1
Republic of the Philippines 680 to Maria, and her "remaining properties" including Lot
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 176943 October 17, 2008
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD,
PROSPERO ALUAD, and CONNIE ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.
DECISION
CARPIO MORALES, J.:
Petitioners mother, Maria Aluad (Maria), and respondent
Zenaido Aluad were raised by the childless spouses Matilde
Aluad (Matilde) and Crispin Aluad (Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674,
675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz.
After Crispin died, his wife Matilde adjudicated the lots to
herself.1
On November 14, 1981, Matilde executed a document
entitled "Deed of Donation of Real Property Inter Vivos" 2
(Deed of Donation) in favor of petitioners mother Maria3
covering all the six lots which Matilde inherited from her
husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the
DONOR [Matilde] for the DONEE [Maria], the latter being
adopted and hav[ing] been brought up by the former the
DONOR, by these presents, transfer and convey, BY WAY OF
DONATION, unto the DONEE the property above-described,
to become effective upon the death of the DONOR,
but in the event that the DONEE should die before the
DONOR, the present donation shall be deemed
rescinded and [of] no further force and effect; Provided,
however, that anytime during the lifetime of the DONOR or
anyone of them who should survive, they could use[,]
encumber or even dispose of any or even all of the parcels
of land herein donated.4 (Emphasis and underscoring
supplied)
On September 30, 1986, Original Certificates of Title over Lot
Nos. 674 and 676 were issued in Matildes name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent
by a Deed of Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a
last will and testament,6 devising Lot Nos. 675, 677, 682, and
No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on
September 24 of the same year.7
On August 21, 1995, Marias heirs-herein petitioners filed
before the Regional Trial Court (RTC) of Roxas City a
Complaint,8 for declaration and recovery of ownership and
possession of Lot Nos. 674 and 676, and damages against
respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of
land above-described until January 1991 when defendant
entered and possessed the two (2) parcels of land claiming
as the adopted son of Crispin Aluad who refused to give back
possession until Matilde Aluad died in [1994] and then
retained the possession thereof up to and until the present
time, thus, depriving the plaintiffs of the enjoyment of said
parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs
succeeded by inheritance by right of representation from
their deceased mother, Maria Aluad who is the sole and only
daughter of Matilde Aluad[.]9
To the complaint respondent alleged in his Answer.10
That Lot 674 is owned by the defendant as this lot was
adjudicated to him in the Last Will and Testament of Matilde
Aluad x x x while Lot 676 was purchased by him from Matilde
Aluad. These two lots are in his possession as true owners
thereof.11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint
Already Filed to Conform to Evidence12 to which it annexed
an Amended Complaint13 which cited the donation of the six
lots via Deed of Donation in favor of their mother Maria.
Branch 15 of the RTC granted the motion and admitted the
Amended Complaint.14
Respondent filed an Amended Answer15 contending, inter
alia, that the Deed of Donation is forged and falsified and
petitioners change of theory showed that "said document
was not existing at the time they filed their complaint and
was concocted by them after realizing that their false claim
that their mother was the only daughter of Matild[e] Aluad
cannot in anyway be established by them";16 and that if ever
said document does exist, the same was already revoked by
Matilde "when [she] exercised all acts of dominion over said
properties until she sold Lot 676 to defendant and until her
death with respect to the other lots without any opposition
from Maria Aluad."17
The trial court, by Decision18 of September 20, 1996, held
that Matilde could not have transmitted any right over Lot
 2
Nos. 674 and 676 to respondent, she having previously
alienated them to Maria via the Deed of Donation. Thus it
disposed:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered:
1. Declaring the plaintiffs as the rightful owners of the
subject Lots Nos. 674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the
subject lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorneys fees;
b. Twenty thousand pesos (P20,000.00), representing the
income from subject Lot 676, a year from 1991 up to the
time said lot is delivered to the plaintiffs, together with the
interest thereof at the legal rate until fully paid;
c. Ten thousand pesos (P10,000.00), representing the
income from the subject Lot No. 674, a year from 1991 up
to the time said lot is delivered to the plaintiffs, plus legal
interest thereof at the legal rate until fully paid; and
d. The costs of the suit.
Defendants counterclaim is ordered dismissed for lack of
merit.
SO ORDERED.19
On petitioners motion, the trial court directed the issuance
of a writ of execution pending appeal.20 Possession of the
subject lots appears to have in fact been taken by
petitioners.
By Decision of August 10, 2006, the Court of Appeals
21
reversed the trial courts decision, it holding that the Deed of
Donation was actually a donation mortis causa, not inter
vivos, and as such it had to, but did not, comply with the
formalities of a will. Thus, it found that the Deed of Donation
was witnessed by only two witnesses and had no attestation
clause which is not in accordance with Article 805 of the Civil
Code, reading:
Art. 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by
the testators name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will shall, also
sign, as aforesaid, each and every page thereof, except the
last on the left margin and all the pages shall be numbered
correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that that testator signed
the will and every page thereof, or caused some other person
to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in
the presence of the testator, and of one another.
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
While the appellate court declared respondent as the rightful
owner of Lot No. 676, it did not so declare with respect to
Lot No. 674, as Matildes last will and testament had not yet
been probated. Thus the Court of Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit,
the same is hereby GRANTED and the Decision of the
Regional Trial Court of Roxas City, Branch 15, dated 20
September 1996, in Civil Case No. V-6686 for declaration of
ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-
appellant as the lawful owner of Lot [No.] 676 of the Pilar
Cadastre. Accordingly, plaintiffs-appellees are directed to
return the possession of the said lot to the defendant-
appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00
to defendant-appellant as attorneys fees and litigation
expenses.
Costs against plaintiffs-appellees.
SO ORDERED.22 (Emphasis in the original; underscoring
supplied)
Their Motion for Reconsideration23 having been denied,24
petitioners filed the present Petition for Review,25 contending
that the Court of Appeals erred
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT
BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE
DEED OF DONATION INTER VIVOS IN FAVOR OF
PETITIONERS MOTHER IS IN FACT A DONATION MORTIS
CAUSA.
 3
II
X X X WHEN IT RULED THAT RESPONDENT IS THE
RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON THE
BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO
HAD NO MORE RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE
RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED
WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED
OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF
EXECUTION PENDING APPEAL IS IN VIOLATION OF
PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF
COURT (AND ORDERING PETITIONERS TO RETURN
POSSESSION OF LOT 676 TO RESPONDENT) AND
ORDERING PETITIONERS TO PAY ATTORNEYS FEES AND
COST[S] OF SUIT.26
As did the appellate court, the Court finds the donation to
petitioners mother one of mortis causa, it having the
following characteristics:
(1) It conveys no title or ownership to the transferee before
the death of the transferor; or what amounts to the same
thing, that the transferor should retain the ownership (full or
naked) and control of the property while alive;
(2) That before the death of the transferor, the transfer
should be revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties
conveyed; and
(3) That the transfer should be void if the transferor should
survive the transferee.27 (Emphasis and underscoring
supplied)
The phrase in the earlier-quoted Deed of Donation "to
become effective upon the death of the DONOR" admits of
no other interpretation than to mean that Matilde did not
intend to transfer the ownership of the six lots to petitioners
mother during her (Matildes) lifetime.28
The statement in the Deed of Donation reading "anytime
during the lifetime of the DONOR or anyone of them
who should survive, they could use, encumber or even
dispose of any or even all the parcels of land herein
donated"29 means that Matilde retained ownership of the
lots and reserved in her the right to dispose them. For the
right to dispose of a thing without other limitations than
those established by law is an attribute of ownership.30 The
phrase in the Deed of Donation "or anyone of them who
should survive" is of course out of sync. For the Deed of
Donation clearly stated that it would take effect upon the
death of the donor, hence, said phrase could only have
referred to the donor Matilde. Petitioners themselves
concede that such phrase does not refer to the donee, thus:
x x x [I]t is well to point out that the last provision (sentence)
in the disputed paragraph should only refer to Matilde Aluad,
the donor, because she was the only surviving spouse at the
time the donation was executed on 14 November 1981, as
her husband Crispin Aluad [] had long been dead as early
as 1975.31
The trial court, in holding that the donation was inter vivos,
reasoned:
x x x The donation in question is subject to a resolutory term
or period when the donor provides in the aforequoted
provisions, "but in the event that the DONEE should die
before the DONOR, the present donation shall be deemed
rescinded and [of] no further force and effect". When the
donor provides that should the "DONEE" xxx die before the
DONOR, the present donation shall be deemed rescinded
and [of] no further force and effect" the logical construction
thereof is that after the execution of the subject donation,
the same became effective immediately and shall be
"deemed rescinded and [of] no further force and effect"
upon the arrival of a resolutory term or period, i.e., the death
of the donee which shall occur before that of the donor.
