G.R. No. 189776               December 15, 2010 j.

j. Rental receivables from Raul Arellano per Order issued by Branch 64 of the Court on November 17, 1995.
AMELIA P. ARELLANO, represented by her duly appointed guardians, AGNES P. ARELLANO and NONA P. 5. AND the properties are partitioned as follows:
ARELLANO, Petitioner, a. To heir Amelia P. Arellano-the property covered by TCT No. 181889;
vs. b. To heirs Francisco N. Pascual and Miguel N. Pascual-the real properties covered by TCT Nos. 348341 and 119063 of
FRANCISCO PASCUAL and MIGUEL PASCUAL, Respondents. the Register of Deeds of Makati City and the property covered by OCT No. 2159, to be divided equally between them up
DECISION to the extent that each of their share have been equalized with the actual value of the property in 5(a) at the time of
CARPIO MORALES, J.: donation, the value of which shall be determined by an independent appraiser to be designated by Amelia P. Arellano,
Angel N. Pascual Jr. died intestate on January 2, 1999 leaving as heirs his siblings, namely: petitioner Amelia P. Miguel N. Pascual and Francisco N. Pascual. If the real properties are not sufficient to equalize the shares, then
Arellano who is represented by her daughters1 Agnes P. Arellano (Agnes) and Nona P. Arellano, and respondents Francisco’s and Miguel’s shares may be satisfied from either in cash property or shares of stocks, at the rate of quotation.
Francisco Pascual and Miguel N. Pascual.2 The remaining properties shall be divided equally among Francisco, Miguel and Amelia. (emphasis and underscoring
In a petition for "Judicial Settlement of Intestate Estate and Issuance of Letters of Administration," docketed as Special supplied)
Proceeding Case No. M-5034, filed by respondents on April 28, 2000 before the Regional Trial Court (RTC) of Makati, Before the Court of Appeals, petitioner faulted the trial court in holding that
respondents alleged, inter alia, that a parcel of land (the donated property) located in Teresa Village, Makati, which was, I. . . THE PROPERTY DONATED TO APPELLANT AMELIA PASCUAL ARELLANO IS PART OF THE
by Deed of Donation, transferred by the decedent to petitioner the validity of which donation respondents assailed, "may ESTATE OF ANGEL PASCUAL, JR.
be considered as an advance legitime" of petitioner. II. . . THE PROPERTY DONATED TO APPELLANT IS SUBJECT TO COLLATION UNDER ARTICLE 1061 OF
Respondent’s nephew Victor was, as they prayed for, appointed as Administrator of the estate by Branch 135 of the THE NEW CIVIL CODE.
Makati RTC.3 III. . . APPELLEES WHO ARE MERELY COLLATERAL RELATIVES OF DECEASED ANGEL N. PASCUAL JR.
Respecting the donated property, now covered in the name of petitioner by Transfer Certificate of Title No. 181889 of AS HIS COMPULSORY HEIRS ENTITLED TO LEGITIMES.
the Register of Deeds of Makati, which respondents assailed but which they, in any event, posited that it "may be and
considered as an advance legitime" to petitioner, the trial court, acting as probate court, held that it was precluded from V. . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL JR. EQUALLY AMONG HIS LEGAL OR
determining the validity of the donation. INTESTATE HEIRS.6 (underscoring supplied)
Provisionally passing, however, upon the question of title to the donated property only for the purpose of determining By Decision7 of July 20, 2009, the Court of Appeals found petitioner’s appeal "partly meritorious." It sustained the
whether it formed part of the decedent’s estate,4 the probate court found the Deed of Donation valid in light of the probate court’s ruling that the property donated to petitioner is subject to collation in this wise:
presumption of validity of notarized documents. It thus went on to hold that it is subject to collation following Article Bearing in mind that in intestate succession, what governs is the rule on equality of division, We hold that the property
1061 of the New Civil Code which reads:5 subject of donation inter vivos in favor of Amelia is subject to collation. Amelia cannot be considered a creditor of the
Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or decedent and we believe that under the circumstances, the value of such immovable though not strictly in the concept of
right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other advance legitime, should be deducted from her share in the net hereditary estate. The trial court therefore committed no
gratuitous title in order that it may be computed in the determination of the legitime of each heir, and in the account of reversible error when it included the said property as forming part of the estate of Angel N. Pascual.8 (citation omitted;
the partition. emphasis and underscoring supplied)1avvph!1
The probate court thereafter partitioned the properties of the intestate estate. Thus it disposed: The appellate court, however, held that, contrary to the ruling of the probate court, herein petitioner "was able to submit
WHEREFORE, premises considered, judgment is hereby rendered declaring that: prima facie evidence of shares of stocks owned by the [decedent] which have not been included in the inventory
1. The property covered by TCT No. 181889 of the Register of Deeds of Makati as part of the estate of Angel N. submitted by the administrator."
Pascual; Thus, the appellate court disposed, quoted verbatim:
2. The property covered by TCT No. 181889 to be subject to collation; WHEREFORE, premises considered, the present appeal is hereby PARTLY GRANTED. The Decision dated January
3. 1/3 of the rental receivables due on the property at the mezzanine and the 3rd floor of Unit 1110 Tanay St., Makati 29, 2008 of the Regional Trial Court of Makati City, Branch 135 in Special Proceeding Case No. M-5034 is
City form part of the estate of Angel N. Pascual; hereby REVERSED and SET ASIDE insofar as the order of inclusion of properties of the Intestate Estate of Angel N.
4. The following properties form part of the estate of Angel N. Pascual: Pascual, Jr. as well as the partition and distribution of the same to the co-heirs are concerned.
a. 1/3 share in the House and Lot at 1110 Tanay St., Rizal Village Makati TCT No. 348341 and 1/3 share in the rental The case is hereby REMANDED to the said court for further proceedings in accordance with the disquisitions
income thereon; herein.9 (underscoring supplied)
b. 1/3 share in the Vacant Lot with an area of 271 square meters located at Tanay St., Rizal Village, Makati City, TCT Petitioner’s Partial Motion for Reconsideration10 having been denied by the appellate court by Resolution11 of October 7,
No. 119063; 2009, the present petition for review on certiorari was filed, ascribing as errors of the appellate court its ruling
c. Agricultural land with an area of 3.8 hectares located at Puerta Galera Mindoro covered by OCT No. P-2159; I. . . THAT THE PROPERTY DONATED BY ANGEL N. PASCUAL, JR. TO PETITIONER AMELIA PASCUAL
d. Shares of stocks in San Miguel Corporation covered by the following Certificate Numbers: A0011036, A006144, ARELLANO IS PART OF HIS ESTATE AT THE TIME OF HIS DEATH.
A082906, A006087, A065796, A11979, A049521, C86950, C63096, C55316, C54824, C120328, A011026, C12865, II. . . THAT THE PROPERTY DONATED TO PETITIONER IS SUBJECT TO COLLATION UNDER ARTICLE
A10439, A021401, A007218, A0371, S29239, S40128, S58308, S69309; 1061 OF THE NEW CIVIL CODE.
e. Shares of stocks in Paper Industries Corp. covered by the following Certificate Numbers: S29239, S40128, S58308, III. . . THAT RESPONDENTS ARE COMPULSORY HEIRS OF THEIR DECEASED BROTHER ANGEL N.
S69309, A006708, 07680, A020786, S18539, S14649; PASCUAL JR. AND ARE ENTITLED TO LEGITIMES.
f. ¼ share in Eduardo Pascual’s shares in Baguio Gold Mining Co.; IV. . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL, JR. EQUALLY AMONG PETITIONER
g. Cash in Banco De Oro Savings Account No. 2 014 12292 4 in the name of Nona Arellano; AND RESPONDENTS, AS HIS LEGAL OR INTESTATE HEIRS.12 (underscoring supplied)
i. Property previously covered by TCT No. 119053 now covered by TCT No. 181889, Register of Deeds of Makati City;
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Petitioners thus raise the issues of whether the property donated to petitioner is subject to collation; and whether the
property of the estate should have been ordered equally distributed among the parties. On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a document entitled "Donation Mortis
On the first issue: Causa"[1] in favor of their two children, Asuncion and Emiliano, and their granddaughter, Jarabini (daughter of their
The term collation has two distinct concepts: first, it is a mere mathematical operation by the addition of the value of predeceased son, Zoilo) covering the spouses' 126-square meter lot and the house on it in Pandacan, Manila[2] in equal
donations made by the testator to the value of the hereditary estate; and second, it is the return to the hereditary estate of shares.  The deed of donation reads:
property disposed of by lucrative title by the testator during his lifetime.13 It is our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the surviving spouse.
The purposes of collation are to secure equality among the compulsory heirs in so far as is possible, and to determine the
free portion, after finding the legitime, so that inofficious donations may be reduced.14 It is our will that Jarabini Gonzales-del Rosario and Emiliano Gonzales will continue to occupy the portions now
Collation takes place when there are compulsory heirs, one of its purposes being to determine the legitime and the free occupied by them.
portion. If there is no compulsory heir, there is no legitime to be safeguarded.15
The records do not show that the decedent left any primary, secondary, or concurring compulsory heirs. He was only It is further our will that this DONATION MORTIS CAUSA shall not in any way affect any other distribution of
survived by his siblings, who are his collateral relatives and, therefore, are not entitled to any legitime – that part of the other properties belonging to any of us donors whether testate or intestate and where ever situated.
testator’s property which he cannot dispose of because the law has reserved it for compulsory heirs.16
The compulsory heirs may be classified into (1) primary, (2) secondary, and (3) concurring. The primary compulsory It is our further will that any one surviving spouse reserves the right, ownership, possession and administration of
heirs are those who have precedence over and exclude other compulsory heirs; legitimate children and descendants are this property herein donated and accepted and this Disposition and Donation shall be operative and effective
primary compulsory heirs. The secondary compulsory heirs are those who succeed only in the absence of the primary upon the death of the DONORS.[3]
heirs; the legitimate parents and ascendants are secondary compulsory heirs. The concurring compulsory heirs are those
who succeed together with the primary or the secondary compulsory heirs; the illegitimate children, and the surviving Although denominated as a donation mortis causa, which in law is the equivalent of a will, the deed had no attestation
spouse are concurring compulsory heirs.17 clause and was witnessed by only two persons.  The named donees, however, signified their acceptance of the donation
The decedent not having left any compulsory heir who is entitled to any legitime, he was at liberty to donate all his on the face of the document.
properties, even if nothing was left for his siblings-collateral relatives to inherit. His donation to petitioner, assuming that
it was valid,18 is deemed as donation made to a "stranger," chargeable against the free portion of the estate. 19 There being Guadalupe, the donor wife, died in September 1968.  A few months later or on December 19, 1968, Leopoldo, the donor
no compulsory heir, however, the donated property is not subject to collation. husband, executed a deed of assignment of his rights and interests in subject property to their daughter Asuncion.
