. Abaya, 70 Phil. 182).
(c) Where the donor has the right to dispose of all the donated
properties and the products thereof. Such reservation is
tantamount to a reservation of the right to revoke the donation
(Bautista vs. Sabiniano 92 Phil. 244).
(d) Where the circumstances surrounding the execution of the
deed of donation reveal that the donation could not have taken
effect before the donor's death and the rights to dispose of the
donated properties and to enjoy the fruits remained with the donor
during her lifetime (David vs. Sison, 76 Phil. 418).
But if the deed of donation makes an actual conveyance of the
property to the donee, subject to a life estate in the donors, the
donation is is inter vivos (Guarin vs. De Vera, 100 Phil. 1100).
Articles 729, 730 and 731 have to some extent dissipated the
confusion surrounding the two kinds of donation. The rule in article
729 is a crystallization of the doctrine announced in decided cases.
A clear instance where the donor made an inter vivos donation is
found in De Guzman vs. Ibea 67 Phil. 633. In that case, it was
provided in the deed that the donor donated to the donee certain
properties so that the donee "may hold the same as her own and
always" and that the donee would administer the lands donated
and deliver the fruits thereof to the donor, as long as the donor was
alive, but upon the donor's death the said fruits would belong to the
donee. It was held that the naked ownership was conveyed to the
donee upon the execution of the deed of donation and, therefore,
the donation became effective during the donor's lifetime.
In Sambaan vs. Villanueva, 71 Phil. 303, the deed of donation, as
in Balaqui vs. Dongso, 53 Phil. 673, contained conflicting provision.
It was provided in the deed that the donation was made "en
consideracion al afecto y carino" of the donor for the donee but that
the donation "surtira efectos despues de ocurrida mi muerte
(donor's death).
That donation was held to be inter vivos because death was not
the consideration for the donation but rather the donor's love and
affection for the donee. The stipulation that the properties would be
delivered only after the donor's death was regarded as a mere
modality of the contract which did not change its inter
vivos character. The donor had stated in the deed that he was
donating, ceding and transferring the donated properties to the
donee. (See Joya vs. Tiongco, 71 Phil. 379).
In Laureta vs. Mata and Magno, 44 Phil. 668 the deed of donation
provided that the donor was donating mortis causa certain
properties as a reward for the donee's services to the donor and
as a token of the donor's affection for him. The donation was made
under the condition that "the donee cannot take possession of the
properties donated before the death of the donor"; that the ' donee
should cause to be held annually masses for the repose of the
donor's soul, and that he should defray the expenses for the
donor's funeral.
It was held that the said donation was inter vivos despite the
statement in the deed that it was mortis causa . The donation was
construed as a conveyance in praesenti ("a present grant of a
future interest") because it conveyed to the donee the title to the
properties donated "subject only to the life estate of the donor" and
because the conveyance took effect upon the making and delivery
of the deed. The acceptance of the donation was a circumstance
which was taken into account in characterizing the donation as
inter vivos.
In Balacui vs. Dongso, supra, the deed of donation involved was
more confusing than that found in the Lauretacase. In
the Balaqui case, it was provided in the deed that the donation was
made in consideration of the services rendered to the donor by the
donee; that "title" to the donated properties would not pass to the
donee during the donor's lifetime, and that it would be only upon
the donor's death that the donee would become the "true owner"
of the donated properties. However, there was the stipulation that
the donor bound herself to answer to the donee for the property
donated and that she warranted that nobody would disturb or
question the donee's right.
Notwithstanding the provision in the deed that it was only after the
donor's death when the 'title' to the donated properties would pass
to the donee and when the donee would become the owner
thereof, it was held in the Balaqui case that the donation was inter
vivos.
It was noted in that case that the donor, in making a warranty,
implied that the title had already been conveyed to the donee upon
the execution of the deed and that the donor merely reserved to
herself the "possesion and usufruct" of the donated properties.
In Concepcion vs. Concepcion, 91 Phil. 823, it was provided in the
deed of donation, which was also styled as mortis causa , that the
donation was made in consideration of the services rendered by
the donee to the donor and of the donor's affection for the donee;
that the donor had reserved what was necessary for his
maintenance, and that the donation "ha de producir efectos
solamente por muerte de la donante".
It was ruled that the donation was inter vivos because the
stipulation that the donation would take effect only after the donor's
death "simply meant that the possession and enjoyment, of the
fruits of the properties donated' should take effect only after the
donor's death and not before".
Resolution of the instant case. — The donation in the instant case
is inter vivos because it took effect during the lifetime of the donors.
It was already effective during the donors' lifetime, or immediately
after the execution of the deed, as shown by the
granting, habendum and warranty clause of the deed (quoted
below).
In that clause it is stated that, in consideration of the affection and
esteem of the donors for the donees and the valuable services
rendered by the donees to the donors, the latter, by means of the
deed of donation, wholeheartedly transfer and unconditionally give
to the donees the lots mentioned and described in the early part of
the deed, free from any kind of liens and debts:
Na dahil at alang-alang sa
pagmamahal at masuyong
pagtingin na taglay ng
NAGKAKALOOB (DONORS) sa
Pinagkakalooban (DONEES)
gayun din sa tapat at mahalagang
paglilingkod noong mga lumipas na
panahon na ginawa ng huli sa una
ang nabanggit na nagkakaloob sa
pamagitan ng kasulatang ito ng
pagkakaloob (Donation) ay buong
pusong inililipat at lubos na
ibinibigay sa nasabing
pinagkakalooban ang lupang
binabanggit at makikilala sa
unahan nito, laya sa ano mang
sagutin at pagkakautang, katulad
nito:
Following the above-ousted granting, habendum and warranty
clause is the donors' declaration that they donate (ipinagkakaloob)
Lot No. 2502, the property in litigation, in equal shares to their
children Angel Diaz and Andrea Diaz, the western part to Angel
and the eastern part to Andrea.
The acceptance clause is another indication that the donation is
inter vivos. Donations mortis causa , being in the form of a will, are
never accepted by the donees during the donors' lifetime.
Acceptance is a requirement for donations inter vivos.
In the acceptance clause herein, the donees declare that they
accept the donation to their entire satisfaction and, by means of the
deed, they acknowledge and give importance to the generosity and
solicitude shown by the donors and sincerely thank them.
In the reddendum or reservation clause of the deed of donation, it
is stipulated that the donees would shoulder the expenses for the
illness and the funeral of the donors and that the donees cannot
sell to a third person the donated properties during the donors'
lifetime but if the sale is necessary to defray the expenses and
support of the donors, then the sale is valid.