Understandably, the arrival of this resolutory term or period
cannot rescind and render of no further force and effect a
donation which has never become effective, because,
certainly what donation is there to be rescinded and
rendered of no further force and effect upon the arrival of
said resolutory term or period if there was no donation which
was already effective at the time when the donee died?32
(Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court,
however, thus:
x x x [P]etitioners contend that the stipulation on rescission
in case petitioners [donee] die ahead of [donor] Cabatingan
is a resolutory condition that confirms the nature of the
donation as inter vivos.
Petitioners arguments are bereft of merit.33
xxxx
x x x The herein subject deeds expressly provide that the
donation shall be rescinded in case [donees] the petitioners
predecease [the donor] Conchita Cabatingan. As stated in
Reyes v. Mosqueda, one of the decisive characteristics of a
donation mortis causa is that the transfer should be
 4
considered void if the donor should survive the donee. This
is exactly what Cabatingan provided for in her donations. If
she really intended that the donation should take effect
during her lifetime and that the ownership of the properties
donated to the donee or independently of, and not by reason
of her death, she would not have expressed such proviso in
the subject deeds.34 (Underscoring supplied)
As the Court of Appeals observed, "x x x [t]hat the donation
is mortis causa is fortified by Matildes acts of possession as
she continued to pay the taxes for the said properties which
remained under her name; appropriated the produce; and
applied for free patents for which OCTs were issued under
her name."35
The donation being then mortis causa, the formalities of a
will should have been observed36 but they were not, as it was
witnessed by only two, not three or more witnesses following
Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation
clause38 the execution of which clause is a requirement
separate from the subscription of the will and the affixing of
signatures on the left-hand margins of the pages of the will.
So the Court has emphasized:
x x x Article 805 particularly segregates the requirement that
the instrumental witnesses sign each page of the will from
the requisite that the will be "attested and subscribed by [the
instrumental witnesses]. The respective intents behind these
two classes of signature[s] are distinct from each other. The
signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the page
they are signing forms part of the will. On the other hand,
the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the
attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested
will. Even if the instrumental witnesses signed the left-hand
margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses
undertakings in the clause, since the signatures that do
appear on the page were directed towards a wholly different
avowal.
x x x It is the witnesses, and not the testator, who are
required under Article 805 to state the number of pages used
upon which the will is written; the fact that the testator had
signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another. The only
proof in the will that the witnesses have stated these
elemental facts would be their signatures on the attestation
clause.39 (Emphasis and underscoring supplied)
Furthermore, the witnesses did not acknowledge the will
before the notary public,40 which is not in accordance with
the requirement of Article 806 of the Civil Code that every
will must be acknowledged before a notary public by the
testator and the witnesses.
More. The requirement that all the pages of the will must be
numbered correlatively in letters placed on the upper part of
each page was not also followed.41
The Deed of Donation which is, as already discussed, one of
mortis causa, not having followed the formalities of a will, it
is void and transmitted no right to petitioners mother. But
even assuming arguendo that the formalities were observed,
since it was not probated, no right to Lot Nos. 674 and 676
was transmitted to Maria.42 Matilde thus validly disposed of
Lot No. 674 to respondent by her last will and testament,
subject of course to the qualification that her (Matildes) will
must be probated. With respect to Lot No. 676, the same
had, as mentioned earlier, been sold by Matilde to
respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the
donation of Lot No. 674 in favor of their mother is indeed
mortis causa, hence, Matilde could devise it to respondent,
the lot should nevertheless have been awarded to them
because they had acquired it by acquisitive prescription, they
having been in continuous, uninterrupted, adverse, open,
and public possession of it in good faith and in the concept
of an owner since 1978.43
Petitioners failed to raise the issue of acquisitive prescription
before the lower courts, however, they having laid their claim
on the basis of inheritance from their mother. As a general
rule, points of law, theories, and issues not brought to the
attention of the trial court cannot be raised for the first time
on appeal.44 For a contrary rule would be unfair to the
adverse party who would have no opportunity to present
further evidence material to the new theory, which it could
have done had it been aware of it at the time of the hearing
before the trial court.45 WHEREFORE, the petition is
DENIED.
DIGEST: ALUAD VS ALUAD
G.R. No. 176943, October 17, 2008
FACTS:
Petitioners mother, Maria Aluad (Maria), and
respondent Zenaido Aluad were raised by the childless
spouses Matilde Aluad (Matilde) and Crispin Aluad
(Crispin).Crispin was the owner of six lots identified as Lot
Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre,
Capiz. After Crispin died, his wife Matilde adjudicated the lots
 5
to herself.On November 14, 1981, Matilde executed a
document entitled Deed of Donation of Real Property Inter
Vivos (Deed of Donation) in favor of petitioners mother
Maria covering all the six lots which Matilde inherited from
her husband Crispin.
On September 30, 1986, Original Certificates of Title
over Lot Nos. 674 and 676 were issued in Matildes name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent
by a Deed of Absolute Sale of Real Property. Subsequently or
on January 14, 1992, Matilde executed a last will and
testament,devising Lot Nos. 675, 677, 682, and 680 to Maria,
and her remaining properties including Lot No. 674 to
respondent. Matilde died on January 25, 1994, while Maria
died on September 24 of the same year. On August 21, 1995,
Marias heirs-herein petitioners filed before the Regional Trial
Court (RTC) of Roxas City a Complaint, for declaration and
recovery of ownership and possession of Lot
Nos. 674 and 676, and damages against respondent. The trial
court, by Decision of September 20, 1996, held that Matilde
could not have transmitted any right over Lot
Nos. 674 and 676 to respondent, she having previously
alienated them to Maria via the Deed of Donation.
By Decision of August 10, 2006, the Court of
Appeals reversed the trial courts decision, it holding that the
Deed of Donation was actually a donation mortis causa, not
inter vivos, and as such it had to, but did not, comply with
the formalities of a will. Thus, it found that the Deed of
Donation was witnessed by only two witnesses and had no
attestation clause which is not in accordance with Article 805
of the Civil Code.
ISSUE:
Whether or not the Deed of Donation is a donation
mortis causa and have complied with the formalities of a will.
RULING:
The Deed of Donation which is one of mortis causa.
The donation being then mortis causa, the formalities of a
will should have been observedbut they were not, as it was
witnessed by only two, not three or more witnesses following
Article 805 of the Civil Code.Further, the witnesses did not
even sign the attestation clausethe execution of which clause
is a requirement separate from the subscription of the will
and the affixing of signatures on the left-hand margins of the
pages of the will.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6600 July 30, 1954
HEIRS OF JUAN BONSATO and FELIPE BONSATO,
petitioners,
vs.
COURT OF APPEALS and JOSEFA UTEA, ET AL.,
respondents.
Benedict C. Balderrama for petitioners.
Inocencio Rosete for respondents.
REYES, J.B.L., J.:
This is a petition for review of a decision of the Court of
Appeals holding two deeds of donation executed on the first
day of December, 1939 by the late Domingo Bonsato in favor
of his brother Juan Bonsato and of his nephew Felipe
Bonsato, to be void for being donations mortis causa
accomplished without the formalities required by law for
testamentary dispositions.