On the second issue: Leopoldo died in June 1972.
The decedent’s remaining estate should thus be partitioned equally among his heirs-siblings-collateral relatives, herein
petitioner and respondents, pursuant to the provisions of the Civil Code, viz: In 1998 Jarabini filed a "petition for the probate of the August 27, 1968 deed of donation mortis causa" before the
Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives Regional Trial Court (RTC) of Manila in Sp. Proc. 98-90589.[4]  Asuncion opposed the petition, invoking his father
shall succeed to the entire estate of the deceased in accordance with the following articles. (underscoring supplied) Leopoldo's assignment of his rights and interests in the property to her.
Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.
(emphasis and underscoring supplied) After trial, the RTC rendered a decision dated June 20, 2003,[5] finding that the donation was in fact one made inter vivos,
WHEREFORE, the petition is GRANTED. The Court of Appeals Decision ordering the collation of the property the donors' intention being to transfer title over the property to the donees during the donors' lifetime, given its
donated to petitioner, Amelia N. Arellano, to the estate of the deceased Angel N. Pascual, Jr. is set aside. irrevocability.  Consequently, said the RTC, Leopoldo's subsequent assignment of his rights and interest in the property
Let the records of the case be REMANDED to the court of origin, Branch 135 of the Makati Regional Trial Court, which was void since he had nothing to assign.  The RTC thus directed the registration of the property in the name of the
is ordered to conduct further proceedings in the case for the purpose of determining what finally forms part of the estate, donees in equal shares.[6]
and thereafter to divide whatever remains of it equally among the parties.
On Asuncion's appeal to the Court of Appeals (CA), the latter rendered a decision on December 23, 2008,[7] reversing
[G.R. No. 187056 : September 20, 2010] that of the RTC.  The CA held that Jarabini cannot, through her petition for the probate of the deed of donation mortis
causa, collaterally attack Leopoldo's deed of assignment in Asuncion's favor.  The CA further held that, since no
JARABINI G. DEL ROSARIO, PETITIONER, VS. ASUNCION G. FERRER, SUBSTITUTED BY HER HEIRS, proceeding exists for the allowance of what Jarabini claimed was actually a donation inter vivos, the RTC erred in
VICENTE, PILAR, ANGELITO, FELIXBERTO, JR., ALL SURNAMED G. FERRER, AND MIGUELA deciding the case the way it did.  Finally, the CA held that the donation, being one given mortis causa, did not comply
FERRER ALTEZA, RESPONDENTS. with the requirements of a notarial will,[8]  rendering the same void.  Following the CA's denial of Jarabini's motion for
reconsideration,[9] she filed the present petition with this Court.
ABAD, J.: Issue Presented

This case pertains to a gift, otherwise denominated as a donation mortis causa, which in reality is a donation inter The key issue in this case is whether or not the spouses Leopoldo and Guadalupe's donation to Asuncion, Emiliano, and
vivos made effective upon its execution by the donors and acceptance thereof by the donees, and immediately Jarabini was a donation mortis causa, as it was denominated, or in fact a donation inter vivos.
transmitting ownership of the donated property to the latter, thus precluding a subsequent assignment thereof by one of The Court's Ruling
the donors.
The Facts and the Case That the document in question in this case was captioned "Donation Mortis Causa" is not controlling.  This Court has
held that, if a donation by its terms is inter vivos, this character is not altered by the fact that the donor styles it mortis
2
causa.[10] WHEREFORE, the Court GRANTS the petition, SETS ASIDE the assailed December 23, 2008 Decision and March
6, 2009 Resolution of the Court of Appeals in CA-G.R. CV 80549, and REINSTATES in toto the June 20, 2003
In Austria-Magat v. Court of Appeals,[11] the Court held that "irrevocability" is a quality absolutely incompatible with the Decision of the Regional Trial Court of Manila, Branch 19, in Sp. Proc. 98-90589.
idea of conveyances mortis causa, where "revocability" is precisely the essence of the act.  A donation mortis causa has
the following characteristics:
G.R. No. 131953           June 5, 2002
1. It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and MERLY S. CABATINGAN, petitioners,
same thing, that the transferor should retain the ownership (full or naked) and control of the property while vs.
alive; THE HEIRS OF CORAZON CABATINGAN, namely, LUZ M. BOQUIA, PERLA M. ABELLA, ESTRELLA M.
CAÑETE, LOURDES M. YUSON, and JULIA L. MAYOL, HEIRS OF GENOVIVA C. NATIVIDAD namely,
2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability OSCAR C. NATIVIDAD, OLGA NATIVIDAD, ODETTE NATIVIDAD, OPHELIA NATIVIDAD, RICHARD
may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; NATIVIDAD, RAYMUND NATIVIDAD, RICHIE NATIVIDAD, SONIA NATIVIDAD and ENCARNACION
and CABATINGAN VDA. DE TRINIDAD, ALFREDO CABATINGAN and JESUSA C. NAVADA, respondents.
AUSTRIA-MARTINEZ, J.:
3. That the transfer should be void if the transferor should survive the transferee. [12]  Posed for resolution before the Court in this petition for review on certiorari filed under Rule 45 of the Rules of Court is
the sole issue of whether the donations made by the late Conchita Cabatingan are donations inter vivos or mortis causa.
The Court thus said in Austria-Magat that the express "irrevocability" of the donation is the "distinctive standard that The facts of the case are as follows:
identifies the document as a donation inter vivos."  Here, the donors plainly said that it is "our will that this On February 17, 1992, Conchita Cabatingan executed in favor of her brother, petitioner Nicolas Cabatingan, a "Deed of
Donation Mortis Causa shall be irrevocable and shall be respected by the surviving spouse."  The intent to make the Conditional of Donation (sic) Inter Vivos for House and Lot" covering one-half (½) portion of the former's house and lot
donation irrevocable becomes even clearer by the proviso that a surviving donor shall respect the irrevocability of the located at Cot-cot, Liloan, Cebu.1 Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan
donation.  Consequently, the donation was in reality a donation inter vivos. on January 14, 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land - one located in Cogon,
Cebu (307 sq. m.) and the other, a portion of a parcel of land in Masbate (50,232 sq. m.); (b) petitioner Nicolas
The donors in this case of course reserved the "right, ownership, possession, and administration of the property" and Cabatingan, a portion of a parcel of land located in Masbate (80,000 sq. m.); and (c) petitioner Merly S. Cabatingan, a
made the donation operative upon their death.  But this Court has consistently held that such reservation (reddendum) in portion of the Masbate property (80,000 sq. m.).2 These deeds of donation contain similar provisions, to wit:
the context of an irrevocable donation simply means that the donors parted with their naked title, maintaining "That for and in consideration of the love and affection of the DONOR for the DONEE, x x x the DONOR
only beneficial ownership of the donated property while they lived.[13] 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
Notably, the three donees signed their acceptance of the donation, which acceptance the deed required. [14]  This Court has death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the
held that an acceptance clause indicates that the donation is inter vivos, since acceptance is a requirement only for such DONOR, the present donation shall be deemed automatically rescinded and of no further force and
kind of donations. Donations mortis causa, being in the form of a will, need not be accepted by the donee during the effect; x x x"3 (Emphasis Ours)
donor's lifetime.[15] On May 9, 1995, Conchita Cabatingan died.
Upon learning of the existence of the foregoing donations, respondents filed with the Regional Trial Court of Mandaue,
Finally, as Justice J. B. L. Reyes said in Puig v. Peñaflorida,[16] in case of doubt, the conveyance should be deemed a Branch 55, an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, docketed as
donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of Civil Case No. MAN-2599, seeking the annulment of said four (4) deeds of donation executed on January 14, 1995.
the deed. Respondents allege, inter alia, that petitioners, through their sinister machinations and strategies and taking advantage of
Conchita Cabatingan's fragile condition, caused the execution of the deeds of donation, and, that the documents are void
Since the donation in this case was one made inter vivos, it was immediately operative and final.  The reason is that such for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that
kind of donation is deemed perfected from the moment the donor learned of the donee's acceptance of the donation.  The these are donations mortis causa.4 Respondents prayed that a receiver be appointed in order to preserve the disputed
acceptance makes the donee the absolute owner of the property donated.[17] properties, and, that they be declared as co-owners of the properties in equal shares, together with petitioner Nicolas
Given that the donation in this case was irrevocable or one given inter vivos, Leopoldo's subsequent assignment of his Cabatingan.5
rights and interests in the property to Asuncion should be regarded as void for, by then, he had no more rights to assign.  Petitioners in their Amended Answer, deny respondents' allegations contending that Conchita Cabatingan freely,
He could not give what he no longer had.  Nemo dat quod non habet.[18] knowingly and voluntarily caused the preparation of the instruments.6
The trial court cannot be faulted for passing upon, in a petition for probate of what was initially supposed to be a On respondents' motion, the court a quo rendered a partial judgment on the pleadings on December 2, 1997 in favor of
donation mortis causa, the validity of the document as a donation inter vivos and the nullity of one of the donor's respondents, with the following dispositive portion:
subsequent assignment of his rights and interests in the property.  The Court has held before that the rule on probate is "WHEREREFORE, and in consideration of all the foregoing, judgment is hereby rendered in favor of the
not inflexible and absolute.[19]  Moreover, in opposing the petition for probate and in putting the validity of the deed of plaintiffs and against the defendant and unwilling co-plaintiff with regards (sic) to the four Deeds of Donation
assignment squarely in issue, Asuncion or those who substituted her may not now claim that the trial court improperly Annexes "A", "A-1", "B" and Annex "C" which is the subject of this partial decision by:
allowed a collateral attack on such assignment. Declaring the four Deeds of Donation as null and void ab initio for being a donation Mortis Causa
and for failure to comply with formal and solemn requisite under Art. 806 of the New Civil Code;

3
 b) To declare the plaintiffs and defendants as well as unwilling co-plaintiff as the heirs of the Notably, the foregoing provision is similar to that contained in the donation executed by Cabatingan. We held in
deceased Conchita Cabatingan and therefore hereditary co-owners of the properties subject of this Meimban case that the donation is a mortis causa donation, and that the above quoted provision establishes the donor's
partial decision, as mandated under Art. 777 of the New Civil Code; intention to transfer the ownership and possession of the donated property to the donee only after the former's death.