The limited right to dispose of the donated lots, which the deed
gives to the donees, implies that ownership had passed to them by
means of' the donation and that, therefore, the donation was
already effective during the donors' lifetime. That is a characteristic
of a donation inter vivos.
However, paragraph 3 of the reddendum in or reservation clause
provides that "also, while we, the spouses Gabino Diaz and Severa
Mendoza, are alive, our administration, right, and ownership of the
lots mentioned earlier as our properties shall continue but, upon
our death, the right and ownership of the donees to each of the
properties allocated to each of them shall be fully effective." The
foregoing is the translation of the last paragraph of the deed of
donation which reads:
(3) Gayun din samantalang kaming mag-asawang
Gabino Diaz at Severa Mendoza ay buhay, patuloy
and aming pamamahala, karapatan, at
pagkamayari sa mga nasabing pagaari na
sinasaysay sa unahan nito na pagaari namin;
ngunit sakaling kami ay bawian ng buhay ng
Panginoong Dios at mamatay na, ang mga
 karapatan at pagkamayari ng bawa't
pinagkalooban (Donatorios) sa bawa't pagaari
nauukol sa bawa't isa ay may lubos na
kapangyarihan.
Evidently, the draftsman of the deed did not realize the discordant
and ambivalent provisions thereof. The habendum clause
indicates the transfer of the ownership over the donated properties
to the donees upon the execution of the deed. But
the reddendum clause seems to imply that the ownership was
retained by the donors and would be transferred to the donees only
after their death.
We have reflected on the meaning of the said contradictory
clauses. All the provisions of the deed, like those of a statute and
testament, should be construed together in order to ascertain the
intention of the parties. That task would have been rendered easier
if the record shows the conduct of the donors and the donees after
the execution of the deed of donation.
But the record is silent on that point, except for the allegation of
Angel Diaz in his answer (already mentioned) that he received his
share of the disputed lot long before the donors' death and that he
had been "openly and adversely occupying" his share "for more
than twenty years". (Andrea Diaz on page 17 of her brief in L-33849
states that the donees took possession of their respective shares
as stipulated in the deed of donation. Pages 3,4,18 and 19, tsn
March, 1971).
Our conclusion is that the aforequoted paragraph 3 of
the reddendum or reservation clause refers to the beneficial
ownership (dominium utile) and not to the naked title and that what
the donors reserved to themselves, by means of that clause, was
the management of the donated lots and the fruits thereof. But,
notwithstanding that reservation, the donation, as shown in
the habendum clause, was already effective during their lifetime
and was not made in contemplation of their death because the
deed transferred to the donees the naked ownership of the donated
properties.
That conclusion is further supported by the fact that in the deed of
donation, out of the eight lots owned by the donors, only five were
donated. Three lots, Lots Nos. 4168, 2522 and 2521 were
superflously reserved for the spouses or donors in addition to one-
third of Lot No. 2377. If the deed of donation in question was
intended to be a mortis causa disposition, then all the eight lots
would have been donated or devised to the three children and
daughter-in-law of the donors.
The trial court's conclusion that the said deed of donation, although
void as a donation inter vivos is valid "as an extrajudicial partition
among the parents and their children" is not well-taken. Article
1080 of the Civil Code provides that 46 should a person make a
partition of his estate by an act inter vivos or by will, such partition
shall be respected, insofar as it does not prejudice the legitime of
the compulsory heirs."
We have already observed that the said donation was not a
partition of the entire estate of the Diaz spouses since, actually,
only five of the eight lots, constituting their estate, were partitioned.
Hence, that partition is not the one contemplated in article 1080.
There is another circumstance which strengthens ' the view that
the 1949 deed of donation in question took effect during the
donors' lifetime. It may he noted that in that deed Lot No. 2377
(items 3 and [c]) was divided into three equal parts: one-third was
donated to Andrea Diaz and one-third to Angel Diaz. The remaining
one-third was reserved and retained by the donors, the spouses
Gabino Diaz and Severo Mendoza, for their support. That reserved
one-third portion came to be known as Lot No. 2377-A.
In 1964 or after the death of Gabino Diaz, his surviving spouse
Severa Mendoza executed a donation mortis causa wherein she
conveyed to her daughter, Andrea Diaz (plaintiff-appellant herein),
her one-half share in Lot No. 2377-A, which one-half share is
known as Lot No. 2377-A-1, the other half or Lot No. 2377-A-2
having been already conveyed to Angel Diaz.
That disposition of Lot No. 2377-A-2 clearly implies that the
conveyance in the 1949 deed of donation as to Lot No. 2377 took
effect during the lifetime of the donors, Gabino Diaz and Severa
Mendoza, and proves that the 1949 donation was inter vivos.
The instant case has a close similarity to the pre-war cases already
cited and to three post-liberation cases. In the Bonsato case, the
deed of donation also contained contradictory dispositions which
rendered the deed susceptible of being construed as a
donation inter vivos or as a donation causa.
It was stated in one part of the deed that the donor was executing
"una donacion perfects e irrevocable consumada" in favor of the
donee in consideration of his past services to the donor; that at the
time of the execution of the deed, the donor "ha entregado" to the
donee "dichos terrenos donados'; that while the donor was alive,
he would receive the share of the fruits corresponding to the owner;
and "que en vista de la vejez del donante, el donatario Felipe
Bonsato tomara posesion inmediatamente de dichos terrenos a su
favor". These provisions indicate that the donation in question
was inter vivos
However, in the last clause of the deed in the Bonsato case (as in
the instant case), it was provided 'que despues de la muerte del
donante entrara en vigor dicha donacion y el donatario Felipe
Bonsato tendra todos log derechos de dichos terrernos en
concepto de dueno absolute de la propriedad libre de toda
responsabilidad y gravemen y pueda ejercitar su derecho que crea
conveniente". These provisions would seem to show that the
donation was mortis causa .
Nevertheless, it was held in the Bonsato case that the donation
was inter vivos because (1) the ownership of the things donated
passed to the donee; (2) it was not provided that the transfer was
revocable before the donor's death, and (3) it was not stated that
the transfer would be void if the transferor should survive the
transferee.
It was further held in the Bonsato case that the stipulation "que
despues de la muerte del donante entrara en vigor dicha
donacion", should be interpreted together with the prior provision
regarding its irrevocable and consummated character, and that
would mean that the charge or condition as to the donor's share of
the fruits would be terminated upon the donor's death.