The case was initiated in the Court of First Instance of
Pangasinan (Case No. 8892) on June 27, 1945, by
respondents Josefa Utea and other heirs of Domingo Bonsato
and his wife Andrea Nacario, both deceased. Their complaint
(for annulment and damages) charged that on the first day
of December, 1949, Domingo Bonsato, then already a
widower, had been induced and deceived into signing two
notarial deeds of donations (Exhibits 1 and 2) in favor of his
brother Juan Bonsato and of his nephew Felipe Bonsato,
respectively, transferring to them several parcels of land
covered by Tax Declaration Nos. 5652, 12049, and 12052,
situated in the municipalities of Mabini and Burgos, Province
of Pangasinan, both donations having been duly accepted in
the same act and documents. Plaintiffs likewise charged that
the donations were mortis causa and void for lack of the
requisite formalities. The defendants, Juan Bonsato and
Felipe Bonsato, answered averring that the donations made
in their favor were voluntarily executed in consideration of
past services rendered by them to the late Domingo Bonsato;
that the same were executed freely without the use of force
and violence, misrepresentation or intimidation; and prayed
for the dismissal of the case and for damages in the sum of
P2,000.
After trial, the Court of First Instance rendered its decision
on November 13, 1949, finding that the deeds of donation
were executed by the donor while the latter was of sound
mind, without pressure or intimidation; that the deeds were
of donation inter vivos without any condition making their
validity or efficacy dependent upon the death of the donor;
 6
but as the properties donated were presumptively conjugal,
having been acquired during the coverture of Domingo
Bonsato and his wife Andrea Nacario, the donations were
only valid as to an undivided one-half share in the three
parcels of land described therein.
Thereupon the plaintiffs duly appealed to the Court of
Appeals, assigning as primary error the holding of the court
below that the donations are inter vivos; appellants
contending that they were mortis causa donations, and
invalid because they had not been executed with the
formalities required for testamentary disposition.
A division of five of the Court of Appeals took the case under
consideration, and on January 12, 1953, the majority
rendered judgment holding the aforesaid donations to be null
and void, because they were donations mortis causa and
were executed without the testamentary formalities
prescribed by law, and ordered the defendants-appellees
Bonsato to surrender the possession of the properties in
litigation to the plaintiffs-appellants. Two Justices dissented,
claiming that the said donations should be considered as
donations inter vivos and voted for the affirmance of the
decision of the Court of First Instance. The donees then
sought a review by this Court.
The sole issue submitted to this Court, therefore, is the
juridical nature of the donations in question. Both deeds
(Exhs. 1 and 2) are couched in identical terms, with the
exception of the names of the donees and the number and
description of the properties donated. The principal
provisions are the following.
ESCRITURA DE DONATION
Yo, Domingo Bonsato, viudo de Andrea Nacario,
mayor de edad, vencino y residente del municipio
de Agno, Pangasinan, I.F., por la presente declaro
lo siguiente:
Que mi osbrino Felipe Bonsato, casado, tambien
mayor de edad, vecino de Agno, Pangasinan, I.F.,
en consideracion de su largo servicio a Domingo
Bonsato, por la presente hagor 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.
(Description omitted)
Que durante su menor de edad de mi citado sobrino
Felipe Bonsato hasta en estos dias, siempre me ha
apreciado y estimado como uno de mis hijos y
siempre ha cumplido todas mis ordenes, y por esta
razon bajo su pobriza sea movido mi sentimiento
para dar una recompensa de sus trabajos y aprecios
a mi favor.
Que en este de 1939 el donante Domingo Bonsato
ha entregado a Felipe Bonsato dichos terrenos
donados y arriba citados pero de los productos
mientras vive el donante tomara la parte que
corresponde como dueo y la parte como inquilino
tomara Felipe Bonsato.
Que en vista de la vejez del donante, el donatorio
Felipe Bonsato tomara posesion inmediatamente de
dichos terrenos a su favor.
Que despues de la muerte del donante entrara en
vigor dicha donancion y el donatario Felipe Bonsato
tendra todos los derechos de dichos terrenos en
concepto de dueo absoluto de la propiedad libre de
toda responsibilidad y gravamen y pueda ejercitar
su derecho que crea conveniente.
En Testimonio de todo lo Cual, signo la presente en
Agno, Pangasinan, I.F., hoy dia 1.0 de Diciembre,
1939.
Domingo (His thumbmark) Bonsato
Yo, Felipe Bonsato, mayor de edad, casado, Vecino
de Mabini, Pangasinan, I.F., declaro por la presente
que acepto la donacion anterior otorgado por
Domingo Bonsato a mi favor.
(Sgd.) Felipe Bonsato
SIGNADO Y FIRMADO EN PRESENCIA DE:
(Sgd.) Illegible (Sgd.) Illegibl
The majority of the special divisions of five of the Court of
Appeals that took cognizance of this case relied primarily on
the last paragraph, stressing the passage:
Que despues de la muerte del donante entrara en
vigor dicha donacion . . .
while the minority opinion lay emphasis on the second
paragraph, wherein the donor states that he makes "perfect,
irrevocable, and consummated donation" of the properties to
the respective donees, petitioners herein.
Strictly speaking, the issue is whether the documents in
question embody valid donations, or else legacies void for
failure to observe the formalities of wills (testaments).
Despite the widespread use of the term "donations mortis
causa," it is well-established at present that the Civil Code of
1889, in its Art. 620, broke away from the Roman Law
 7
tradition, and followed the French doctrine that no one may
both donate and retain ("donner at retenir ne vaut"), by
merging the erstwhile donations mortis causa with the
testamentary dispositions, thus suppressing said donations
as an independent legal concept.
ART. 620. Donations which are to become effective
upon the death of the donor partake of the nature
of disposals of property by will and shall be
governed by the rules established for testamentary
successions.
Commenting on this article, Mucius Scaevola (Codigo Civl,
Vol. XI, 2 parte, pp. 573, 575 says:
No ha mucho formulabamos esta pregunta:
Subsisten las donaciones mortis causa como
institucion independiente, con propia autonomia y
propio compo jurisdiccional? La respuesta debe ser
negativa.
xxx xxx xxx
Las donaciones mortis causa se consevan en el
Codigo como se conserva un cuerpo fosil en las
vitrinas de un Museo. La asimilacion entre las
donaciones por causa de muerte y las
transmissiones por testamento es perfecta.
Manresa, in his Commentaries (5th ed.), Vol. V. p. 83,
expresses the same opinion:
"La disposicion del articulo 620 significa, por lo
tanto: 1..o, que han desaparecido las llamas antes
donaciones mortis causa por lo que el Codigo no se
ocupa de ellas en absoluto; 2.o, que toda
disposicion de bienes para despues de la muerte
sigue las reglas establecidas para la sucesion
testamentaria.
And Castan, in his Derecho Civil, Vol. IV (7th Ed., 1953), p.
176, reiterates:
(b) Subsisten hoy en nuestro derecho las
donaciones mortis causa? De lo que acabamos de
decir se desprende que las donaciones mortis causa
han perdido en el Codigo Civil su caracter distintivo
y su naturaleza y hay que considerarlos hoy como
una institucion suprimida, refundida en el legado ...
. Las tesis de la desaparcion de las donaciones
mortis causa en nuestro Codigo Civil, acusada ya
precedentemente por el pryecto de 1851 puede
decirse que constituye una communis opinion entre
nuestros expositores, incluso los mas recientes.
We have insisted on this phase of the legal theory in order
to emphasize that the term "donations mortis causa" as
commonly employed is merely a convenient name to
designate those dispositions of property that are void when
made in the form of donations.
Did the late Domingo Bonsato make donations inter vivos or
dispositions post mortem in favor of the petitioners herein?
If the latter, then the documents should reveal any or all of
the following characteristics:
(1) Convey no title or ownership to the transferee before the
death of the transferor; or, what amounts to the same thing,
that the transferor should retain the ownership (full or
naked) and control of the property while alive (Vidal vs.
Posadas, 58 Phil., 108; Guzman vs. Ibea, 67 Phil., 633);
(2) That before his death, the transfer should be revocable
by the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the
donor to dispose of the properties conveyed (Bautista vs.
Sabiniano, G. R.
L-4326, November 18, 1952);
(3) That the transfer should be void if the transferor should
survive the transferee.