SO ORDERED."7 Further:
The court a quo ruled that the donations are donations mortis causa and therefore the four (4) deeds in question executed "As the donation is in the nature of a mortis causa disposition, the formalities of a will should have been
on January 14, 1995 are null and void for failure to comply with the requisites of Article 806 of the Civil Code on complied with under Article 728 of the Civil Code, otherwise, the donation is void and would produce no
solemnities of wills and testaments.8 effect. As we have held in Alejandro v. Geraldez (78 SCRA 245,253), "If the donation is made in
Raising questions of law, petitioners elevated the court a quo's decision to this Court,9 alleging that: contemplation of the donor's death, meaning that the full or naked ownership of the donated properties will
"THE LOWER COURT PALPABLY DISREGARDED THE LONG-AND-WELL-ESTABLISHED pass to the donee because of the donor's death, then it is at that time that the donation takes effect, and it is a
RULINGS OF THIS HONORABLE SUPREME COURT ON THE CHARACTERIZATION OF donation mortis causa which should be embodied in a last will and testament. (Citing Bonsato v. Court of
DONATIONS AS INTER VIVOS OR MORTIS CAUSA AND, INSTEAD, PROCEEDED TO INTERPRET Appeals, 95 Phil. 481)."19
THE DONATIONS IN QUESTION IN A MANNER CONTRARY THERETO."10 We apply the above rulings to the present case. The herein subject deeds expressly provide that the donation shall be
Petitioners insist that the donations are inter vivos donations as these were made by the late Conchita Cabatingan "in rescinded in case petitioners predecease Conchita Cabatingan. As stated in Reyes v. Mosqueda,20 one of the decisive
consideration of the love and affection of the donor" for the donee, and there is nothing in the deeds which indicate that characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the
the donations were made in consideration of Cabatingan's death.11 In addition, petitioners contend that the stipulation on donee. This is exactly what Cabatingan provided for in her donations. If she really intended that the donation should take
rescission in case petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the donation effect during her lifetime and that the ownership of the properties donated be transferred to the donee or independently
as inter vivos. of, and not by reason of her death, she would have not expressed such proviso in the subject deeds.1âwphi1.nêt
Petitioners' arguments are bereft of merit. Considering that the disputed donations are donations mortis causa, the same partake of the nature of testamentary
In a donation mortis causa, "the right of disposition is not transferred to the donee while the donor is still alive." 12 In provisions21 and as such, said deeds must be executed in accordance with the requisites on solemnities of wills and
determining whether a donation is one of mortis causa, the following characteristics must be taken into account: testaments under Articles 805 and 806 of the Civil Code, to wit:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the "ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator
same thing, that the transferor should retain the ownership (full or naked) and control of the property while himself or by the testator's name written by some other person in his presence, and by his express direction,
alive; and attested and subscribed by three or more credible witnesses in the presence of the testator and of one
(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability another.
may be provided for indirectly by means of a reserved power in the donor to dispose of the properties The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall
conveyed; also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall
and be numbered correlatively in letters placed on the upper part of each page.
(3) That the transfer should be void if the transferor should survive the transferee.13 The attestation shall state the number of pages used upon which the will is written , and the fact that the
In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain testator signed the will and every page thereof, or caused some other person to write his name, under his
any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan's death.14 The phrase "to express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the
become effective upon the death of the DONOR" admits of no other interpretation but that Cabatingan did not intend to will and all the pages thereof in the presence of the testator and of one another.
transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)
donations as mortis causa in the following Acceptance and Attestation clauses, uniformly found in the subject deeds of ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The
donation, to wit: notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of
"That the DONEE does hereby accept the foregoing donation mortis causa under the terms and conditions set Court. (n)"
forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were not
generosity of the DONOR." executed in the manner provided for under the above-quoted provisions of law.
xxx Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void.
"SIGNED by the above-named DONOR and DONEE at the foot of this Deed of Donation mortis causa, which WHEREFORE, the petition is hereby DENIED for lack of merit.
consists of two (2) pages x x x."15
That the donations were made "in consideration of the love and affection of the donor" does not qualify the donations
as inter vivos because transfers mortis causa may also be made for the same reason.16 G.R. No. 106755               February 1, 2002
Well in point is National Treasurer of the Phils. v. Vda. de Meimban.17 In said case, the questioned donation contained APOLINARIA AUSTRIA-MAGAT, petitioner,
the provision: vs.
"That for and in consideration of the love and affection which the DONOR has for the DONEE, the said Donor HON. COURT OF APPEALS and FLORENTINO LUMUBOS, DOMINGO COMIA, TEODORA CARAMPOT,
by these presents does hereby give, transfer, and convey unto the DONEE, her heirs and assigns a portion of ERNESTO APOLO, SEGUNDA SUMPELO, MAMERTO SUMPELO and RICARDO SUMPELO, respondents.
ONE HUNDRED THOUSAND (100,000) SQUARE METERS, on the southeastern part Pro-indiviso of the DECISION
above described property. (The portion herein donated is within Lot 2-B of the proposed amendment Plan DE LEON, JR., J.:
Subdivision of Lots Nos. 1 and 2, Psu-109393), with all the buildings and improvements thereon, to become
effective upon the death of the DONOR. (italics supplied.)"18
4
Before us is a petition for review of the Decision 1 of the Court of Appeals, 2 dated June 30, 1989 reversing the
Decision,3 dated August 15, 1986 of the Regional Trial Court (RTC) of Cavite, Branch 17. The Decision of the RTC Tagatanggap-pala CONSOLACION AUSTRIA
dismissed Civil Case No. 4426 which is an action for annulment of title, reconveyance and damages.
The facts of the case are as follows: (Sgd.)FLORENTINO LUMUBOS
Basilisa Comerciante is a mother of five (5) children, namely, Rosario Austria, Consolacion Austria, herein petitioner Tagatanggap-pala
Apolinaria Austria-Magat, Leonardo, and one of herein respondents, Florentino Lumubos. Leonardo died in a Japanese (Acknowledgment signed by Notary Public C.T. Viniegra is omitted).4
concentration camp at Tarlac during World War II. Basilisa and her said children likewise executed another notarized document denominated as "Kasulatan" which is
In 1953, Basilisa bought a parcel of residential land together with the improvement thereon covered and described in attached to the deed of donation. The said document states that:
Transfer Certificate of Title No. RT-4036 (T-3268) and known as Lot 1, Block 1, Cavite Beach Subdivision, with an area KASULATAN
of 150 square meters, located in Bagong Pook, San Antonio, Cavite City. TALASTASIN NG MADLA:
On December 17, 1975, Basilisa executed a document designated as "Kasulatan sa Kaloobpala (Donation)". The said Na kaming mga nakalagda o nakadiit sa labak nito – sila Basilisa Comerciante at ang kanyang mga anak na sila:
document which was notarized by Atty. Carlos Viniegra, reads as follows: Rosario Austria, Consolacion Austria, Apolonio Austria, at Florentino Lumubos, pawang may mga sapat na gulang, na
KASULATANG SA KALOOBPALA lumagda o dumiit sa kasulatang kaloob pala, na sinangayunan namin sa harap ng Notario Publico, Carlos T. Viniegra, ay
(DONATION) nagpapahayag ng sumusunod:
TALASTASIN NG LAHAT AT SINUMAN: Na ang titulo numero TCT-T-2260 (RT-4036) ng Lungsod ng Kabite, bahay sa loteng tirahan ng Bagong Pook na
Na ako, si BASELISA COMERCIANTE, may sapat na gulang, Filipina, balo, at naninirahan sa blg. 809 L. Javier nababanggit sa nasabing kasulatan, ay mananatili sa poder o possession ng Ina, na si Basilisa Comerciante habang siya
Bagong Pook, San Antonio, Lungsod ng Kabite, Filipinas, sa pamamagitan ng kasulatang ito’y ay nabubuhay at
NAGSASALAYSAY Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay ang nasabing Basilisa
Na alang-alang sa mabuting paglilingkod at pagtingin na iniukol sa akin ng apat kong mga tunay na anak na sila: Comerciante.
ROSARIO AUSTRIA, Filipina, may sapat na gulang, balo, naninirahan sa 809 L. Javier, Bagong Pook, San Antonio, Sa katunayan ang nagsilagda kaming lahat sa labak nito sa harap ng abogado Carlos T. Viniegra at dalawang saksi.
Lungsod ng Kabite; Nobeleta, Kabite. Ika-17 ng Disyembre, 1975.5
CONSOLACION AUSTRIA, Filipina, may sapat na gulang, balo naninirahan sa 809 L. Javier, Bagong Pook, San On February 6, 1979, Basilisa executed a Deed of Absolute Sale of the subject house and lot in favor of herein petitioner
Antonio, Lungsod ng Kabite; Apolinaria Austria-Magat for Five Thousand Pesos (₱5,000.00). As the result of the registration of that sale, Transfer
APOLINARIA AUSTRIA, Filipina, may sapat na gulang, may asawa, naninirahan sa Pasong Kawayan, Hen. Trias, Certificate of Title (TCT for brevity) No. RT-4036 in the name of the donor was cancelled and in lieu thereof TCT No.
Kabite; T-10434 was issued by the Register of Deeds of Cavite City in favor of petitioner Apolinaria Austria-Magat on February
FLORENTINO LUMUBOS, Filipino, may sapat na gulang, asawa ni Encarnacion Magsino, at naninirahan din sa 809 L. 8, 1979.