The Puig case, supra, is even more doubtful and controversial
than the instant case. In the Puig case, the donor, Carmen Ubalde
Vda. de Parcon, in a deed entitled "Donacion Mortis causa dated
November 24, 1948 cede y transfiere en concepto de
donacion mortis causa to the donee, Estela Magbanua Penaflorida
three parcels of land in consideration of the donee's past services
and the donor's love and affection for the latter.
It was stipulated in the deed that the donor could alienate or
mortgage the donated properties "cuando y si necesita fondos para
satisfacer sus proprias necesidades sin que para ello tega que
intervener la Donataria, pues su consentimiento se sobre entiende
aqui parte de que la donacion que aqui se hace es mortis causa ,
es decir que la donacion surtira sus efectos a la muerte de la
donante". It was repeated in another clause of the deed "que
lacesion y transferencia aqui provista surtira efecto al fallecer la
Donante".
It was further stipulated that the donee would defray the medical
and funeral expen of the donor unless the donor had funds in the
bank or "haya cosecho levantada or recogida en cual caso dichos
recursos responderan portales gastos a disposicion y direccion de
la donataria". Another provision of the deed was that it would be
registered only after the donor's death. In the same deed the donee
accepted the donation.
In the Puig case the donor in another deed entitled Escritura de
Donacion mortis causa " dated December 28, 1949 donated to the
same donee, Estela Magbanua Penaflorida three parcels of land
en concepto de una donacion mortis causa " in consideration of
past services. It was provided in the deed "que antes de su nuerte
la donante, podra enajenar vender traspasar o hipotecar a
cualesquiera persona o entidades los bienes aqui donados a favor
de la donataria en concepto de una donacion mortis causa ". The
donee accepted the donation in the same deed.
After the donor's death both deeds were recorded in the registry of
deeds. In the donor's will dated March 26, 1951, which was duly
probated, the donation of a parcel of land in the second deed of
donation was confirmed.
Under these facts, it was held that the 1948 deed of
donation mortis causa was inter vivos in character in spite of
repeated expressions therein that it was a mortis causa donation
and that it would take effect only upon the donor's death. Those
expressions were not regarded as controlling because they were
contradicted by the provisions that the donee would defray the
donor's expenses even if not connected with her illness and that
the donee's husband would assume her obligations under the
deed, should the donee predecease the donor. Moreover, the
donor did not reserve in the deed the absolute right to revoke the
donation.
But the 1949 deed of donation was declared void because it was a
true conveyance mortis causa which was not embodied in a last
will and testament. The mortis causa character of the disposition is
shown by the donor's reservation of the right to alienate or
encumber the donated properties to any person or entity.
In the Cuevas case, supra, one Antonina Cuevas executed on
September 18, 1950 a notarial conveyance styled as
"Donacion Mortis causa " where she ceded to her nephew Crispulo
Cuevas a parcel of unregistered land. Crispulo accepted the
donation in the same instrument. Subsequently, or on May 26,
1952, the donor revoked the donation.
The deed of donation in the Cuevas case contained the following
provisions which, as in similar cases, are susceptible of being
construed as making the conveyance an inter vivos or a mortis
causa transfer:
"Dapat maalaman ni Crispulo Cuevas na samantalang ako ay
nabubuhay, ang lupa na ipinagkakaloob ko sa kaniya ay ako pa rin
ang patuloy na mamomosecion, makapagpapatrabajo,
makikinabang at ang iba pang karapatan sa pagmamayari ay sa
akin pa rin hanggang hindi ako binabawian ng buhay ng Maykapal
at ito naman ay hindi ko nga iyaalis pagkat kung ako ay mamatay
na ay inilalaan ko sa kaniya."
Translation
"Crispulo Cuevas should know that while I am alive, the land which
I donated to him will still be under my continued possession; I will
be the one to have it cultivated; I will enjoy its fruits and all the other
rights of ownership until Providence deprives me of life and I
cannot take away the property from him because when I die I
reserve the property for him." (sic)
It was held that the donation was inter vivos because the phrase
"hindi ko nga iyaalis (I will not take away the property") meant that
the donor expressly renounced the right to freely dispose of the
property in favor of another person and thereby manifested the
irrevocability of the conveyance of the naked title to the donee. The
donor retained the beneficial ownership or dominium utile Being
an inter vivos donation, it could be revoked by the donor only on
the grounds specified by law. No such grounds existed. The donee
was not guilty of ingratitude. The other point to be disposed of is
the matter of the claim for attorney's fees of Andrea Diaz against
the Alejandro intervenors.
The other point to be disposed of is the matter of the claim for
attorney's fees of Andrea Diaz against the Alejandro intervenors.
After a careful consideration of the facts and circumstances of the
case, particularly the apparent good faith of the Alejandro
intervenors in asserting a one-third interest in the disputed lot and
their close relationship to Andrea Diaz, we find that it is not proper
to require them to pay attorney's fees (Salao vs. Salao, L-26699,
March 16, 1976, 70 SCRA 65). (Andrea Diaz did not implead Angel
Diaz as a respondent in her petition for review.)
WHEREFORE, the trial court's amended decision is reversed
insofar as it pronounces that the deed of donation is void. That
donation is declared valid as a donation inter vivos.
The disputed lot should be partitioned in accordance with that deed
between Andrea Diaz and Angel Diaz.
The decision is affirmed insofar as it does not require the Alejandro
intervenors to pay attorney's fees to Andrea Diaz. No costs. SO
ORDERED.
Fernando (Chairman), Barredo, Concepcion, Jr. and Santos, JJ.,
concur.