None of these characteristics is discernible in the deeds of
donation, Exhibits 1 and 2, executed by the late Domingo
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 dueo"), a reservation that would be
unnecessary if the ownership of the donated property
remained with the donor. Most significant is the absence of
stipulation that the donor could revoke the donations; on the
contrary, the deeds expressly declare them to be
"irrevocable", a quality absolutely incompatible with the idea
of conveyances mortis causa where revocability is of the
essence of the act, to the extent that a testator can not
lawfully waive or restrict his right of revocation (Old Civil
Code, Art. 737; New Civil Code, Art. 828).
It is true that the last paragraph in each donation contains
the phrase "that after the death of the donor the aforesaid
donation shall become effective" (que despues de la muerte
del donante entrara en vigor dicha donacion"). However,
said expression must be construed together with the rest of
the paragraph, and thus taken, its meaning clearly appears
to be that after the donor's death, the donation will take
effect so as to make the donees the absolute owners of the
donated property, free from all liens and encumbrances; for
it must be remembered that the donor reserved for himself
a share of the fruits of the land donated. Such reservation
constituted a charge or encumbrance that would disappear
upon the donor's death, when full title would become vested
in the donees.
 8
Que despues de la muerte del donante entrara en
vigor dicha donacion y el donatario Felipe Bonsato
tendra todos derechos de dichos terrenos en
concepto de dueo absoluto de la propiedad libre de
toda responsibilidad y gravamen y puede ejercitar
su derecho que crea conveniente.
Any other interpretation of this paragraph would cause it to
conflict with the irrevocability of the donation and its
consummated character, as expressed in the first part of the
deeds of donation, a conflict that should be avoided (Civ.
Code of 1889, Art. 1285; New Civil Code, Art. 1374; Rule
123, sec. 59, Rules of Court).
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.
In the cases held by this Court to be transfers mortis causa
and declared invalid for not having been executed with the
formalities of testaments, the circumstances clearly indicated
the transferor's intention to defer the passing of title until
after his death. Thus, in Cario vs. Abaya, 70 Phil., 182, not
only were the properties not to be given until thirty days after
the death of the last of the donors, but the deed also referred
to the donees as "those who had been mentioned to inherit
from us", the verb "to inherit" clearly implying the acquisition
of property only from and after the death of the alleged
donors. In Bautista vs. Sabiniano, 49 Off. Gaz., 549; 92 Phil.,
244, the alleged donor expressly reserved the right to
dispose of the properties conveyed at any time before his
death, and limited the donation "to whatever property or
properties left undisposed by me during my lifetime", thus
clearly retaining their ownership until his death. While in
David vs. Sison, 42 Off. Gaz. (Dec, 1946) 3155, the donor
not only reserved for herself all the fruits of the property
allegedly conveyed, but what is even more important,
specially provided that "without the knowledge and consent
of the donor, the donated properties could not be disposed
of in any way", thereby denying to the transferees the most
essential attribute of ownership, the power to dispose of the
properties. No similar restrictions are found in the deeds of
donation involved in this appeal.
That the conveyance was due to the affection of the donor
for the donees and the services rendered by the latter, is of
no particular significance in determining whether the deeds
Exhibits 1 and 2 constitute transfers inter vivos or not,
because a legacy may have identical motivation.
Nevertheless, the existence of such consideration
corroborates the express irrevocability of the transfers and
the absence of any reservation by the donor of title to, or
control over, the properties donated, and reinforces the
conclusion that the act was inter vivos. Hence, it was error
for the Court of Appeals to declare that Exhibits 1 and 2 were
invalid because the formalities of testaments were not
observed. Being donations inter vivos, the solemnities
required for them were those prescribed by Article 633 of the
Civil Code of 1889 (reproduced in Art. 749 of the new Code,
and it is undisputed that these were duly complied with. As
the properties involved were conjugal, the Court of First
Instance correctly decided that the donations could not
affect the half interest inherited by the respondents Josefa
Utea, et al. from the predeceased wife of the donor.
The decision of the Court of Appeals is reversed, and that
of the Court of First Instance is revived and given effect.
Costs against respondents.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-33849 August 18, 1977
TEODORICO ALEJANDRO, IRENEO POLICARPIO,
VIRGINIA ALEJANDRO, MARIA ALEJANDRO, SALUD
ALEJANDRO, EMILIA ALEJANDRO, FLORENCIO
ALEJANDRO and DIONISIA ALEJANDRO, petitioners,
vs.
HON. AMBROSIO M. GERALDEZ, Presiding Judge,
Court of First Instance of Bulacan, Branch V, Sta.
Maria, ANDREA DIAZ and ANGEL DIAZ, respondents.
G.R. No. L-33968 August 18, 1977
ANDREA DIAZ, petitioner,
vs.
HON. AMBROSIO M. GERALDEZ, in his capacity as
Presiding Judge of the Court of First Instance of
Bulacan, Branch V, TEODORICO ALEJANDRO,
IRENEO POLICARPIO, VIRGINIA ALEJANDRO,
MARIA ALEJANDRO, EMILIA ALEJANDRO,
FLORENCIO ALEJANDRO and DIONISIA
ALEJANDRO, respondents.
AQUINO. J.
This is a case about donations inter vivos and mortis causa .
The bone of contention is Lot No. 2502 of the Lolomboy Friar
Lands Estate with an area of 5,678 square meters, situated
in Sta. Maria, Bulacan and covered by Transfer Certificate of
Title No. 7336. The facts are as follows: On January 20, 1949
the spouses Gabino (Gavino) Diaz and Severa Mendoza, their
daughter-in-law Regina Fernando and their three children,
 9
Olimpia Diaz, Angel Diaz and Andrea Diaz, executed a deed
of donation covering eight lots of the Lolomboy Friar Lands
Estate, owned by the Diaz spouses, located at Barrio Parada,
Sta. Maria, Bulacan. The deed reads as follows:
KASULATAN NG PAGKAKALOOB (A DEED OF DONATION)
ALAMIN NG LAHAT NG MAKATUTUNGHAY
NITO:
Ang pagkakaloob (donation) na ito, ginawa at pinagtibay
dito sa municipio ng Sta. Maria, lalawigan ng Bulacan,
Pilipinas, ngayong ika 20 ng Enero, 1949, ng mag-asawang
GABINO DIAZ at SEVERA MENDOZA, filipinos, may mga
sapat na gulang, naninirahan sa nayon ng Parada, Sta.
Maria, Bulacan na dito'y kinikilalang NAGKALOOB
(DONORS), sa kapakanan nila REGINA FERNANDO,
filipina, may sapat na gulang, viuda; OLIMPIA DIAZ,
filipina, may sapat na gulang, kasal kay Teodorico
Alejandro, ANGEL DIAZ, filipino, may sapat na gulang,
kasal kay Catalina Marcelo, at ANDREA DIAZ, filipina, may
sapat na gulang, kasal kay Perfecto Marcelo, mga
naninirahan sa nayon ng Parada, Sta. Maria, Bulacan, na
dito'y kinikilalang PINAGKALOOBAN (DONEES).
PAGPAPATUNAY:
Na ang Nagkaloob (DONORS) ay siyang mayari, at
kamayari at namomosision sa kasalukuyan ng mga
parcelang lupa kasama ang mga kagalingan na nasa lugar
ng Parada, Sta. Maria, Bulacan, mapagkikilala sa paraang
mga sumusunod (description and statements as to
registration are omitted):
1. TCT No. 7336, Lot No. 2502, 5,678 square meters.
2. TCT No. 10998, Lot No. 2485, 640 square meters.
3. TCT No. 10840, Lot No. 2377,16,600 square meters.
4. TCT No. 10997, Lot No. 2448,12,478 square meters.
5. TCT No. 2051, Lot No. 4168, 1,522 square meters.
6. TCT No. 17960, Lot No. 2522, 3,418 square meters.
7. TCT No. 17961, Lot No. 2521, 715 square meters.
8. TCT No. 21453, Lot No. 2634, 8,162 square meters.
Na dahil at alang-alang sa pagmamahal at masuyong
pagtingin na taglay ng NAGKAKALOOB (DONORS) sa
Pinagkakalooban (DONEES) gayun din sa tapat at
mahalagang paglilingkod noong mga lumipas na panahon
na ginawa ng huli sa una, ang nabanggit na nagkakaloob
sa pamamagitan ng kasulatang ito ng pagkakaloob
(Donation) ay buong pusong inililipat at lubos na ibinibigay
sa nasabing pinagkakalooban ang lupang binabanggit at
makikilala sa unahan nito, laya sa ano mang sagutin at
pagkakautang, katulad nito:
(a) Na ang lupang sinasaysay sa Lote No. 2502 o Titulo
No. 7336, (No. 1) sa unahan nito ay hinati sa dalawang
parte ang unang parte (1/2) na nasa bandang Kanluran
(West) ay ipinagkakaloob ng mag-asawang Gabino Diaz at
Severa Mendoza sa kanilang anak na si Angel Diaz, kasal
kay Catalina Marcelo; at ang ikalawang parte (1/2) na nasa
'bandang silangan (East) ay ipinagkakaloob ng mag-
asawang Gabino Diaz at Severa Mendoza sa kanilang anak
na si Andrea Diaz, kasal kay Perfecto Marcelo."