Javier, Bagong Pook, San Antonio, Lungsod ng Kabite; ay On September 21, 1983, herein respondents Teodora Carampot, Domingo Comia, and Ernesto Apolo (representing their
Kusang loob na ibinibigay ko at ipinagkakaloob ng ganap at hindi na mababawi sa naulit ng apat na anak ko at sa deceased mother Consolacion Austria), Ricardo, Mamerto and Segunda, all surnamed Sumpelo (representing their
kanilang mga tagamagmana (sic), ang aking isang lupang residential o tirahan sampu ng aking bahay nahan ng nakatirik deceased mother Rosario Austria) and Florentino Lumubos filed before the Regional Trial Court of Cavite an action,
doon na nasa Bagong Pook din, San Antonio, Lungsod ng Kabite, at nakikilala bilang Lote no. 7, Block no.1, of docketed as Civil Case No. 4426 against the petitioner for annulment of TCT No. T-10434 and other relevant documents,
Subdivision Plan Psd-12247; known as Cavite Beach Subdivision, being a portion of Lot No. 1055, of the Cadastral and for reconveyance and damages.
survey of Cavite, GLRO Cadastral Rec. no. 9539; may sukat na 150 metros cuadrados, at nakatala sa pangalan ko sa On August 15,1986, the trial court dismissed Civil Case No. 4426 per its Decision, the dispositive portion of which
Titulo Torrens bilang TCT-T-3268 (RT-4036) ng Lungsod ng Kabite; reads:
Na ang Kaloob palang ito ay magkakabisa lamang simula sa araw na ako’y pumanaw sa mundo, at sa ilalim ng WHEREFORE, in view of the foregoing, this Court hereby renders judgment for defendant dismissing this case and
kondision na: ordering plaintiffs to pay the amount of ₱3,000.00 as attorney’s fees and the costs of suit.
Magbubuhat o babawasin sa halaga ng nasabing lupa at bahay ang anumang magugul o gastos sa aking libing at nicho at SO ORDERED.6
ang anumang matitira ay hahatiin ng APAT na parte, parepareho isang parte sa bawat anak kong nasasabi sa itaas nito According to the trial court, the donation is a donation mortis causa pursuant to Article 728 of the New Civil Code
upang maliwanang (sic) at walang makakalamang sinoman sa kanila; inasmuch as the same expressly provides that it would take effect upon the death of the donor; that the provision stating
At kaming apat na anak na nakalagda o nakadiit sa kasulatang ito ay TINATANGGAP NAMIN ang kaloob-palang ito ng that the donor reserved the right to revoke the donation is a feature of a donation mortis causa which must comply with
aming magulang na si Basilisa Comerciante, at tuloy pinasasalamatan namin siya ng taos sa (sic) puso dahil sa the formalities of a will; and that inasmuch as the donation did not follow the formalities pertaining to wills, the same is
kagandahan look (sic) niyang ito sa amin. void and produced no effect whatsoever. Hence, the sale by the donor of the said property was valid since she remained
SA KATUNAYAN, ay nilagdaan o diniitan namin ito sa Nobeleta, Kabite, ngayong ika-17 ng Disyembre taong 1975. to be the absolute owner thereof during the time of the said transaction.
On appeal, the decision of the trial court was reversed by the Court of Appeals in its subject decision, the dispositive
HER MARK HER MARK portion of which reads, to wit:
BASELISA COMERCIANTE ROSARIO AUSTRIA WHEREFORE, in view of the foregoing, the appealed decision is hereby SET ASIDE and a new one rendered:
Tagakaloobpala 1. declaring null and void the Deed of Sale of Registered Land (Annex B) and Transfer Certificate of Title No.
T-10434 of the Registry of Deeds of Cavite City (Annex E) and ordering the cancellation thereof; and
2. declaring appellants and appellee co-owners of the house and lot in question in accordance with the deed of
(Sgd.) APOLINARIA AUSTRIA HER MARK donation executed by Basilisa Comerciante on December 17, 1975.
No pronouncement as to costs.
5
SO ORDERED.7 It has been held that whether the donation is inter vivos or mortis causa depends on whether the donor intended to
The appellate court declared in its decision that: transfer ownership over the properties upon the execution of the deed. 10 In Bonsato v. Court of Appeals, 11 this Court
In the case at bar, the decisive proof that the deed is a donation inter vivos is in the provision that : enumerated the characteristics of a donation mortis causa, to wit:
Ibinibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na apat na anak ko at sa kanilang mga (1) It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the
tagapagmana, ang aking lupang residential o tirahan sampu ng aking bahay nakatirik doon xxx. (emphasis supplied) same thing, that the transferor should retain the ownership (full or naked) and control of the property while
This is a clear expression of the irrevocability of the conveyance. The irrevocability of the donation is a characteristic of alive;
a donation inter vivos. By the words "hindi mababawi", the donor expressly renounced the right to freely dispose of the (2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability
house and lot in question. The right to dispose of a property is a right essential to full ownership. Hence, ownership of may be provided for indirectly by means of a reserved power in the donor to dispose of the properties
the house and lot was already with the donees even during the donor’s lifetime. xxx conveyed;
x x x           x x x          x x x (3) That the transfer should be void if the transferor should survive the transferee.
In the attached document to the deed of donation, the donor and her children stipulated that: Significant to the resolution of this issue is the irrevocable character of the donation in the case at bar. In Cuevas v.
Gayon din ang nasabing titulo ay hindi mapapasangla o maipagbibili ang lupa habang may buhay ang nasabing Basilisa Cuevas,12 we ruled that when the deed of donation provides that the donor will not dispose or take away the property
Comerciante." donated (thus making the donation irrevocable), he in effect is making a donation inter vivos. He parts away with his
The stipulation is a reiteration of the irrevocability of the dispossession on the part of the donor. On the other hand, the naked title but maintains beneficial ownership while he lives. It remains to be a donation inter vivos despite an express
prohibition to encumber, alienate or sell the property during the lifetime of the donor is a recognition of the ownership provision that the donor continues to be in possession and enjoyment of the donated property while he is alive. In
over the house and lot in issue of the donees for only in the concept of an owner can one encumber or dispose a the Bonsato case, we held that:
property.8 (W)hat is most significant [in determining the type of donation] is the absence of stipulation that the donor could revoke
Hence this appeal grounded on the following assignment of errors: the donations; on the contrary, the deeds expressly declare them to be "irrevocable", a quality absolutely incompatible
I with the idea of conveyances mortis causa where revocability is of the essence of the act, to the extent that a testator can
THE RESPONDENT COURT OF APPEALS, WITH DUE RESPECT, IGNORED THE RULES OF not lawfully waive or restrict his right of revocation (Old Civil Code, Art.737; New Civil Code, Art. 828).13
INTERPRETATION OF CONTRACTS WHEN IT CONSIDERED THE DONATION IN QUESTION AS INTER Construing together the provisions of the deed of donation, we find and so hold that in the case at bar the donation
VIVOS. is inter vivos. The express irrevocability of the same ("hindi na mababawi") is the distinctive standard that identifies that
II document as a donation inter vivos. The other provisions therein which seemingly make the donation mortis causa do not
THE RESPONDENT COURT OF APPEALS, AGAIN WITH DUE RESPECT, ERRED IN NOT HOLDING THAT go against the irrevocable character of the subject donation. According to the petitioner, the provisions which state that
THE PRESENT ACTION HAS PRESCRIBED UNDER THE STATUTE OF LIMITATIONS.9 the same will only take effect upon the death of the donor and that there is a prohibition to alienate, encumber, dispose,
Anent the first assignment of error, the petitioner argues that the Court of Appeals erred in ruling that the donation was a or sell the same, are proofs that the donation is mortis causa. We disagree. The said provisions should be harmonized
donation inter vivos. She claims that in interpreting a document, the other relevant provisions therein must be read in with its express irrevocability. In Bonsato where the donation per the deed of donation would also take effect upon the
conjunction with the rest. While the document indeed stated that the donation was irrevocable, that must be interpreted in death of the donor with reservation for the donor to enjoy the fruits of the land, the Court held that the said statements
the light of the provisions providing that the donation cannot be encumbered, alienated or sold by anyone, that the only mean that "after the donor’s death, the donation will take effect so as to make the donees the absolute owners of the
property donated shall remain in the possession of the donor while she is alive, and that the donation shall take effect donated property, free from all liens and encumbrances; for it must be remembered that the donor reserved for himself a
only when she dies. Also, the petitioner claims that the donation is mortis causa for the reason that the contemporaneous share of the fruits of the land donated."14
and subsequent acts of the donor, Basilisa Comerciante, showed such intention. Petitioner cites the testimony of Atty. In Gestopa v. Court of Appeals,15 this Court held that the prohibition to alienate does not necessarily defeat the inter
Viniegra, who notarized the deed of donation, that it was the intent of the donor to maintain control over the property vivos character of the donation. It even highlights the fact that what remains with the donor is the right of usufruct and
while she was alive; that such intent was shown when she actually sold the lot to herein petitioner. not anymore the naked title of ownership over the property donated. In the case at bar, the provision in the deed of
We affirm the appellate court’s decision. donation that the donated property will remain in the possession of the donor just goes to show that the donor has given
The provisions in the subject deed of donation that are crucial for the determination of the class to which the donation up his naked title of ownership thereto and has maintained only the right to use (jus utendi) and possess (jus possidendi)
belongs are, as follows: the subject donated property.
x x x           x x x          x x x Thus, we arrive at no other conclusion in that the petitioner’s cited provisions are only necessary assurances that during
xxx(I)binibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na apat na anak ko at sa kanilang mga the donor’s lifetime, the latter would still enjoy the right of possession over the property; but, his naked title of
tagapagmana, ang aking lupang residential o tirahan sampu ng aking bahay nakatirik doon na nasa Bagong Pook din, San ownership has been passed on to the donees; and that upon the donor’s death, the donees would get all the rights of
Antonio, Lungsod ng Kabite ownership over the same including the right to use and possess the same.
x x x           x x x          x x x Furthermore, it also appeared that the provision in the deed of donation regarding the prohibition to alienate the subject
Na ang Kaloob palang ito ay magkakabisa lamang simula sa araw na ako’y pumanaw sa mundo, xxx. property is couched in general terms such that even the donor is deemed included in the said prohibition ("Gayon din ang
x x x           x x x          x x x nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay ang nasabing Basilisa Comerciante").