Separate Opinions
ANTONIO, J., concurring:
I concur. I agree that all the features pointed out by Justice Aquino
indicate that the conveyance was intended to produce definitive
effect upon the execution of said instrument. For the important
characteristic of a donation inter vivos is that it takes effect
independently of the donor's death. Thus, when the donor states
that he donates the properties subject to the "condition that the
donee cannot take ion of the properties donated until after my
death'. 1or the ownership and possession of the property, as wen as
its administration,. were turned over to the donee, but the right to reap
and dispose of the fruits was deferred until after the death of the
donor 2 or when it was expressly stated that the donation would take
effect upon acceptance, but would be revoked ipso facto upon the
non-fulfillment of certain conditions, 3it has been held that the donation
is inter vivos, and the ownership over the property donated is
transferred to the donee. 4
A donation inter vivos is a gratuitous contract whereby the donor
divests himself, at present and irrevocably, of the thing given in
favor of the donee and, therefore, like any other contract, requires
the concurrence of the reciprocal consent of the parties, and does
not become perfect until it is accepted by the donee. 5 As observed
by Manresa, 6upon acceptance by the donee, the donor can no longer
withdraw, and he can be compelled to comply with his offering or to
deliver the things he wanted to donate. Consequently, it may not be
revoked unilaterally or by the sole and arbitrary will of the donor. The
donation, however, may be made revocable upon the fulfillment of
resolutory conditions, 7 or may be revoked only for the reasons
provided in Articles 760, 764 and 765 of the Civil Code. As explained
in Bautista, et al. v. Sabiniano, 8 except "in the instances expressly
provided by law, such as the subsequent birth of children of the donor,
failure by the donee to comply with the conditions imposed, ingratitude
of the donee and reduction of the donation in the event of
inofficiousness thereof, a donation is irrevocable. If the donor reserves
the right to revoke it or if he reserves the right to dispose of all the
properties purportedly donated, there is no donation. If the disposition
or conveyance or transfer takes effect. upon the donor's death and
becomes irrevocable only upon his death, it is not inter vivos but
a mortis causa donation." Here, the conveyance or alienation of the
properties donated is not revocable ad nutum
Separate Opinions or conveyance or transfer takes effect. upon the donor's death and
becomes irrevocable only upon his death, it is not inter vivos but
ANTONIO, J., concurring: a mortis causa donation." Here, the conveyance or alienation of the
properties donated is not revocable ad nutum
I concur. I agree that all the features pointed out by Justice Aquino
indicate that the conveyance was intended to produce definitive
effect upon the execution of said instrument. For the important
characteristic of a donation inter vivos is that it takes effect
independently of the donor's death. Thus, when the donor states
that he donates the properties subject to the "condition that the
donee cannot take ion of the properties donated until after my
death'. 1or the ownership and possession of the property, as wen as
its administration,. were turned over to the donee, but the right to reap
and dispose of the fruits was deferred until after the death of the
donor 2 or when it was expressly stated that the donation would take
effect upon acceptance, but would be revoked ipso facto upon the
non-fulfillment of certain conditions, 3it has been held that the donation
is inter vivos, and the ownership over the property donated is
transferred to the donee. 4

A donation inter vivos is a gratuitous contract whereby the donor

divests himself, at present and irrevocably, of the thing given in
favor of the donee and, therefore, like any other contract, requires
the concurrence of the reciprocal consent of the parties, and does
not become perfect until it is accepted by the donee. 5 As observed
by Manresa, 6upon acceptance by the donee, the donor can no longer
withdraw, and he can be compelled to comply with his offering or to
deliver the things he wanted to donate. Consequently, it may not be
revoked unilaterally or by the sole and arbitrary will of the donor. The
donation, however, may be made revocable upon the fulfillment of
resolutory conditions, 7 or may be revoked only for the reasons
provided in Articles 760, 764 and 765 of the Civil Code. As explained
in Bautista, et al. v. Sabiniano, 8 except "in the instances expressly
provided by law, such as the subsequent birth of children of the donor,
failure by the donee to comply with the conditions imposed, ingratitude
of the donee and reduction of the donation in the event of
inofficiousness thereof, a donation is irrevocable. If the donor reserves
the right to revoke it or if he reserves the right to dispose of all the
properties purportedly donated, there is no donation. If the disposition
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-45262 July 23, 1990
RUPERTO REYES and REYNALDO C. SAN JUAN, in his
capacity as Special Administrator, petitioners,
vs.
HON. LORENZO R. MOSQUEDA, Judge of CFI, Pampanga
(Branch VII), and URSULA D. PASCUAL, respondents.
G.R. No. L-45394 July 23, 1990
PEDRO DALUSONG, petitioner,
vs
HON. LORENZO R. MOSQUEDA, JUDGE, BRANCH VII,
COURT OF FIRST INSTANCE OF PAMPANGA, and URSULA
D. PASCUAL, respondents.
G.R. Nos. 73241-42 July 23, 1990
OFELIA D. PARUNGAO and ROSARIO DUNCIL, petitioners,
vs.
THE HON. INTERMEDIATE APPELLATE COURT, (Third Civil
Cases Division), BENJAMIN P. REYES and OSCAR
REYES, respondents.
GUTIERREZ, JR., J.:
The instant petitions have been consolidated as they arose from the same facts and involve
similar issues. Dr. Emilio Pascual died intestate and without issue on November 18,1972. He
was survived by his sister, Ursula Pascual and the children of his late sisters as follows: (1)
Maria Pascual Reyes- Ruperto Reyes and Jose Reyes; (2) Ines Pascual Reyes-Jose P.
Reyes, Benito Reyes, and Manna Reyes Manalastas; (3) Josefa Pascual Reyes-Augusto
Reyes and Benjamin Reyes; and (4) Escolastica Pascual Dalusong (half- blood Pedro
Dalusong.
On December 3, 1973, the heirs of Dr. Pascual filed Special
Proceedings No. 73-30-M in the then Court of First Instance of
Pampanga for the administration of his estate. Atty. Marcela
Macapagal, Clerk of Court of Branch VII was appointed special
administratrix. Macapagal was, however, replaced by Reynaldo
San Juan.
On February 12, 1976, Ursula Pascual filed a motion to exclude
some properties from the inventory of Pascual's estate and to
deliver the titles thereto to her. Ursula alleged that Dr. Pascual
during his lifetime or on November 2, 1966 executed a "Donation
Mortis Causa" in her favor covering properties which are included
in the estate of Dr. Pascual (subject of Special Proceedings No.
73-30-M) and therefore should be excluded from the inventory.
On August 1, 1976; the trial court issued an order excluding from
the inventory of the estate the properties donated to Ursula, to wit:
WHEREFORE, in view of all the foregoing
discussion, let the properties listed in paragraph 2
of the motion of February 12, 1976 filed by Ursula
D. Pascual thru counsel be, as it is hereby ordered,
excluded from the inventory of the estate of the
deceased Dr. Emilio D. Pascual, without prejudice
to its final determination in a separate action.
Special Administrator Reynaldo San Juan is
hereby ordered to return to Court the custody of the
corresponding certificates of titles of these
properties, until the issue of ownership is finally
determined in a separate action. (G.R. No. 45262,
pp. 23-24)
The Order is now the subject of G.R. Nos. 45262 and 45394. On
January 5, 1977, we issued a temporary restraining order enjoining
the trial court from enforcing the August 1, 1976 Order.