(Note Some dispositions are not reproduced verbatim
but are merely summarized because they are not
involved in this case. Paragraph (a) above is the one
involved herein).
(b) Lot No. 2485, TCT No.10998, to Regina Fernando
(daughter- in-law of the donors and widow of their
deceased son, Miguel Diaz) and Olimpia Diaz in equal
shares.
(c) Lot No. 2377, TCT No. 10840, 1/3 to Angel Diaz,
1/3 to Andrea Diaz, and 1/3 "ay inilalaan o inihahanda
ng mag-asawang Gabino Diaz at Severa Mendoza sa
kanilang sariling kapakanan o mga gastos nila.
(d) Lot No. 2448, TCT No. 10997 to Olimpia Diaz sa
condicion na pagkakalooban ni Olimpia Diaz si Crisanta
de la Cruz, asawa ni Alejandro - - - - - (sic) sakaling si
Crisanta ay mamatay ng halagang isang daang piso
(P100), bilang gastos sa libing."
(e) Na ang lupang-solar na sinasaysay sa Lote No.
4168 o Titulo No. 2051 (No. 5); lupang-bukid na
sinasaysay sa Lote No. 25?2 o Titulo No. 17960 (No. 6);
at lupang-bukid na sinasaysay sa Lote No. 2521 o Titulo
No. 17961 (No. 7) sa unahan nito ay inilalaan o
inihahanda ng mag-asawang Gabino Diaz at Severa
Mendoza sa kanilang sariling kapakanan o mga gastos
nila.
(f) Lot No. 2643, TCT No. 21453, to Regina Fernando
and her children with the deceased Miguel Diaz in whose
name the said Lot was already registered.
Na kaming mga pinagkakalooban (DONEES) na sila
Regina Fernando, Olimpia Diaz, Angel Diaz at Andrea
Diaz ay tinatanggap namin ng buong kasiyahang loob
ang pagkakaloob (Donation.) na ito, at sa pamamagitan
nito ay kinikilala, pinahahalagahan, at lubos na
pinasasalamatan namin ang kagandahang loob at
 10
paglingap na ipinakita at ginawa ng nagkakaloob
(Donors).
AT SA WAKAS, ang pagkakaloob na ito (DONATION), ay
sumasailalim sa paraang mga sumusunod:
1. Ang mga Pinagkakalooban (Donatarios) na sila Regina
Fernando, Olimpia Diaz, Angel Diaz, at Andrea Diaz,
siyang nakaaalam sa mga gastos sa pagkakasakit at sa
libing ng NAGKALOOB (DONANTE);
2. Na ang mga Pinagkalooban (DONATARIOS) ay hindi
maaaring makapagbili sa pangatlong tao ng nasabing
mga pagaari samantalang ang nagkaloob (Donante) ay
buhay Datapwa't kung ang pagbibiling gagawin ay
upang malunasan ang mga gastos at menitencion ng
Nagkaloob (Donante) samakatuwid ang nasabing
pagbibili ay matuwid;
3. Gayun din, samantalang kaming mag-asawang
Gabino Diaz at Severa Mendoza ay buhay, patuloy ang
aming pamamahala, karapatan, at pagkamay-ari sa mga
nasabing pagaari na sinasaysay sa unahan nito na pag-
aari namin; ngunit sakaling kami ay bawian ng buhay ng
Panginoong Dios at mamatay na ang mga karapatan at
pagkamay-ari ng bawa't Pinagkalooban (Donatarios) sa
bawa't pag-aari na nauukol sa bawa't isa ay may lubos
na kapangyarihan."
SA KATUNAYAN NG LAHAT, linagdaan namin ang
kasulatang ito, dito sa Sta. Maria, Bulacan, ngayon ika
20 ng Enero, 1949, sa patibay ng dalawang sacsing
kaharap. Signature Thumbmark Signature GABINO DIAZ
SEVERA MENDOZA REGINA FERNANDO Thumbmark
Signature Signature OLIMPIA DIAZ ANGEL DIAZ
ANDREA DIAZ
(Acknowledgment signed by Notary Celedonio Reyes is
omitted)
Gabino Diaz died in 1962. On October 20, 1964 Severa
Mendoza and her two children, Andrea Diaz and Angel Diaz,
executed a deed of donation denominated as "Kasulatan ng
Pagbibigay na Magkakabisa Pagkamatay (Donation Mortis
causa )" over one-half of Lot No. 2377-A, which is a portion
of Lot No. 2377 of the Lolomboy Friar Lands Estate (which in
turn is item 3 or [c] in the 1949 deed of donation already
mentioned).
In that deed of donation, Severa Mendoza donated to Andrea
Diaz her one-half share in Lot 2377-A, which one-half share
is Identified as Lot 2377-A-1, on condition that Andrea Diaz
would bear the funeral expenses to be incurred after the
donor's death. She died in 1964.
It should be noted that the other one-half share in Lot 2377-
A or Lot No. 2377-A-2 was previously adjudicated to Angel
Diaz because he defrayed the funeral expenses on the
occasion of the death of Gabino Diaz.
On May 12, 1970 Andrea Diaz sued her brother, Angel Diaz,
in the Court of First Instance of Bulacan, Sta. Maria Branch
V for the partition of Lots Nos. 2377-A and 2502 (Civil Case
No. SM-357). Teodorico Alejandro, the surviving spouse of
Olimpia Diaz, and their children intervened in the said case.
They claimed one-third of Lot No. 2502. Angel Diaz alleged
in his answer that he had. been occupying his share of Lot
No. 2502 "for more than twenty years". The intervenors
claimed that the 1949 donation was a void mortis causa
disposition.
On March 15, 1971 the lower court rendered a partial
decision with respect to Lot No. 2377-A. The case was
continued with respect to Lot No. 2502 which is item No. 1
or (a) in the 1949 deed of donation. The record does not
show what happened to the other six lots mentioned in the
deed of donation.
The trial court in its decision of June 30, 1971 held that the
said deed of donation was a donation mortis causa because
the ownership of the properties donated did not pass to the
donees during the donors' lifetime but was transmitted to the
donees only "upon the death of the donors".
However, it sustained the division of Lot No. 2502 into two
equal parts between Angel Diaz and Andrea Diaz on the
theory that the said deed of donation was effective "as an
extra-judicial partition among the parents and their children.
Consequently, the Alejandro intervenors were not given any
share in Lot No. 2502. Angel Diaz and the intervenors were
ordered to pay Andrea Diaz "attorney's fees of P1,000 each
or a total of P2,000".
The Alejandro intervenors filed a motion for reconsideration,
On July 16, 1971 the trial court denied that motion but
eliminated the attorney's fees.
Andrea Diaz and the Alejandro intervenors filed separate
appeals to this Court under Republic Act No. 5440. Andrea
Diaz contends that the 1949 deed of donation is a valid
donation inter vivos and that the trial court erred in deleting
the award for attorney's fees. The Alejandro intervenors
contend that the said donation is mortis causa ; that they are
entitled to a one-third share in Lot No, 2502, and that the
trial court erred in characterizing the deed as a valid
partition. In the ultimate analysis, the appeal involves the
issue of whether the Alejandro intervenors should be
awarded one-third of Lot No. 2502, or 1,892 square meters
thereof, as intestate heirs of the Diaz spouses.