Na ang titulo numero TCT-T-2260 (RT-4036) ng Lungsod ng Kabite, bahay sa loteng tirahan ng Bagong Pook na Both the donor and the donees were prohibited from alienating and encumbering the property during the lifetime of the
nababanggit sa nasabing kasulatan, ay mananatili sa poder o possesion ng Ina, na si Basilisa Comerciante habang siya ay donor. If the donor intended to maintain full ownership over the said property until her death, she could have expressly
nabubuhay at stated therein a reservation of her right to dispose of the same. The prohibition on the donor to alienate the said property
Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay ang nasabing Basilisa during her lifetime is proof that naked ownership over the property has been transferred to the donees. It also supports
Comerciante xxx. the irrevocable nature of the donation considering that the donor has already divested herself of the right to dispose of the
donated property. On the other hand, the prohibition on the donees only meant that they may not mortgage or dispose the
6
donated property while the donor enjoys and possesses the property during her lifetime. However, it is clear that the However, the four-year prescriptive period is not applicable to the case at bar for the reason that there is no fraud in this
donees were already the owners of the subject property due to the irrevocable character of the donation. case. The findings of fact of the appellate court which are entitled to great respect, are devoid of any finding of fraud.
The petitioner argues that the subsequent and contemporaneous acts of the donor would show that her intention was to The records do not show that the donor, Basilisa, and the petitioner ever intended to defraud the respondents herein with
maintain control over her properties while she was still living. We disagree. Respondent Domingo Comia testified that respect to the sale and ownership of the said property. On the other hand, the sale was grounded upon their honest but
sometime in 1977 or prior to the sale of the subject house and lot, his grandmother, the donor in the case at bar, delivered erroneous interpretation of the deed of donation that it is mortis causa, not inter vivos; and that the donor still had the
the title of the said property to him; and that the act of the donor was a manifestation that she was acknowledging the rights to sell or dispose of the donated property and to revoke the donation.
ownership of the donees over the property donated. 16 Moreover, Atty. Viniegra testified that when the donor sold the lot There being no fraud in the trust relationship between the donor and the donees including the herein petitioner, the action
to the petitioner herein, she was not doing so in accordance with the agreement and intent of the parties in the deed of for reconveyance prescribes in ten (10) years. Considering that TCT No. T-10434 in the name of the petitioner and
donation; that she was disregarding the provision in the deed of donation prohibiting the alienation of the subject covering the subject property was issued only on February 8, 1979, the filing of the complaint in the case at bar in 1983
property; and that she knew that the prohibition covers her as well as the donees.17 was well within the ten-year prescriptive period.
Another indication in the deed of donation that the donation is inter vivos is the acceptance clause therein of the donees. The Court of Appeals, therefore, committed no reversible error in its appealed Decision.1âwphi1
We have ruled that an acceptance clause is a mark that the donation is inter vivos. Acceptance is a requirement for WHEREFORE, the appealed Decision dated June 30, 1989 of the Court of Appeals is hereby AFFIRMED. No
donations inter vivos. On the other hand, donations mortis causa, being in the form of a will, are not required to be pronouncement as to costs.
accepted by the donees during the donor’s lifetime.18
We now rule on whether the donor validly revoked the donation when one of her daughters and donees, Consolacion
Austria, violated the prohibition to encumber the property. When Consolacion Austria mortgaged the subject property to G.R. No. L-6600             July 30, 1954
a certain Baby Santos, the donor, Basilisa Comerciante, asked one of the respondents herein, Domingo Comia, to redeem HEIRS OF JUAN BONSATO and FELIPE BONSATO, petitioners, vs. COURT OF APPEALS and JOSEFA
the property, which the latter did. After the petitioner in turn redeemed the property from respondent Domingo, the UTEA, ET AL., respondents.
donor, Basilisa, sold the property to the petitioner who is one of the donees. REYES, J.B.L., J.:
The act of selling the subject property to the petitioner herein cannot be considered as a valid act of revocation of the This is a petition for review of a decision of the Court of Appeals holding two deeds of donation executed on the first
deed of donation for the reason that a formal case to revoke the donation must be filed pursuant to Article 764 of the day of December, 1939 by the late Domingo Bonsato in favor of his brother Juan Bonsato and of his nephew Felipe
Civil Code19 which speaks of an action that has a prescriptive period of four (4) years from non-compliance with the Bonsato, to be void for being donations mortis causa accomplished without the formalities required by law for
condition stated in the deed of donation. The rule that there can be automatic revocation without benefit of a court action testamentary dispositions.
does not apply to the case at bar for the reason that the subject deed of donation is devoid of any provision providing for The case was initiated in the Court of First Instance of Pangasinan (Case No. 8892) on June 27, 1945, by respondents
automatic revocation in event of non-compliance with the any of the conditions set forth therein. Thus, a court action is Josefa Utea and other heirs of Domingo Bonsato and his wife Andrea Nacario, both deceased. Their complaint (for
necessary to be filed within four (4) years from the non-compliance of the condition violated. As regards the ground of annulment and damages) charged that on the first day of December, 1949, Domingo Bonsato, then already a widower,
estoppel, the donor, Basilisa, cannot invoke the violation of the provision on the prohibition to encumber the subject had been induced and deceived into signing two notarial deeds of donations (Exhibits 1 and 2) in favor of his brother
property as a basis to revoke the donation thereof inasmuch as she acknowledged the validity of the mortgage executed Juan Bonsato and of his nephew Felipe Bonsato, respectively, transferring to them several parcels of land covered by
by the donee, Consolacion Austria, when the said donor asked respondent Domingo Comia to redeem the same. Tax Declaration Nos. 5652, 12049, and 12052, situated in the municipalities of Mabini and Burgos, Province of
Thereafter, the donor, Basilisa likewise asked respondent Florentino Lumubos and the petitioner herein to redeem the Pangasinan, both donations having been duly accepted in the same act and documents. Plaintiffs likewise charged that
same.20 Those acts implied that the donees have the right of control and naked title of ownership over the property the donations were mortis causa and void for lack of the requisite formalities. The defendants, Juan Bonsato and Felipe
considering that the donor, Basilisa condoned and acknowledged the validity of the mortgage executed by one of the Bonsato, answered averring that the donations made in their favor were voluntarily executed in consideration of past
donees, Consolacion Austria. services rendered by them to the late Domingo Bonsato; that the same were executed freely without the use of force and
Anent the second issue, the petitioner asserts that the action, against the petitioner, for annulment of TCT No. T-10434 violence, misrepresentation or intimidation; and prayed for the dismissal of the case and for damages in the sum of
and other relevant documents, for reconveyance and damages, filed by the respondents on September 21, 1983 on the P2,000.
ground of fraud and/or implied trust has already prescribed. The sale happened on February 6, 1979 and its registration After trial, the Court of First Instance rendered its decision on November 13, 1949, finding that the deeds of donation
was made on February 8, 1979 when TCT No. RT-4036 in the name of the donor was cancelled and in lieu thereof TCT were executed by the donor while the latter was of sound mind, without pressure or intimidation; that the deeds were of
No. T-10434 in the name of the petitioner was issued.1âwphi1 Thus, more than four (4) years have passed since the sale donation inter vivos without any condition making their validity or efficacy dependent upon the death of the donor; but
of the subject real estate property was registered and the said new title thereto was issued to the petitioner. The petitioner as the properties donated were presumptively conjugal, having been acquired during the coverture of Domingo Bonsato
contends that an action for reconveyance of property on the ground of alleged fraud must be filed within four (4) years and his wife Andrea Nacario, the donations were only valid as to an undivided one-half share in the three parcels of land
from the discovery of fraud which is from the date of registration of the deed of sale on February 8, 1979; and that the described therein.
same prescriptive period also applies to a suit predicated on a trust relationship that is rooted on fraud of breach of trust. Thereupon the plaintiffs duly appealed to the Court of Appeals, assigning as primary error the holding of the court below
When one’s property is registered in another’s name without the former’s consent, an implied trust is created by law in that the donations are inter vivos; appellants contending that they were mortis causa donations, and invalid because they
favor of the true owner. Article 1144 of the New Civil Code provides: had not been executed with the formalities required for testamentary disposition.
Art. 1144. The following actions must be brought within ten years from the time the right of action accrues: A division of five of the Court of Appeals took the case under consideration, and on January 12, 1953, the majority
(1) Upon a written contract; rendered judgment holding the aforesaid donations to be null and void, because they were donations mortis causa and
(2) Upon an obligation created by law; were executed without the testamentary formalities prescribed by law, and ordered the defendants-appellees Bonsato to
(3) Upon a judgment. (n) surrender the possession of the properties in litigation to the plaintiffs-appellants. Two Justices dissented, claiming that
Thus, an action for reconveyance of the title to the rightful owner prescribes in ten (10) years from the issuance of the the said donations should be considered as donations inter vivos and voted for the affirmance of the decision of the Court
title.21 It is only when fraud has been committed that the action will be barred after four (4) years.22 of First Instance. The donees then sought a review by this Court.
7
The sole issue submitted to this Court, therefore, is the juridical nature of the donations in question. Both deeds (Exhs. 1 Las donaciones mortis causa se consevan en el Codigo como se conserva un cuerpo fosil en las vitrinas de un
and 2) are couched in identical terms, with the exception of the names of the donees and the number and description of Museo. La asimilacion entre las donaciones por causa de muerte y las transmissiones por testamento es
the properties donated. The principal provisions are the following. perfecta.