Among the properties included in the "donation mortis causa" in
favor of Ursula was Lot 24, Block No. 15 of the subdivision plan
Psd-3231, located at 1109-1111 R. Papa St., Tondo, Manila as
evidenced by Transfer Certificate of Title No. 17854. The records
show that on May 15, 1969, Emilio Pascual executed a deed of
donation of real property inter vivos over the abovementioned lot
in Manila in favor of Ofelia D. Parungao, petitioner in G.R. Nos.
73241-42 a minor with her mother, Rosario Duncil, accepting the
gift and donation for and in her behalf. When Parungao reached
the age of majority or on December 20, 1976, she tried to have the
donation registered. However, she found out that the certificate of
title was missing from where it was supposed to be kept, prompting
her to file a petition for reconstitution of title with the Court of First
Instance of Manila. The petition was granted in October 1977.
Parungao registered the deed of donation with the Register of
Deeds of Manila who cancelled Transfer Certificate of Title No.
17854 and issued in lieu thereof Transfer Certificate of Title No.
129092 in the name of Ofelia Parungao. She then filed a motion
for exclusion in Special Proceedings No. 73-30-M.
In the meantime, on September 23, 1976, Ursula Pascual executed
a deed of absolute sale over the Tondo property in favor of
Benjamin, Oscar, Jose and Emmanuel, all surnamed Reyes.
On May 2, 1978, Benjamin Reyes, private respondent in G.R. Nos.
73241-42 filed a complaint for declaration of nullity of Transfer
Certificate of Title No. 129092, Register of Deeds of Manila and/or
reconveyance of deed of title against Ofelia Parungao and Rosario
Duncil, with the then Court of First Instance of Manila. The case
was docketed as Civil Case No. 115164.
In their answer with compulsory counterclaim Parungao and
Duncil, denied Reyes' assertion of ownership over the Tondo
property. On November 6, 1978, Ofelia Parungao filed a complaint
for recovery of possession over the Tondo property against
Benjamin Reyes and his nephew Oscar Reyes with the Court of
First Instance of Manila. The case was docketed as Civil Case No.
119359. In her complaint, Parungao also alleged that as early as
1973, the defendants occupied two (2) doors of the apartment
situated at the Tondo property by mere tolerance of the previous
owner, Dr. Emilio Pascual, and later by her until April 8, 1978 when
she formally demanded that the defendants vacate the premises.
Parungao prayed that the defendants be evicted from the
premises.
The two cases were consolidated. On June 3, 1982, the then Court
of First Instance, Branch 8 rendered a joint decision, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered: In
Civil Case No. 115164 —
1) Declaring TCT No. 129092 in the name of Ofelia
Parungao null and void; and ordering the Register
of Deeds of Manila to cancel said title and to
restore, in lieu thereof, TCT No. 17854 in the name
of Emilio D. Pascual;
2) Ordering Ofelia D. Parungao to pay plaintiff
Benjamin P. Reyes the sum of Two Thousand
(P2,000.00) Pesos, as and for attorney's fees; and
to pay the costs of suit including all fees which the
Register of Deeds may prescribe for the full
implementation of this decision. For lack of merit,
the counterclaim is dismissed.
In Civil Case No. 119359 —
1) Dismissing the complaint for want of merit; and
 2) On the counterclaim, ordering Ofelia Parungao
to pay defendant defendants the sum of Two
Thousand (P2,000.00) Pesos as and for attorney's
fees.'
Parungao appealed the decision to the then Intermediate Appellate
Court. The decision was, however, affirmed, with costs against the
appellant.
The Intermediate Appellate Court decision is now the subject
matter in G.R. Nos. 73241-42.
On January 29, 1986, we issued a minute resolution denying the
above petition for lack of merit. The resolution became final and
executory on March 10, 1986 and on this same day the entry of
judgment was effected. The entry of judgment was however set
aside in the resolution dated January 19, 1987 on the ground that
the January 29, 1986 resolution was not received by the
petitioners' counsel of record. The petitioner was granted leave to
file a motion for reconsideration of the January 29, 1986 resolution.
The motion for reconsideration is now before us for resolution
petition.
The issues raised in these petitions are two-fold: (1) In G.R. No. L-
45394, petitioner Pedro Dalusong questions the jurisdiction of the
probate court to exclude the properties donated to Ursula Pascual
in its Order dated August 1, 1976, and (2) In G.R. No. L-45262 and
G.R. Nos. 73241-42 Ruperto Reyes, Reynaldo C. San Juan, in his
capacity as special administrator of the estate of Emilio Pascual
(petitioner in G.R. No.
L- 45262), Ofelia Parungao and Rosario Duncil (petitioners in G.R.
Nos. 7324142) question the appellate court's finding that the
"Donation Mortis Causa" executed by Emilio Pascual in favor of his
sister Ursula Pascual was actually a Donation Inter Vivos.
We first discuss the issue on jurisdiction. The questioned August
1, 1976 order of the then Court of First Instance of Pampanga in
S.P. Proc. No. 73-30-M categorically stated that the exclusion from
the inventory of the estate of the deceased Dr. Emilio D. Pascual
was "without prejudice to its final determination in a separate
action." The provisional character of the exclusion of the contested
properties in the inventory as stressed in the order is within the
jurisdiction of the probate court. This was stressed in the case
of Cuizon v. Ramolete (129 SCRA 495 [1984]) which we cited in
the case of Morales v. Court of First Instance of Cavite, Branch
V (146 SCRA 373 [1986]):
It is well-settled rule that a probate court or one in
charge of proceedings whether testate or intestate
cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are
equally claimed to belong to outside parties. All that
the said court could do as regards said properties
is to determine whether they should or should not
be included in the inventory or list of properties to
be administered by the administrator. If there is no
dispute, well and good; but if there is, then the
parties, the administrator, and the opposing parties
have to resort to an ordinary action for a final
determination of the conflicting claims of title
because the probate court cannot do so (Mallari v.
Mallari, 92 Phil. 694; Baquial v. Amihan, 92 Phil.
501). i•t•c-aüsl
Similarly, in Valero Vda. de Rodriguez v. Court of
Appeals, (91 SCRA 540) we held that for the
purpose of determining whether a certain property
should or should not be included in the inventory,
the probate court may pass upon the title thereto
but such determination is not conclusive and is
subject to the final decision in a separate action
regarding ownership which may be instituted by the
parties (3 Moran's Comments on the Rules of
 Court, 1970 Edition, pages 448449 and 473;
Lachenal v. Salas,
L-42257, June 14, 1976, 71 SCRA 262, 266).