To resolve that issue, it is necessary to determine whether
the deed of donation is inter vivos or mortis causa. A brief
 11
exposition on the nature of donation inter vivos and mortis
causa may facilitate the resolution of that issue. Many legal
battles have been fought on the question of whether a
particular deed is an inter vivos or mortis causa donation.
The copious jurisprudence on that point sheds light on that
vexed question. The Civil Code provides:
ART. 728. Donations which are to take effect upon the
death of the donor partake of the nature of
testamentary provisions, and shall be governed by the
rules established in the Title on Succession. (620).
ART. 729. When the donor intends that the donation
shall take effect during the lifetime of the donor,
though the property shall not be delivered till after the
donor's death, this shall be a donation inter vivos. The
fruits of the property from the time of the acceptance
of the donation, shall pertain to the donee, unless the
donor provides otherwise. (n)
ART. 730. The fixing of an event or the imposition of
a suspensive condition, which may take place beyond
the natural expectation of life of the donor, does not
destroy the nature of the act as a donation inter vivos
unless a contrary intention appears. (n)
ART. 731. When a person donates something subject
to the resolutory condition of the donor's survival,
there is a donation inter vivos. (n)
ART. 732. Donations which are to take effect inter
vivos shall be governed by the general provisions on
contracts and obligations in all that is not determined
in this Title. (621)."
Nature of donations inter vivos and mortis causa transfers.
Before tackling the issues raised in this appeal, it is
necessary to have some familiarization with the distinctions
between donations inter vivos and mortis causa because the
Code prescribes different formalities for the two kinds of
donations. An utter vivos donation of real property must be
evidenced by a public document and should be accepted by
the donee in the same deed of donation or in a separate
instrument. In the latter case, the donor should be notified
of the acceptance in an authentic form and that step should
be noted in both instruments. (Art. 749, Civil Code. As to
inter vivos donation of personal property, see art. 748).
On the other hand, a transfer mortis causa should be
embodied in a last will and testament (Art. 728, supra). It
should not be called donation mortis causa . It is in reality a
legacy (5 Manresa, Codigo Civil, 6th Ed., p. 107). If not
embodied in a valid will, the donation is void (Narag vs.
Cecilio, 109 Phil. 299; Aznar vs. Sucilla 102 Phil. 902; Tuazon
vs. Posadas, 54 Phil. 289; Serrano vs. Solomon, 105 Phil.
998, 1002).
This Court advised notaries to apprise donors of the
necessity of clearly specifying whether, notwithstanding the
donation, they wish to retain the right to control and dispose
at will of the property before their death, without the consent
or intervention of the beneficiary, since the reservation of
such right would be a conclusive indication that the transfer'
would be effective only at the donor's death, and, therefore,
the formalities of testaments should be observed; while, a
converso, the express waiver of the right of free disposition
would place the inter vivos character of the donation beyond
dispute (Cuevas vs. Cuevas, 98 Phil. 68,72).
From the aforequoted articles 728 to 732, it is evident that it
is the time of effectivity (aside from the form) which
distinguishes a donation inter vivos from a donation mortis
causa . And the effectivity is determined by the time when
the full or naked ownership (dominum plenum or dominium
directum) of the donated properties is transmitted to the
donees. (See Lopez vs. Olbes, 15 Phil. 540; Gonzales and
Fuster Fabra vs. Gonzales Mondragon, 35 Phil. 105). The
execution of a public instrument is a mode of delivery or
tradition (Ortiz vs. Court of Appeals, 97 Phil. 46).
If the donation is made in contemplation of the donor's
death, meaning that the full or naked ownership of the
donated properties will pass to the donee only because of
the donor's death, then it is at that time that the donation
takes effect, and it is a donation mortis causa which should
be embodied in a last will and testament (Bonsato vs. Court
of Appeals, 95 Phil. 481).
But if the donation takes effect during the donor's lifetime or
independently of the donor's death, meaning that the full or
naked ownership (nuda proprietas) ) of the donated
properties passes to the donee during the donor's lifetime,
not by reason of his death but because of the deed of
donation, then the donation is inter vivos (Castro vs. Court
of Appeals, L-20122, April 28, 1969, 27 SCRA 1076).
The effectivity of the donation should be ascertained from
the deed of donation and the circumstances surrounding its
execution. Where, for example, it is apparent from the
document of trust that the donee's acquisition of the
property or right accrued immediately upon the effectivity of
the instrument and not upon the donor's death, the donation
is inter vivos (Kiene vs. Collector of Internal Revenue, 97 Phil.
352).
There used to be a prevailing notion, spawned by a study of
Roman Law, that the Civil Code recognizes a donation mortis
as a juridical act in contraposition to a donation inter vivos.
That impression persisted because the implications of article
620 of the Spanish Civil Code, now article 728, that "las
donaciones que hayan de producir sus efectos pro muerte
del donante participan de la naturaleza de las disposiciones
de ultima voluntad, y se regiran por las reglas establecidas
en el capitulo de la sucesion testamentaria" had not been
 12
fully expounded in the law schools. Notaries assumed that
the donation mortis causa of the Roman Law was
incorporated into the Civil Code.
As explained by Justice J. B. L. Reyes in the Bonsato case,
supra, article 620 broke away from the Roman Law tradition
and followed the French doctrine that no one may both
donate and retain. Article 620 merged donations mortis
causa with testamentary dispositions and thus suppressed
the said donations as an independent legal concept. Castan
Tobenas says:
(b) Subsisten hoy en nuestro Derecho las donaciones
mortis causa ? De lo que acabamos de decir se
desprende que las donaciones mortis causa han perdido
en el Codigo civil su caracter distintivo y su naturaleza,
y hay que considerarlas hoy como una institucion
suspirimida, refundida en la del legado. ...
La tesis de la desaparicion de las donaciones mortis
causa en nuestro Codigo Civil, acusada ya
precedentemente por el projecto de 1851, puede decirse
que constituye una communis opinio entre nuestros
expositores, incluso los mas recientes. ...
Garcia Goyena, comentando dicho proyecto, decia que
la Comision se habia adherido al acuerdo de suprimir las
donaciones mortis causa , seguido por casi todos los
Codigos modernos. Las donaciones mortis causa
a;adia-eran una especie de montsruo entre los
contratos y ultimas voluntades; las algarabia del
Derecho romano y patrio sobre los puntos de
semenjanza y disparidad de estas donaciones con los
pactos y legados no podia producir sino dudas,
confusion y pleitos en los rarisimos casos que ocurriesen
por la dificuldad de apreciar y fijar sus verdaderos
caracteres' "(4 Derecho Civil Espanol, Comun y Foral, 8th
Ed., 1956, pp. 182-3).
Manresa is more explicit. He says that "la disposicion del
articulo 620 significa, por lo tanto: (1) que han desaperacido
las llamadas antes donaciones mortis causa , por lo que el
Codigo no se ocupa de ellas en absoluto; (2) que toda
disposicion de bienes para despues de la muerte sigue las
reglas establecidas para la sucesion testamentaria" (5
Comentarios al Codigo Civil Espanol, 6th Ed., p.107). Note
that the Civil Code does not use the term donation mortis
causa . ( Section 1536 of the Revised Administrative Code in
imposing the inheritance tax uses the term "gift mortis causa
").lwphl@it
What are the distinguishing characteristics of a donation
mortis causa? Justice Reyes in the Bonsato case says that in
a disposition post mortem (1) the transfer conveys no title
or ownership to the transferee before the death of the
tansferor, or the transferor (meaning testator) retains the
ownership, full or naked (domino absoluto or nuda
proprietas) (Vidal vs. Posadas, 58 Phil. 108; De Guzman vs.
Ibea, 67 Phil. 633; (2) the transfer is revocable before the
transferor's death and revocabllity may be provided for
indirectly by means of a reserved power in the donor to
dispose of the properties conveyed (Bautista vs. Sabiniano,
92 Phil. 244), and (3) the transfer would be void if the
transferor survived the transferee.
In other words, in a donation mortis causa it is the donor's
death that determines that acquisition of, or the right to, the
property donated, and the donation is revocable at the
donor's will, Where the donation took effect immediately
upon the donee's acceptance thereof and it was subject to
the resolutory condition that the donation would be revoked
if the donee did not give the donor a certain quantity of rice
or a sum of money, the donation is inter vivos (Zapanta vs.