ESCRITURA DE DONATION Manresa, in his Commentaries (5th ed.), Vol. V. p. 83, expresses the same opinion:
Yo, Domingo Bonsato, viudo de Andrea Nacario, mayor de edad, vencino y residente del municipio de Agno, "La disposicion del articulo 620 significa, por lo tanto: 1..o, que han desaparecido las llamas antes
Pangasinan, I.F., por la presente declaro lo siguiente: donaciones mortis causa por lo que el Codigo no se ocupa de ellas en absoluto; 2.o, que toda disposicion de
Que mi osbrino Felipe Bonsato, casado, tambien mayor de edad, vecino de Agno, Pangasinan, I.F., en bienes para despues de la muerte sigue las reglas establecidas para la sucesion testamentaria.
consideracion de su largo servicio a Domingo Bonsato, por la presente hagor y otorgo una donacion perfecta e And Castan, in his Derecho Civil, Vol. IV (7th Ed., 1953), p. 176, reiterates:
irrevocable consumada a favor del citado Felipe Bonsato de dos parcelas de terreno palayero como se describe (b) Subsisten hoy en nuestro derecho las donaciones mortis causa? De lo que acabamos de decir se desprende
mas abajo. que las donaciones mortis causa han perdido en el Codigo Civil su caracter distintivo y su naturaleza y hay que
(Description omitted) considerarlos hoy como una institucion suprimida, refundida en el legado ... . Las tesis de la desaparcion de las
Que durante su menor de edad de mi citado sobrino Felipe Bonsato hasta en estos dias, siempre me ha donaciones mortis causa en nuestro Codigo Civil, acusada ya precedentemente por el pryecto de 1851 puede
apreciado y estimado como uno de mis hijos y siempre ha cumplido todas mis ordenes, y por esta razon bajo su decirse que constituye una communis opinion entre nuestros expositores, incluso los mas recientes.
pobriza sea movido mi sentimiento para dar una recompensa de sus trabajos y aprecios a mi favor. We have insisted on this phase of the legal theory in order to emphasize that the term "donations mortis causa" as
Que en este de 1939 el donante Domingo Bonsato ha entregado a Felipe Bonsato dichos terrenos donados y commonly employed is merely a convenient name to designate those dispositions of property that are void when made in
arriba citados pero de los productos mientras vive el donante tomara la parte que corresponde como dueño y la the form of donations.
parte como inquilino tomara Felipe Bonsato. Did the late Domingo Bonsato make donations inter vivos or dispositions post mortem in favor of the petitioners herein?
Que en vista de la vejez del donante, el donatorio Felipe Bonsato tomara posesion inmediatamente de dichos If the latter, then the documents should reveal any or all of the following characteristics:
terrenos a su favor. (1) Convey no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing,
Que despues de la muerte del donante entrara en vigor dicha donancion y el donatario Felipe Bonsato tendra that the transferor should retain the ownership (full or naked) and control of the property while alive (Vidal vs. Posadas,
todos los derechos de dichos terrenos en concepto de dueño absoluto de la propiedad libre de toda 58 Phil., 108; Guzman vs. Ibea, 67 Phil., 633);
responsibilidad y gravamen y pueda ejercitar su derecho que crea conveniente. (2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be
En Testimonio de todo lo Cual, signo la presente en Agno, Pangasinan, I.F., hoy dia 1.0 de Diciembre, 1939. provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed (Bautista vs.
Domingo (His thumbmark) Bonsato Sabiniano, G. R.
L-4326, November 18, 1952);
Yo, Felipe Bonsato, mayor de edad, casado, Vecino de Mabini, Pangasinan, I.F., declaro por la presente que (3) That the transfer should be void if the transferor should survive the transferee.
acepto la donacion anterior otorgado por Domingo Bonsato a mi favor. None of these characteristics is discernible in the deeds of donation, Exhibits 1 and 2, executed by the late Domingo
(Sgd.) Felipe Bonsato Bonsato. The donor only reserved for himself, during his lifetime, the owner's share of the fruits or produce ("de los
productos mientras viva el donante tomara la parte que corresponde como dueño"), a reservation that would be
SIGNADO Y FIRMADO EN PRESENCIA DE: unnecessary if the ownership of the donated property remained with the donor. Most significant is the absence of
(Sgd.) Illegible (Sgd.) Illegible stipulation that the donor could revoke the donations; on the contrary, the deeds expressly declare them to be
The majority of the special divisions of five of the Court of Appeals that took cognizance of this case relied primarily on "irrevocable", a quality absolutely incompatible with the idea of conveyances mortis causa where revocability is of the
the last paragraph, stressing the passage: essence of the act, to the extent that a testator can not lawfully waive or restrict his right of revocation (Old Civil Code,
Que despues de la muerte del donante entrara en vigor dicha donacion . . . Art. 737; New Civil Code, Art. 828).
while the minority opinion lay emphasis on the second paragraph, wherein the donor states that he makes "perfect, It is true that the last paragraph in each donation contains the phrase "that after the death of the donor the aforesaid
irrevocable, and consummated donation" of the properties to the respective donees, petitioners herein. donation shall become effective" (que despues de la muerte del donante entrara en vigor dicha donacion"). However, said
Strictly speaking, the issue is whether the documents in question embody valid donations, or else legacies void for failure expression must be construed together with the rest of the paragraph, and thus taken, its meaning clearly appears to be
to observe the formalities of wills (testaments). Despite the widespread use of the term "donations mortis causa," it is that after the donor's death, the donation will take effect so as to make the donees the absolute owners of the donated
well-established at present that the Civil Code of 1889, in its Art. 620, broke away from the Roman Law tradition, and property, free from all liens and encumbrances; for it must be remembered that the donor reserved for himself a share of
followed the French doctrine that no one may both donate and retain ("donner at retenir ne vaut"), by merging the the fruits of the land donated. Such reservation constituted a charge or encumbrance that would disappear upon the
erstwhile donations mortis causa with the testamentary dispositions, thus suppressing said donations as an independent donor's death, when full title would become vested in the donees.
legal concept. Que despues de la muerte del donante entrara en vigor dicha donacion y el donatario Felipe Bonsato tendra
ART. 620. Donations which are to become effective upon the death of the donor partake of the nature of todos derechos de dichos terrenos en concepto de dueño absoluto de la propiedad libre de toda responsibilidad
disposals of property by will and shall be governed by the rules established for testamentary successions. y gravamen y puede ejercitar su derecho que crea conveniente.
Commenting on this article, Mucius Scaevola (Codigo Civl, Vol. XI, 2 parte, pp. 573, 575 says: Any other interpretation of this paragraph would cause it to conflict with the irrevocability of the donation and its
No ha mucho formulabamos esta pregunta: Subsisten las donaciones mortis causa como institucion consummated character, as expressed in the first part of the deeds of donation, a conflict that should be avoided (Civ.
independiente, con propia autonomia y propio compo jurisdiccional? La respuesta debe ser negativa. Code of 1889, Art. 1285; New Civil Code, Art. 1374; Rule 123, sec. 59, Rules of Court).
xxx     xxx     xxx Que mi sobrino FILIPINO BONSATO, casado, tambien mayor de edad, vecino de Agno, Pangasinan, I. F., en
consideracion de su largo servicio a Domingo Bonsato, por la presente hago y otorgo una donacion perfecta e irrevocable
consumada a favor del citado Felipe Bonsato de dos parcelas de terreno palayero como se describe mas abajo.
8
In the cases held by this Court to be transfers mortis causa and declared invalid for not having been executed with the On February 12, 1976, Ursula Pascual filed a motion to exclude some properties from the inventory of Pascual's estate
formalities of testaments, the circumstances clearly indicated the transferor's intention to defer the passing of title until and to deliver the titles thereto to her. Ursula alleged that Dr. Pascual during his lifetime or on November 2, 1966
after his death. Thus, in Cariño vs. Abaya, 70 Phil., 182, not only were the properties not to be given until thirty days executed a "Donation Mortis Causa" in her favor covering properties which are included in the estate of Dr. Pascual
after the death of the last of the donors, but the deed also referred to the donees as "those who had been mentioned (subject of Special Proceedings No. 73-30-M) and therefore should be excluded from the inventory.
to inherit from us", the verb "to inherit" clearly implying the acquisition of property only from and after the death of the On August 1, 1976; the trial court issued an order excluding from the inventory of the estate the properties donated to
alleged donors. In Bautista vs. Sabiniano, 49 Off. Gaz., 549; 92 Phil., 244, the alleged donor expressly reserved the right Ursula, to wit:
to dispose of the properties conveyed at any time before his death, and limited the donation "to whatever property or WHEREFORE, in view of all the foregoing discussion, let the properties listed in paragraph 2 of the
properties left undisposed by me during my lifetime", thus clearly retaining their ownership until his death. While motion of February 12, 1976 filed by Ursula D. Pascual thru counsel be, as it is hereby ordered,
in David vs. Sison, 42 Off. Gaz. (Dec, 1946) 3155, the donor not only reserved for herself all the fruits of the property excluded from the inventory of the estate of the deceased Dr. Emilio D. Pascual, without prejudice to
allegedly conveyed, but what is even more important, specially provided that "without the knowledge and consent of the its final determination in a separate action. Special Administrator Reynaldo San Juan is hereby
donor, the donated properties could not be disposed of in any way", thereby denying to the transferees the most essential ordered to return to Court the custody of the corresponding certificates of titles of these properties,
attribute of ownership, the power to dispose of the properties. No similar restrictions are found in the deeds of donation until the issue of ownership is finally determined in a separate action. (G.R. No. 45262, pp. 23-24)
involved in this appeal. The Order is now the subject of G.R. Nos. 45262 and 45394. On January 5, 1977, we issued a temporary restraining
That the conveyance was due to the affection of the donor for the donees and the services rendered by the latter, is of no order enjoining the trial court from enforcing the August 1, 1976 Order.
particular significance in determining whether the deeds Exhibits 1 and 2 constitute transfers inter vivos or not, because Among the properties included in the "donation mortis causa" in favor of Ursula was Lot 24, Block No. 15 of the
a legacy may have identical motivation. Nevertheless, the existence of such consideration corroborates the express subdivision plan Psd-3231, located at 1109-1111 R. Papa St., Tondo, Manila as evidenced by Transfer Certificate of
irrevocability of the transfers and the absence of any reservation by the donor of title to, or control over, the properties Title No. 17854. The records show that on May 15, 1969, Emilio Pascual executed a deed of donation of real property
donated, and reinforces the conclusion that the act was inter vivos. Hence, it was error for the Court of Appeals to declare inter vivos over the abovementioned lot in Manila in favor of Ofelia D. Parungao, petitioner in G.R. Nos. 73241-42 a
that Exhibits 1 and 2 were invalid because the formalities of testaments were not observed. Being donations inter vivos, minor with her mother, Rosario Duncil, accepting the gift and donation for and in her behalf. When Parungao reached
the solemnities required for them were those prescribed by Article 633 of the Civil Code of 1889 (reproduced in Art. 749 the age of majority or on December 20, 1976, she tried to have the donation registered. However, she found out that the
of the new Code, and it is undisputed that these were duly complied with. As the properties involved were conjugal, the certificate of title was missing from where it was supposed to be kept, prompting her to file a petition for reconstitution
Court of First Instance correctly decided that the donations could not affect the half interest inherited by the respondents of title with the Court of First Instance of Manila. The petition was granted in October 1977. Parungao registered the
Josefa Utea, et al. from the predeceased wife of the donor. deed of donation with the Register of Deeds of Manila who cancelled Transfer Certificate of Title No. 17854 and issued
The decision of the Court of Appeals is reversed, and that of the Court of First Instance is revived and given effect. Costs in lieu thereof Transfer Certificate of Title No. 129092 in the name of Ofelia Parungao. She then filed a motion for
against respondents. 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.