On the second issue, it may be noted that the Court of Appeals did
not pass upon the authenticity of the 1969 donation to Parungao
because of its finding that the 1966 donation to Pascual was inter
vivos. The petitioners do not press the authenticity of the 1969
donation as their challenge centers on whether or not the 1966
donation was inter vivos. However, the trial court has a lengthy
discussion reflecting adversely on the authenticity of the 1969
donation to Parungao.
The petitioners assert that the 1966 donation was null and void
since it was not executed with the formalities of a will. Therefore,
the petitioners in G.R. No. L-45262 insist that the donated
properties should revert to the estate of Emilio Pascual while the
petitioners in G.R. Nos. 73241-42 insist that the donation of real
property inter vivos in favor of Ofelia Parungao be given effect.
The subject deed of donation titled "DONATION MORTIS CAUSA"
duly notarized by a certain Cornelio M. Sigua states:
That Dr. Emilio D. Pascual, Filipino, single, of age
and resident of Apalit, Pampanga, hereinafter
called the DONOR and Ursula D. Pascual, Filipino,
single, also of age, resident of and with postal
address at Apalit, Pampanga, hereinafter called
the DONEE, have agreed, as they do hereby
agree, to the following, to wit:
That the said DONOR, Dr. Emilio D. Pascual, for
and in consideration of the love and affection which
he has and bears unto the said DONEE, as also for
the personal services rendered by the said DONEE
to the said DONOR, does hereby by these presents
voluntarily GIVE, GRANT, and DONATE MORTIS
CAUSA unto the said DONEE URSULA D.
PASCUAL, her heirs and assigns, all of my rights,
title and interest, in and to the following parcels of
land with all the improvements thereon, situated in
the Municipality of Apalit, Pampanga, and more
particularly described and Identified as follows:
xxx xxx xxx
(Enumerated herein are 41 parcels of land)
Also included in this DONATION MORTIS CAUSA
are all personal properties of the DONOR in the
form of cash money or bank deposits and
insurance in his favor, and his real properties
situated in other towns of Pampanga, such as San
Simon, and in the province of Rizal, San Francisco
del Monte and in the City of Manila.
That the said donor has reserved for himself
sufficient property to maintain him for life; and that
the said DONEE does hereby ACCEPT and
RECEIVE this DONATION MORTIS CAUSA and
further does express his appreciation and
gratefulness for the generosity of said DONOR;
(Rollo of G.R. No. L-45262, pp. 12-16)
xxx xxx xxx
Considering the provisions of the DONATION MORTIS CAUSA the
appellate court ruled that the deed of donation was actually a
donation inter vivos although denominated as DONATION
MORTIS CAUSA.
It is, now a settled rule that the title given to a deed of donation is
not the determinative factor which makes the donation "inter vivos"
or "mortis causa" As early as the case of Laureta v. Manta, et al.,
(44 Phil. 668 [1928]) this Court ruled that the dispositions in a deed
of donation-whether "inter vivos" or "mortis causa" do not depend
on the title or term used in the deed of donation but on the
provisions stated in such deed. This Court explained
in Concepcion v. Concepcion (91 Phil. 823 [1952]) —
...But, it is a rule consistently followed by the courts
that it is the body of the document of donation and
the statements contained therein, and not the title
that should be considered in ascertaining the
intention of the donor. Here, the donation is entitled
and called donacion onerosa mortis causa. From
the body, however, we find that the donation was
of a nature remunerative rather than onerous. It
was for past services rendered, services which
may not be considered as a debt to be paid by the
donee but services rendered to her freely and in
goodwill. The donation instead of being onerous or
for a valuable consideration, as in payment of a
legal obligation, was more of remuneratory or
compensatory nature, besides being partly
motivated by affection.
We should not give too much importance or
significance to or be guided by the use of the
phrase 'mortis causa in a donation and thereby to
conclude that the donation is not one of inter vivos.
In the case of De Guzman et al. v. Ibea et al. (67
Phil. 633), this Court through Mr. Chief Justice
Avancena said that if a donation by its terms is inter
vivos, this character is not altered by the fact that
the donor styles it mortis causa.
In the case of Laureta v. Mata, et al. (44 Phil. 668),
the court held that the donation involved was inter
vivos. There, the donor Severa Magno y Laureta
gave the properties involved as —
... a reward for the services which he is rendering
me, and as a token of my affection toward him and
of the fact that he stands high in my estimation, I
hereby donate 'mortis causa to said youth all the
properties described as follows:
xxx xxx xxx
I also declare that it is the condition of this donation
that the donee cannot take possession of the
properties donated before the death of the donor,
and in the event of her death the said donee shall
be under obligation to cause a mass to be held
annually as a suffrage in behalf of my sold, and
also to defray the expenses of my burial and
funerals.'
It will be observed that the present case and that of
Laureta above cited are similar in that in both cases
the donation was being made as a reward for
services rendered and being rendered, and as a
token of affection for the donee; the phrase 'mortis
causa was used; the donee to take possession of
the property donated only after the death of the
donor; the donee was under obligation to defray the
expenses incident to the celebration of the
anniversary of the donor's death, including church
fees. The donation in both cases were duly
accepted. In said case of Laureta this Court held
that the donation was in praesenti and not a gift in
futuro.
In the later case of Bonsato et al. v. Court of appeals, et al. (95
Phil. 481 [1954]) this Court, distinguished the characteristics of a
donation inter vivos and "mortis causa" in this wise:
 Did the late Domingo Bonsato, make donations
inter vivos or dispositions post mortem in favor of
the petitioners herein? If the latter, then the
documents should reveal any or all of the following
characteristics:
(1) Convey no title or ownership to the transferee
before the death of the transferor; or, what amounts
to the same thing, that the transferor should retain
the ownership (fun or naked) and control of the
property while alive (Vidal v. Posadas, 58 Phil.,
108; Guzman v. Ibea 67 Phil., 633);
(2) That before his death, the transfer should be
revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by
means of a reserved power in the donor to dispose
of the properties conveyed (Bautista v. Sabiniano,
G.R. No. L- 4326, November 18, 1952);
(3) That the transfer should be void if the transferor
should survive the transferee.
These principles were repeated in the case of Castro v. Court of
Appeals (27 SCRA 1076 [1969]), to wit:
Whether a donation is inter vivos or mortis causa
depends upon the nature of the disposition made.
'Did the donor intend to transfer the ownership of
the property donated upon the execution of the
donation? If this is so, as reflected from the
provisions contained in the donation, then it is inter
vivos; otherwise, it is merely mortis causa, or made
to take effect after death.' (Howard v. Padilla and
Court of Appeals, G.R. No. L-7064 and L-7098,
April 22, 1955.