Posadas, Jr., 52 Phil. 557).
Justice Reyes in the subsequent cast of Puig vs. Penaflorida,
L-15939, November 29, 1965, 15 SCRA 276, synthesized the
rules as follows:
1. That the Civil Code recognizes only gratuitous transfers
of property which are effected by means of donations inter
vivos or by last will and testament executed with the
requisite legal formalities.
2. That in inter vivos donations the act is immediately
operative even if the material or physical deliver (execution)
of the property may be deferred until the donor's death,
whereas, in a testamentary disposition, nothing is conveyed
to the grantee and nothing is acquired by him until the
death of the grantortestator. The disposition is ambulatory
and not final.
3. That in a mortis causa disposition the conveyance or
alienation should be (expressly or by necessary implication)
revocable ad nutum or at the discretion of the grantor or so
called donor if he changes his mind (Bautista vs. Saniniano,
92 Phil. 244).
4. That, consequently, the specification in the deed of the
cases whereby the act may be revoked by the donor
indicates that the donation is inter vivos and not a mortis
causa disposition (Zapanta vs. Posadas, 52 Phil. 557).
5. That the designation of the donation as mortis causa , or
a provision in the deed to the effect the donation "is to take
effect at the death of the donor", is not a controlling
criterion because those statements are to be construed
together with the rest of the instrument in order to give
effect to the real intent of the transferor (Laureta vs. Mata
and Mango, 44 Phil. 668; Concepcion vs. Concepcion, 91
Phil. 823; Cuevas vs. Cuevas, 98 Phil. 68).
6. That a conveyance for an onerous
consideration is governed by the rules of
 13
contracts and not by those of donations or
testaments (Carlos vs. Ramil, 20 Phil. 183;
Manalo vs. De Mesa, 29 Phil. 495).
7. That in case of doubt the conveyance
should be deemed a donation inter vivos
rather than mortis causa , in order to avoid
uncertainty as to the ownership of the
property subject of the deed.
It may be added that the fact that the donation is given in
consideration of love and affection or past or future services
is not a characteristic of donations inter vivos because
transfers mortis causa may be made also for those reasons.
There is difficulty in applying the distinctions to controversial
cases because it is not easy sometimes to ascertain when
the donation takes effect or when the full or naked title
passes to the transferee. As Manresa observes, "when the
time fixed for the commencement of the enjoyment of the
property donated be at the death of the donor, or when the
suspensive condition is related to his death, confusion might
arise" (5 Codigo Civil, 6th Ed., p. 108).
The existence in the deed of donation of conflicting
stipulations as to its effectivity may generate doubt as to the
donor's intention and as to the nature of the donation
(Concepcion vs. Concepcion, 91 Phil. 823).
Where the donor declared in the deed that the conveyance
was mortis causa and forbade the registration of the deed
before her death, the clear inference is that the conveyance
was not intended to produce any definitive effect nor to pass
any interest to the grantee except after her death. In such a
case, the grantor's reservation of the right to dispose of the
property during her lifetime means that the transfer is not
binding on her until she dies. It does not mean that the title
passed to the grantee during her lifetime. (Ubalde Puig vs.
Magbanua Penaflorida, L-15939, Resolution of January 31,
1966, 16 SCRA 136).
In the following cases, the conveyance was considered a void
mortis causa transfer because it was not cast in the form of
a last will and testament as required in article 728, formerly
article 620:
(a) Where it was stated in the deed of donation that the
donor wanted to give the donee something "to take effect
after his death" and that "this donation shall produce effect
only by and because of the death of the donor, the property
herein donated to pass title after the donor's death" (Howard
vs. Padilla, 96 Phil. 983). In the Padilla case the donation was
regarded as mortis causa although the donated property was
delivered to the donee upon the execution of the deed and
although the donation was accepted in the same deed.
(b) Where it was provided that the donated properties would
be given to the donees after the expiration of thirty days
from the donor's death, the grant was made in the future
tense, and the word "inherit" was used (Carino vs. Abaya, 70
Phil. 182).
(c) Where the donor has the right to dispose of all the
donated properties and the products thereof. Such
reservation is tantamount to a reservation of the right to
revoke the donation (Bautista vs. Sabiniano 92 Phil. 244).
(d) Where the circumstances surrounding the execution of
the deed of donation reveal that the donation could not have
taken effect before the donor's death and the rights to
dispose of the donated properties and to enjoy the fruits
remained with the donor during her lifetime (David vs. Sison,
76 Phil. 418).
But if the deed of donation makes an actual conveyance of
the property to the donee, subject to a life estate in the
donors, the donation is is inter vivos (Guarin vs. De Vera,
100 Phil. 1100).
Articles 729, 730 and 731 have to some extent dissipated the
confusion surrounding the two kinds of donation. The rule in
article 729 is a crystallization of the doctrine announced in
decided cases.
A clear instance where the donor made an inter vivos
donation is found in De Guzman vs. Ibea 67 Phil. 633. In that
case, it was provided in the deed that the donor donated to
the donee certain properties so that the donee "may hold the
same as her own and always" and that the donee would
administer the lands donated and deliver the fruits thereof
to the donor, as long as the donor was alive, but upon the
donor's death the said fruits would belong to the donee. It
was held that the naked ownership was conveyed to the
donee upon the execution of the deed of donation and,
therefore, the donation became effective during the donor's
lifetime.
In Sambaan vs. Villanueva, 71 Phil. 303, the deed of
donation, as in Balaqui vs. Dongso, 53 Phil. 673, contained
conflicting provision. It was provided in the deed that the
donation was made "en consideracion al afecto y carino" of
the donor for the donee but that the donation "surtira efectos
despues de ocurrida mi muerte (donor's death).
That donation was held to be inter vivos because death was
not the consideration for the donation but rather the donor's
love and affection for the donee. The stipulation that the
properties would be delivered only after the donor's death
was regarded as a mere modality of the contract which did
not change its inter vivos character. The donor had stated in
the deed that he was donating, ceding and transferring the
donated properties to the donee. (See Joya vs. Tiongco, 71
Phil. 379).
 14
In Laureta vs. Mata and Magno, 44 Phil. 668 the deed of
donation provided that the donor was donating mortis causa
certain properties as a reward for the donee's services to the
donor and as a token of the donor's affection for him. The
donation was made under the condition that "the donee
cannot take possession of the properties donated before the
death of the donor"; that the ' donee should cause to be held
annually masses for the repose of the donor's soul, and that
he should defray the expenses for the donor's funeral.
It was held that the said donation was inter vivos despite the
statement in the deed that it was mortis causa . The donation
was construed as a conveyance in praesenti ("a present
grant of a future interest") because it conveyed to the donee
the title to the properties donated "subject only to the life
estate of the donor" and because the conveyance took effect
upon the making and delivery of the deed. The acceptance
of the donation was a circumstance which was taken into
account in characterizing the donation as inter vivos.
In Balacui vs. Dongso, supra, the deed of donation involved
was more confusing than that found in the Laureta case. In
the Balaqui case, it was provided in the deed that the
donation was made in consideration of the services rendered
to the donor by the donee; that "title" to the donated
properties would not pass to the donee during the donor's
lifetime, and that it would be only upon the donor's death
that the donee would become the "true owner" of the
donated properties. However, there was the stipulation that
the donor bound herself to answer to the donee for the
property donated and that she warranted that nobody would
disturb or question the donee's right.
Notwithstanding the provision in the deed that it was only
after the donor's death when the 'title' to the donated
properties would pass to the donee and when the donee
would become the owner thereof, it was held in the Balaqui
case that the donation was inter vivos.
It was noted in that case that the donor, in making a
warranty, implied that the title had already been conveyed
to the donee upon the execution of the deed and that the
donor merely reserved to herself the "possesion and
usufruct" of the donated properties.
In Concepcion vs. Concepcion, 91 Phil. 823, it was provided
in the deed of donation, which was also styled as mortis
causa , that the donation was made in consideration of the
services rendered by the donee to the donor and of the
donor's affection for the donee; that the donor had reserved
what was necessary for his maintenance, and that the
donation "ha de producir efectos solamente por muerte de
la donante".