G.R. No. L-45262 July 23, 1990 On May 2, 1978, Benjamin Reyes, private respondent in G.R. Nos. 73241-42 filed a complaint for declaration of nullity
RUPERTO REYES and REYNALDO C. SAN JUAN, in his capacity as Special Administrator,  petitioners, of Transfer Certificate of Title No. 129092, Register of Deeds of Manila and/or reconveyance of deed of title against
vs. HON. LORENZO R. MOSQUEDA, Judge of CFI, Pampanga (Branch VII), and URSULA D. Ofelia Parungao and Rosario Duncil, with the then Court of First Instance of Manila. The case was docketed as Civil
PASCUAL, respondents. Case No. 115164.
In their answer with compulsory counterclaim Parungao and Duncil, denied Reyes' assertion of ownership over the
G.R. No. L-45394 July 23, 1990 Tondo property. On November 6, 1978, Ofelia Parungao filed a complaint for recovery of possession over the Tondo
 PEDRO DALUSONG, petitioner, vs HON. LORENZO R. MOSQUEDA, JUDGE, BRANCH VII, COURT OF property against Benjamin Reyes and his nephew Oscar Reyes with the Court of First Instance of Manila. The case was
FIRST INSTANCE OF PAMPANGA, and URSULA D. PASCUAL, respondents. 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.
G.R. Nos. 73241-42 July 23, 1990 Emilio Pascual, and later by her until April 8, 1978 when she formally demanded that the defendants vacate the
OFELIA D. PARUNGAO and ROSARIO DUNCIL, petitioners, vs. THE HON. INTERMEDIATE APPELLATE premises. Parungao prayed that the defendants be evicted from the premises.
COURT, (Third Civil Cases Division), BENJAMIN P. REYES and OSCAR REYES, respondents. 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:
GUTIERREZ, JR., J.: WHEREFORE, judgment is hereby rendered: In Civil Case No. 115164 —
The instant petitions have been consolidated as they arose from the same facts and involve similar issues. Dr. Emilio 1) Declaring TCT No. 129092 in the name of Ofelia Parungao null and void; and ordering the Register of Deeds of
Pascual died intestate and without issue on November 18,1972. He was survived by his sister, Ursula Pascual and the Manila to cancel said title and to restore, in lieu thereof, TCT No. 17854 in the name of Emilio D. Pascual;
children of his late sisters as follows: (1) Maria Pascual Reyes- Ruperto Reyes and Jose Reyes; (2) Ines Pascual Reyes- 2) Ordering Ofelia D. Parungao to pay plaintiff Benjamin P. Reyes the sum of Two Thousand (P2,000.00) Pesos, as and
Jose P. Reyes, Benito Reyes, and Manna Reyes Manalastas; (3) Josefa Pascual Reyes-Augusto Reyes and Benjamin for attorney's fees; and to pay the costs of suit including all fees which the Register of Deeds may prescribe for the full
Reyes; and (4) Escolastica Pascual Dalusong (half- blood Pedro Dalusong. implementation of this decision. For lack of merit, the counterclaim is dismissed.
On December 3, 1973, the heirs of Dr. Pascual filed Special Proceedings No. 73-30-M in the then Court of First Instance In Civil Case No. 119359 —
of Pampanga for the administration of his estate. Atty. Marcela Macapagal, Clerk of Court of Branch VII was appointed 1) Dismissing the complaint for want of merit; and
special administratrix. Macapagal was, however, replaced by Reynaldo San Juan. 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.'
9
Parungao appealed the decision to the then Intermediate Appellate Court. The decision was, however, affirmed, with That the said DONOR, Dr. Emilio D. Pascual, for and in consideration of the love and affection which he has and bears
costs against the appellant. unto the said DONEE, as also for the personal services rendered by the said DONEE to the said DONOR, does hereby
The Intermediate Appellate Court decision is now the subject matter in G.R. Nos. 73241-42. by these presents voluntarily GIVE, GRANT, and DONATE MORTIS CAUSA unto the said DONEE URSULA D.
On January 29, 1986, we issued a minute resolution denying the above petition for lack of merit. The resolution became PASCUAL, her heirs and assigns, all of my rights, title and interest, in and to the following parcels of land with all the
final and executory on March 10, 1986 and on this same day the entry of judgment was effected. The entry of judgment improvements thereon, situated in the Municipality of Apalit, Pampanga, and more particularly described and Identified
was however set aside in the resolution dated January 19, 1987 on the ground that the January 29, 1986 resolution was as follows:
not received by the petitioners' counsel of record. The petitioner was granted leave to file a motion for reconsideration of xxx xxx xxx
the January 29, 1986 resolution. (Enumerated herein are 41 parcels of land)
The motion for reconsideration is now before us for resolution petition. Also included in this DONATION MORTIS CAUSA are all personal properties of the DONOR in the form of cash
The issues raised in these petitions are two-fold: (1) In G.R. No. L-45394, petitioner Pedro Dalusong questions the money or bank deposits and insurance in his favor, and his real properties situated in other towns of Pampanga, such as
jurisdiction of the probate court to exclude the properties donated to Ursula Pascual in its Order dated August 1, 1976, San Simon, and in the province of Rizal, San Francisco del Monte and in the City of Manila.
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 That the said donor has reserved for himself sufficient property to maintain him for life; and that the said DONEE does
administrator of the estate of Emilio Pascual (petitioner in G.R. No. hereby ACCEPT and RECEIVE this DONATION MORTIS CAUSA and further does express his appreciation and
L- 45262), Ofelia Parungao and Rosario Duncil (petitioners in G.R. Nos. 7324142) question the appellate court's finding gratefulness for the generosity of said DONOR; (Rollo of G.R. No. L-45262, pp. 12-16)
that the "Donation Mortis Causa" executed by Emilio Pascual in favor of his sister Ursula Pascual was actually a xxx xxx xxx
Donation Inter Vivos. Considering the provisions of the DONATION MORTIS CAUSA the appellate court ruled that the deed of donation was
We first discuss the issue on jurisdiction. The questioned August 1, 1976 order of the then Court of First Instance of actually a donation inter vivos although denominated as DONATION MORTIS CAUSA.
Pampanga in S.P. Proc. No. 73-30-M categorically stated that the exclusion from the inventory of the estate of the It is, now a settled rule that the title given to a deed of donation is not the determinative factor which makes the donation
deceased Dr. Emilio D. Pascual was "without prejudice to its final determination in a separate action." The provisional "inter vivos" or "mortis causa" As early as the case of Laureta v. Manta, et al., (44 Phil. 668 [1928]) this Court ruled that
character of the exclusion of the contested properties in the inventory as stressed in the order is within the jurisdiction of the dispositions in a deed of donation-whether "inter vivos" or "mortis causa" do not depend on the title or term used in
the probate court. This was stressed in the case of Cuizon v. Ramolete (129 SCRA 495 [1984]) which we cited in the case the deed of donation but on the provisions stated in such deed. This Court explained in Concepcion v. Concepcion (91
of Morales v. Court of First Instance of Cavite, Branch V (146 SCRA 373 [1986]): Phil. 823 [1952]) —
It is well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or ...But, it is a rule consistently followed by the courts that it is the body of the document of donation and the statements
determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. contained therein, and not the title that should be considered in ascertaining the intention of the donor. Here, the donation
All that the said court could do as regards said properties is to determine whether they should or should not be included is entitled and called donacion onerosa mortis causa. From the body, however, we find that the donation was of a nature
in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good; but if remunerative rather than onerous. It was for past services rendered, services which may not be considered as a debt to be
there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final paid by the donee but services rendered to her freely and in goodwill. The donation instead of being onerous or for a
determination of the conflicting claims of title because the probate court cannot do so (Mallari v. Mallari, 92 Phil. 694; valuable consideration, as in payment of a legal obligation, was more of remuneratory or compensatory nature, besides
Baquial v. Amihan, 92 Phil. 501).i•t•c-aüsl being partly motivated by affection.
Similarly, in Valero Vda. de Rodriguez v. Court of Appeals, (91 SCRA 540) we held that for the purpose of determining We should not give too much importance or significance to or be guided by the use of the phrase 'mortis causa in a
whether a certain property should or should not be included in the inventory, the probate court may pass upon the title 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.
thereto but such determination is not conclusive and is subject to the final decision in a separate action regarding (67 Phil. 633), this Court through Mr. Chief Justice Avancena said that if a donation by its terms is inter vivos, this
ownership which may be instituted by the parties (3 Moran's Comments on the Rules of Court, 1970 Edition, pages character is not altered by the fact that the donor styles it mortis causa.
448449 and 473; Lachenal v. Salas, In the case of Laureta v. Mata, et al. (44 Phil. 668), the court held that the donation involved was inter vivos. There, the
L-42257, June 14, 1976, 71 SCRA 262, 266). donor Severa Magno y Laureta gave the properties involved as —
On the second issue, it may be noted that the Court of Appeals did not pass upon the authenticity of the 1969 donation to ... 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
Parungao because of its finding that the 1966 donation to Pascual was inter vivos. The petitioners do not press the stands high in my estimation, I hereby donate 'mortis causa to said youth all the properties described as follows:
authenticity of the 1969 donation as their challenge centers on whether or not the 1966 donation was inter vivos. xxx xxx xxx
However, the trial court has a lengthy discussion reflecting adversely on the authenticity of the 1969 donation to I also declare that it is the condition of this donation that the donee cannot take possession of the properties donated
Parungao. 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
The petitioners assert that the 1966 donation was null and void since it was not executed with the formalities of a will. held annually as a suffrage in behalf of my sold, and also to defray the expenses of my burial and funerals.'