Applying the above principles to the instant petitions, there is no
doubt that the so-called DONATION MORTIS CAUSA is really a
donation inter vivos. The donation was executed by Dr. Pascual in
favor of his sister Ursula Pascual out of love and affection as well
as a recognition of the personal services rendered by the donee to
the donor. The transfer of ownership over the properties donated
to the donee was immediate and independent of the death of the
donor. The provision as regards the reservation of properties for
the donor's subsistence in relation to the other provisions of the
deed of donation confirms the intention of the donor to give naked
ownership of the properties to the donee immediately after the
execution of the deed of donation.
With these findings we find no need to discuss the other arguments
raised by the petitioners.
WHEREFORE, this Court hereby renders judgment as follows:
1) In G.R. Nos. 45262 and 45394 the petitions are DENIED. The
Temporary Restraining Order issued on January 5, 1977 is hereby
LIFTED; and
2) In G.R. Nos. 73241-42, the motion for reconsideration is
DENIED. This DENIAL is FINAL.
SO ORDERED.
 THIRD DIVISION
[G. R. No. 123968. April 24, 2003]
The facts, as culled from the records of the case,
are as follows:
On April 11, 1958, Celestina Ganuelas Vda. de
Valin (Celestina) executed a Deed of Donation of
Real Property covering seven parcels of land in
[2]

favor of her niece Ursulina Ganuelas (Ursulina), one

URSULINA GANUELAS, METODIO of herein petitioners.
GANUELAS and ANTONIO The pertinent provision of the deed of donation
GANUELAS, vs. HON. ROBERT T. reads, quoted verbatim:
CAWED, Judge of the Regional Trial
Court of San Fernando, La Union xxx
(Branch 29), LEOCADIA G. FLORES,
FELICITACION G. AGTARAP, CORAZON That, for and in consideration of the love and affection
G. SIPALAY and ESTATE OF ROMANA which the DONOR has for the DONEE, and of the
GANUELAS DE LA ROSA, represented faithful services the latter has rendered in the past to the
by GREGORIO DELA ROSA, former, the said DONOR does by these presents transfer
Administrator, respondent. and convey, by way of DONATION, unto the DONEE
the property above, described, to become effective upon
DECISION the death of the DONOR; but in the event that the
DONEE should die before the DONOR, the present
CARPIO-MORALES, J.:
donation shall be deemed rescinded and of no further
force and effect.
The present petition for review under Rule 45 of
the Rules of Court assails, on a question of law, the x x x. [3]

February 22, 1996 decision of the Regional Trial

[1]

Court of San Fernando, La Union, Branch 29, in On June 10, 1967, Celestina executed a
Civil Case No. 3947, an action for declaration of document denominated as Revocation of
nullity of a deed of donation. Donation purporting to set aside the deed of
[4]

donation. More than a month later or on August 18,

1967, Celestina died without issue and any
surviving ascendants and siblings.
After Celestinas death, Ursulina had been
sharing the produce of the donated properties with
private respondents Leocadia G. Flores, et al.,
nieces of Celestina.
In 1982, or twenty-four years after the execution
of the Deed of Donation, Ursulina secured the
corresponding tax declarations, in her name, over
the donated properties, to wit: Tax Declarations
Nos. 18108, 18109, 18110, 18111, 18112, 18113
and 18114, and since then, she refused to give
private respondents any share in the produce of the
properties despite repeated demands.
Private respondents were thus prompted to file
on May 26, 1986 with the RTC of San Fernando, La
Union a complaint against Ursulina, along with
[5]
Metodio Ganuelas and Antonio Ganuelas who were
alleged to be unwilling plaintiffs. The complaint
alleged that the Deed of Donation executed by
Celestina in favor of Ursulina was void for lack of
acknowledgment by the attesting witnesses thereto
before notary public Atty. Henry Valmonte, and the
donation was a disposition mortis causa which
failed to comply with the provisions of the Civil Code
regarding formalities of wills and testaments, hence,
it was void. The plaintiffs-herein private
respondents thus prayed that judgment be rendered
ordering Ursulina to return to them as intestate heirs
the possession and ownership of the
properties. They likewise prayed for the cancellation
of the tax declarations secured in the name of
Ursulina, the partition of the properties among the
intestate heirs of Celestina, and the rendering by
Ursulina of an accounting of all the fruits of the
properties since 1982 and for her to return or pay
the value of their shares.
The defendants-herein petitioners alleged in
their Answer that the donation in favor of Ursulina
[6]
was inter vivos as contemplated under Article 729
of the Civil Code, hence, the deed did not have to
[7]
comply with the requirements for the execution of a
valid will; the Revocation of Donation is null and void
as the ground mentioned therein is not among those
provided by law to be the basis thereof; and at any
rate, the revocation could only be legally enforced
upon filing of the appropriate complaint in court
within the prescriptive period provided by law, which
period had, at the time the complaint was filed,
already lapsed.
By Decision of February 22, 1996, the trial court,
holding that the provision in the Deed of Donation
that in the event that the DONEE should
predecease the DONOR, the donation shall be
deemed rescinded and of no further force and effect
is an explicit indication that the deed is a
donation mortis causa, found for the plaintiffs-
[8]
herein private respondents, thus:
WHEREFORE the Court renders judgment declaring
null and void the Deed of Donation of Real Property
executed by Celestina Ganuelas, and orders the partition
of the estate of Celestina among the intestate heirs.
SO ORDERED. [9]
The trial court also held that the absence of a
reservation clause in the deed implied that
Celestina retained complete dominion over her
properties, thus supporting the conclusion that the
donation is mortis causa, and that while the deed
[10]
contained an attestation clause and an
acknowledgment showing the intent of the donor to
effect a postmortem disposition, the
acknowledgment was defective as only the donor
and donee appear to have acknowledged the deed
before the notary public, thereby rendering the
entire document void. [11]
Lastly, the trial court held that the subsequent
execution by Celestina of the Revocation of
Donation showed that the donor intended the
revocability of the donation ad nutum, thus
sustaining its finding that the conveyance
was mortis causa. [12]
On herein petitioners argument that the
Revocation of Donation was void as the ground
mentioned therein is not one of those allowed by law
to be a basis for revocation, the trial court held that
the legal grounds for such revocation as provided
under the Civil Code arise only in cases of
donations inter vivos, but not in donations mortis
causa which are revocable at will during the lifetime
of the donor. The trial court held, in any event, that
given the nullity of the disposition mortis causa in
view of a failure to comply with the formalities
required therefor, the Deed of Revocation was a
superfluity.