Therefore, the petitioners in G.R. No. L-45262 insist that the donated properties should revert to the estate of Emilio It will be observed that the present case and that of Laureta above cited are similar in that in both cases the donation was
Pascual while the petitioners in G.R. Nos. 73241-42 insist that the donation of real property inter vivos in favor of Ofelia being made as a reward for services rendered and being rendered, and as a token of affection for the donee; the phrase
Parungao be given effect. 'mortis causa was used; the donee to take possession of the property donated only after the death of the donor; the donee
The subject deed of donation titled "DONATION MORTIS CAUSA" duly notarized by a certain Cornelio M. Sigua was under obligation to defray the expenses incident to the celebration of the anniversary of the donor's death, including
states: church fees. The donation in both cases were duly accepted. In said case of Laureta this Court held that the donation was
That Dr. Emilio D. Pascual, Filipino, single, of age and resident of Apalit, Pampanga, hereinafter called the DONOR and in praesenti and not a gift in futuro.
Ursula D. Pascual, Filipino, single, also of age, resident of and with postal address at Apalit, Pampanga, hereinafter In the later case of Bonsato et al. v. Court of appeals, et al. (95 Phil. 481 [1954]) this Court, distinguished the
called the DONEE, have agreed, as they do hereby agree, to the following, to wit: characteristics of a donation inter vivos and "mortis causa" in this wise:

10
Did the late Domingo Bonsato, make donations inter vivos or dispositions post mortem in favor of the petitioners herein? of us with the BANK in our joint savings current account shall be the property of all or both of us and shall be payable to
If the latter, then the documents should reveal any or all of the following characteristics: and collectible or withdrawable by either or any of us during our lifetime, and after the death of either or any of us shall
(1) Convey no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, belong to and be the sole property of the survivor or survivors, and shall be payable to and collectible or withdrawable by
that the transferor should retain the ownership (fun or naked) and control of the property while alive (Vidal v. Posadas, such survivor or survivors.
58 Phil., 108; Guzman v. Ibea 67 Phil., 633); We further agree with each other and the BANK that the receipt or check of either, any or all of us during our lifetime, or
(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be the receipt or check of the survivor or survivors, for any payment or withdrawal made for our above-mentioned account
provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed (Bautista v. shall be valid and sufficient release and discharge of the BANK for such payment or withdrawal. 5
Sabiniano, G.R. No. L- 4326, November 18, 1952); The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of the estate of Dolores L.
(3) That the transfer should be void if the transferor should survive the transferee. Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug in the total sum of
These principles were repeated in the case of Castro v. Court of Appeals (27 SCRA 1076 [1969]), to wit: P667,731.66 ... ." 7
Whether a donation is inter vivos or mortis causa depends upon the nature of the disposition made. 'Did the donor intend On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private respondent, held that the
to transfer the ownership of the property donated upon the execution of the donation? If this is so, as reflected from the above-quoted survivorship agreement constitutes a conveyance mortis causa which "did not comply with the formalities
provisions contained in the donation, then it is inter vivos; otherwise, it is merely mortis causa, or made to take effect of a valid will as prescribed by Article 805 of the Civil Code," 8 and secondly, assuming that it is a mere donation inter
after death.' (Howard v. Padilla and Court of Appeals, G.R. No. L-7064 and L-7098, April 22, 1955. vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code. 9
Applying the above principles to the instant petitions, there is no doubt that the so-called DONATION MORTIS The dispositive portion of the decision of the Court of Appeals states:
CAUSA is really a donation inter vivos. The donation was executed by Dr. Pascual in favor of his sister Ursula Pascual WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition) is hereby set aside insofar
out of love and affection as well as a recognition of the personal services rendered by the donee to the donor. The as it granted private respondent's motion to sell certain properties of the estate of Dolores L. Vitug for reimbursement of
transfer of ownership over the properties donated to the donee was immediate and independent of the death of the donor. his alleged advances to the estate, but the same order is sustained in all other respects. In addition, respondent Judge is
The provision as regards the reservation of properties for the donor's subsistence in relation to the other provisions of the directed to include provisionally the deposits in Savings Account No. 35342-038 with the Bank of America, Makati, in
deed of donation confirms the intention of the donor to give naked ownership of the properties to the donee immediately the inventory of actual properties possessed by the spouses at the time of the decedent's death. With costs against private
after the execution of the deed of donation. respondent. 10
With these findings we find no need to discuss the other arguments raised by the petitioners. In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of our decisions in Rivera
WHEREFORE, this Court hereby renders judgment as follows: v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we sustained the validity of "survivorship
1) In G.R. Nos. 45262 and 45394 the petitions are DENIED. The Temporary Restraining Order issued on January 5, agreements" and considering them as aleatory contracts. 13
1977 is hereby LIFTED; and The petition is meritorious.
2) In G.R. Nos. 73241-42, the motion for reconsideration is DENIED. This DENIAL is FINAL. The conveyance in question is not, first of all, one of mortis causa, which should be embodied in a will. A will has been
defined as "a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights
and declares or complies with duties to take effect after his death." 14 In other words, the bequest or device must pertain
G.R. No. 82027 March 29, 1990 to the testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature of conjugal funds
ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO- In the case relied on, Rivera v. People's Bank and Trust Co.,  16 we rejected claims that a survivorship agreement purports
CORONA, respondents. to deliver one party's separate properties in favor of the other, but simply, their joint holdings:
SARMIENTO, J.: xxx xxx xxx
This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two wills of the late Dolores ... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive owner of the funds-
Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980, naming private respondent Rowena Faustino- deposited in the bank, which assumption was in turn based on the facts (1) that the account was originally opened in the
Corona executrix. In our said decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. name of Stephenson alone and (2) that Ana Rivera "served only as housemaid of the deceased." But it not infrequently
Vitug's estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate. happens that a person deposits money in the bank in the name of another; and in the instant case it also appears that Ana
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares Rivera served her master for about nineteen years without actually receiving her salary from him. The fact that
of stock and real properties belonging to the estate to cover allegedly his advances to the estate in the sum of subsequently Stephenson transferred the account to the name of himself and/or Ana Rivera and executed with the latter
P667,731.66, plus interests, which he claimed were personal funds. As found by the Court of Appeals, 2 the alleged the survivorship agreement in question although there was no relation of kinship between them but only that of master
advances consisted of P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and and servant, nullifies the assumption that Stephenson was the exclusive owner of the bank account. In the absence, then,
P90,749.99 as "increment thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and P90,749.99 from of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which recites in effect that the
savings account No. 35342-038 of the Bank of America, Makati, Metro Manila. funds in question belonged to Edgar Stephenson and Ana Rivera; that they were joint (and several) owners thereof; and
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds withdrawn from that either of them could withdraw any part or the whole of said account during the lifetime of both, and the balance, if
savings account No. 35342-038 were conjugal partnership properties and part of the estate, and hence, there was any, upon the death of either, belonged to the survivor. 17
allegedly no ground for reimbursement. She also sought his ouster for failure to include the sums in question for xxx xxx xxx
inventory and for "concealment of funds belonging to the estate." 4 In Macam v. Gatmaitan, 18 it was held:
Vitug insists that the said funds are his exclusive property having acquired the same through a survivorship agreement xxx xxx xxx
executed with his late wife and the bank on June 19, 1970. The agreement provides: This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article 1790 of the Civil Code,
We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST AND SAVINGS one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other
ASSOCIATION (hereinafter referred to as the BANK), that all money now or hereafter deposited by us or any or either party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. As
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already stated, Leonarda was the owner of the house and Juana of the Buick automobile and most of the furniture. By
virtue of Exhibit C, Juana would become the owner of the house in case Leonarda died first, and Leonarda would
become the owner of the automobile and the furniture if Juana were to die first. In this manner Leonarda and Juana
reciprocally assigned their respective property to one another conditioned upon who might die first, the time of death
determining the event upon which the acquisition of such right by the one or the other depended. This contract, as any
other contract, is binding upon the parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon
acquired the ownership of the house, in the same manner as Leonarda would have acquired the ownership of the
automobile and of the furniture if Juana had died first. 19
xxx xxx xxx
There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal,
having been acquired during the existence of the marita. relations. 20
Neither is the survivorship agreement a donation inter vivos, for obvious reasons, because it was to take effect after the
death of one party. Secondly, it is not a donation between the spouses because it involved no conveyance of a spouse's
own properties to the other.
It is also our opinion that the agreement involves no modification petition of the conjugal partnership, as held by the
Court of Appeals, 21 by "mere stipulation" 22 and that it is no "cloak" 23 to circumvent the law on conjugal property
relations. Certainly, the spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several
bank account, more commonly denominated in banking parlance as an "and/or" account. In the case at bar, when the
spouses Vitug opened savings account No. 35342-038, they merely put what rightfully belonged to them in a money-
making venture. They did not dispose of it in favor of the other, which would have arguably been sanctionable as a
prohibited donation. And since the funds were conjugal, it can not be said that one spouse could have pressured the other
in placing his or her deposits in the money pool.
The validity of the contract seems debatable by reason of its "survivor-take-all" feature, but in reality, that contract
imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code. 24
Under Article 2010 of the Code:
ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves to give
or to do something in consideration of what the other shall give or do upon the happening of an event
which is uncertain, or which is to occur at an indeterminate time.
Under the aforequoted provision, the fulfillment of an aleatory contract depends on either the happening of an event
which is (1) "uncertain," (2) "which is to occur at an indeterminate time." A survivorship agreement, the sale of a
sweepstake ticket, a transaction stipulating on the value of currency, and insurance have been held to fall under the first
category, while a contract for life annuity or pension under Article 2021, et sequentia, has been categorized under the
second. 25 In either case, the element of risk is present. In the case at bar, the risk was the death of one party and
survivorship of the other.
However, as we have warned:
xxx xxx xxx
But although the survivorship agreement is per se not contrary to law its operation or effect may be
violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak
to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a
forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and
established against the agreement involved in this case. 26
xxx xxx xxx
There is no demonstration here that the survivorship agreement had been executed for such unlawful purposes, or, as
held by the respondent court, in order to frustrate our laws on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased her husband, the latter has acquired upon
her death a vested right over the amounts under savings account No. 35342-038 of the Bank of America. Insofar as the
respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, we hold that the court was in error.
Being the separate property of petitioner, it forms no more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its resolution, dated February 9,
1988, are SET ASIDE.
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