[13]
Hence, the instant petition for review, petitioners
contending that the trial court erred:
I. . . . WHEN IT DECLARED NULL AND
VOID THE DONATION EXECUTED
BY CELESTINA GANUELAS;
II. . . . WHEN IT UPHELD THE
REVOCATION OF DONATION;
III. . . . IN RENDERING ITS DECISION
ADVERSE TO PETITIONER
URSULINA GANUELAS. [14]
Petitioners argue that the donation contained in
the deed is inter vivos as the main consideration for
its execution was the donors affection for the donee
rather than the donors death; that the provision on
[15]
the effectivity of the donationafter the donors
deathsimply meant that absolute ownership would
pertain to the donee on the donors death; and that
[16]
since the donation is inter vivos, it may be revoked
only for the reasons provided in Articles
760, 764 and 765 of the Civil Code.
[17] [18] [19]
In a letter of March 16, 1998, private [20]
respondent Corazon Sipalay, reacting to this Courts
January 28, 1998 Resolution requiring private
respondents to SHOW CAUSE why they should not
be disciplinarily dealt with or held in contempt for
failure to submit the name and address of their new
counsel, explains that they are no longer interested
in pursuing the case and are willing and ready to
waive whatever rights they have over the properties
subject of the donation. Petitioners, who were
required to comment on the letter, by Comment of
October 28, 1998, welcome private respondents
[21]
gesture but pray that for the sake of enriching
jurisprudence, their [p]etition be given due course
and resolved.
The issue is thus whether the donation is inter
vivos or mortis causa.
Crucial in the resolution of the issue is the
determination of whether the donor intended to
transfer the ownership over the properties upon the
execution of the deed. [22]
Donation inter vivos differs from donation mortis
causa in that in the former, the act is immediately
operative even if the actual execution may be
deferred until the death of the donor, while in the
latter, nothing is conveyed to or acquired by the
donee until the death of the donor-testator. The [23]
following ruling of this Court in Alejandro v.
Geraldez is illuminating: [24]
If the donation is made in contemplation of the donors
death, meaning that the full or naked ownership of the
donated properties will pass to the donee only because
of the donors death, then it is at that time that the
donation takes effect, and it is a donation mortis
causa which should be embodied in a last will and
testament.
But if the donation takes effect during the donors
lifetime or independently of the donors death, meaning
that the full or naked ownership (nuda proprietas) of the
donated properties passes to the donee during the donors
lifetime, not by reason of his death but because of the
deed of donation, then the donation is inter vivos.
The distinction between a transfer inter
vivos and mortis causa is important as the validity
or revocation of the donation depends upon its
nature. If the donation is inter vivos, it must be
executed and accepted with the formalities
prescribed by Articles 748 and 749 of the Civil
[25] [26]
Code, except when it is onerous in which case the
rules on contracts will apply. If it is mortis causa, the
donation must be in the form of a will, with all the
formalities for the validity of wills, otherwise it is void
and cannot transfer ownership. [27]
The distinguishing characteristics of
donation mortis causa are the following:
1. It conveys no title or ownership to the transferee
before the death of the transferor; or, what amounts to
the same thing, that the transferor should retain the
ownership (full or naked) and control of the property
while alive;
2. That before his death, the transfer should be
revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of
a reserved power in the donor to dispose of the
properties conveyed;
3. That the transfer should be void if the transferor
should survive the transferee.[28]
In the donation subject of the present case,
there is nothing therein which indicates that any
right, title or interest in the donated properties was
to be transferred to Ursulina prior to the death of
Celestina.
The phrase to become effective upon the death
of the DONOR admits of no other interpretation but
that Celestina intended to transfer the ownership of
the properties to Ursulina on her death, not during
her lifetime.
[29]
a More importantly, the provision in the deed
stating that if the donee should die before the donor,
the donation shall be deemed rescinded and of no
further force and effect shows that the donation is a
postmortem disposition.
As stated in a long line of cases, one of the
decisive characteristics of a donation mortis
causa is that the transfer should be considered void
if the donor should survive the donee. [30]
More. The deed contains an attestation clause
expressly confirming the donation as mortis causa:
SIGNED by the above-named donor, Celestina
Ganuelas, at the foot of this deed of donation mortis
causa, consisting of two (2) pages and on the left
margin of each and every page thereof in the joint
presence of all of us who at her request and in her
presence and that of each other have in like manner
subscribed our names as witnesses. (Emphasis
[31]
supplied)
To classify the donation as inter vivos simply
because it is founded on considerations of love and
affection is erroneous. That the donation was
prompted by the affection of the donor for the donee
and the services rendered by the latter is of no
particular significance in determining whether the
deed constitutes a transfer inter vivos or not,
because a legacy may have an identical
motivation. In other words, love and affection may
[32]
also underline transfers mortis causa. [33]
In Maglasang v. Heirs of Cabatingan, the [34]
deeds of donation contained provisions almost
identical to those found in the deed subject of the
present case:
That for and in consideration of the love and affection
of the DONOR for the DONEE, x x x the DONOR does
hereby, by these presents, transfer, convey, by way of
donation, unto the DONEE the above-described
property, together with the buildings and all
improvements existing thereon, to become effective
upon the death of the DONOR; PROVIDED,
HOWEVER, that in the event that the DONEE should
die before the DONOR, the present donation shall be
deemed automatically rescinded and of no further force
and effect.(Underscoring supplied)
In that case, this Court held that the donations
were mortis causa, for the above-quoted provision
conclusively establishes the donors intention to
transfer the ownership and possession of the
donated property to the donee only after the formers
death. Like in the present case, the deeds therein
did not contain any clear provision that purports to
pass proprietary rights to the donee prior to the
donors death.
As the subject deed then is in the nature of
a mortis causa disposition, the formalities of a will
under Article 728 of the Civil Code should have
been complied with, failing which the donation is
void and produces no effect. [35]
As noted by the trial court, the attesting
witnesses failed to acknowledge the deed before
the notary public, thus violating Article 806 of the
Civil Code which provides:
Art. 806. Every will must be acknowledged before a
notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of
the will, or file another with the office of the Clerk of
Court. (Emphasis supplied)
The trial court did not thus commit any reversible
error in declaring the Deed of Donation to be mortis
causa.
WHEREFORE, the petition is hereby DENIED
for lack of merit.
SO ORDERED.