It was ruled that the donation was inter vivos because the
stipulation that the donation would take effect only after the
donor's death "simply meant that the possession and
enjoyment, of the fruits of the properties donated' should
take effect only after the donor's death and not before".
Resolution of the instant case. The donation in the instant
case is inter vivos because it took effect during the lifetime
of the donors. It was already effective during the donors'
lifetime, or immediately after the execution of the deed, as
shown by the granting, habendum and warranty clause of
the deed (quoted below).
In that clause it is stated that, in consideration of the
affection and esteem of the donors for the donees and the
valuable services rendered by the donees to the donors, the
latter, by means of the deed of donation, wholeheartedly
transfer and unconditionally give to the donees the lots
mentioned and described in the early part of the deed, free
from any kind of liens and debts:
Na dahil at alang-alang sa pagmamahal at masuyong
pagtingin na taglay ng NAGKAKALOOB (DONORS) sa
Pinagkakalooban (DONEES) gayun din sa tapat at
mahalagang paglilingkod noong mga lumipas na
panahon na ginawa ng huli sa una ang nabanggit na
nagkakaloob sa pamagitan ng kasulatang ito ng
pagkakaloob (Donation) ay buong pusong inililipat at
lubos na ibinibigay sa nasabing pinagkakalooban ang
lupang binabanggit at makikilala sa unahan nito, laya sa
ano mang sagutin at pagkakautang, katulad nito:
Following the above-ousted granting, habendum and
warranty clause is the donors' declaration that they donate
(ipinagkakaloob) Lot No. 2502, the property in litigation, in
equal shares to their children Angel Diaz and Andrea Diaz,
the western part to Angel and the eastern part to Andrea.
The acceptance clause is another indication that the
donation is inter vivos. Donations mortis causa , being in the
form of a will, are never accepted by the donees during the
donors' lifetime. Acceptance is a requirement for donations
inter vivos.
In the acceptance clause herein, the donees declare that
they accept the donation to their entire satisfaction and, by
means of the deed, they acknowledge and give importance
to the generosity and solicitude shown by the donors and
sincerely thank them.
In the reddendum or reservation clause of the deed of
donation, it is stipulated that the donees would shoulder the
expenses for the illness and the funeral of the donors and
that the donees cannot sell to a third person the donated
properties during the donors' lifetime but if the sale is
necessary to defray the expenses and support of the donors,
then the sale is valid.
The limited right to dispose of the donated lots, which the
deed gives to the donees, implies that ownership had passed
 15
to them by means of' the donation and that, therefore, the
donation was already effective during the donors' lifetime.
That is a characteristic of a donation inter vivos.
However, paragraph 3 of the reddendum in or reservation
clause provides that "also, while we, the spouses Gabino Diaz
and Severa Mendoza, are alive, our administration, right, and
ownership of the lots mentioned earlier as our properties
shall continue but, upon our death, the right and ownership
of the donees to each of the properties allocated to each of
them shall be fully effective." The foregoing is the translation
of the last paragraph of the deed of donation which reads:
(3) Gayun din samantalang kaming mag-
asawang Gabino Diaz at Severa Mendoza
ay buhay, patuloy and aming pamamahala,
karapatan, at pagkamayari sa mga
nasabing pagaari na sinasaysay sa unahan
nito na pagaari namin; ngunit sakaling kami
ay bawian ng buhay ng Panginoong Dios at
mamatay na, ang mga karapatan at
pagkamayari ng bawa't pinagkalooban
(Donatorios) sa bawa't pagaari nauukol sa
bawa't isa ay may lubos na kapangyarihan.
Evidently, the draftsman of the deed did not realize the
discordant and ambivalent provisions thereof. The
habendum clause indicates the transfer of the ownership
over the donated properties to the donees upon the
execution of the deed. But the reddendum clause seems to
imply that the ownership was retained by the donors and
would be transferred to the donees only after their death.
We have reflected on the meaning of the said contradictory
clauses. All the provisions of the deed, like those of a statute
and testament, should be construed together in order to
ascertain the intention of the parties. That task would have
been rendered easier if the record shows the conduct of the
donors and the donees after the execution of the deed of
donation.
But the record is silent on that point, except for the allegation
of Angel Diaz in his answer (already mentioned) that he
received his share of the disputed lot long before the donors'
death and that he had been "openly and adversely
occupying" his share "for more than twenty years". (Andrea
Diaz on page 17 of her brief in L-33849 states that the
donees took possession of their respective shares as
stipulated in the deed of donation. Pages 3,4,18 and 19, tsn
March, 1971).
Our conclusion is that the aforequoted paragraph 3 of the
reddendum or reservation clause refers to the beneficial
ownership (dominium utile) and not to the naked title and
that what the donors reserved to themselves, by means of
that clause, was the management of the donated lots and
the fruits thereof. But, notwithstanding that reservation, the
donation, as shown in the habendum clause, was already
effective during their lifetime and was not made in
contemplation of their death because the deed transferred
to the donees the naked ownership of the donated
properties.
That conclusion is further supported by the fact that in the
deed of donation, out of the eight lots owned by the donors,
only five were donated. Three lots, Lots Nos. 4168, 2522 and
2521 were superflously reserved for the spouses or donors
in addition to one- third of Lot No. 2377. If the deed of
donation in question was intended to be a mortis causa
disposition, then all the eight lots would have been donated
or devised to the three children and daughter-in-law of the
donors.
The trial court's conclusion that the said deed of donation,
although void as a donation inter vivos is valid "as an
extrajudicial partition among the parents and their children"
is not well-taken. Article 1080 of the Civil Code provides that
46 should a person make a partition of his estate by an act
inter vivos or by will, such partition shall be respected,
insofar as it does not prejudice the legitime of the
compulsory heirs."
We have already observed that the said donation was not a
partition of the entire estate of the Diaz spouses since,
actually, only five of the eight lots, constituting their estate,
were partitioned. Hence, that partition is not the one
contemplated in article 1080.
There is another circumstance which strengthens ' the view
that the 1949 deed of donation in question took effect during
the donors' lifetime. It may he noted that in that deed Lot
No. 2377 (items 3 and [c]) was divided into three equal
parts: one-third was donated to Andrea Diaz and one-third
to Angel Diaz. The remaining one-third was reserved and
retained by the donors, the spouses Gabino Diaz and Severo
Mendoza, for their support. That reserved one-third portion
came to be known as Lot No. 2377-A.
In 1964 or after the death of Gabino Diaz, his surviving
spouse Severa Mendoza executed a donation mortis causa
wherein she conveyed to her daughter, Andrea Diaz
(plaintiff-appellant herein), her one-half share in Lot No.
2377-A, which one-half share is known as Lot No. 2377-A-1,
the other half or Lot No. 2377-A-2 having been already
conveyed to Angel Diaz.
That disposition of Lot No. 2377-A-2 clearly implies that the
conveyance in the 1949 deed of donation as to Lot No. 2377
took effect during the lifetime of the donors, Gabino Diaz and
Severa Mendoza, and proves that the 1949 donation was
inter vivos.
The instant case has a close similarity to the pre-war cases
already cited and to three post-liberation cases. In the
 16
Bonsato case, the deed of donation also contained
contradictory dispositions which rendered the deed
susceptible of being construed as a donation inter vivos or
as a donation causa.
It was stated in one part of the deed that the donor was
executing "una donacion perfects e irrevocable consumada"
in favor of the donee in consideration of his past services to
the donor; that at the time of the execution of the deed, the
donor "ha entregado" to the donee "dichos terrenos
donados'; that while the donor was alive, he would receive
the share of the fruits corresponding to the owner; and "que
en vista de la vejez del donante, el donatario Felipe Bonsato
tomara posesion inmediatamente de dichos terrenos a su
favor". These provisions indicate that the donation in
question was inter vivos
However, in the last clause of the deed in the Bonsato case
(as in the instant case), it was provided 'que despues de la
muerte del donante entrara en vigor dicha donacion y el
donatario Felipe Bonsato tendra todos log derechos de
dichos terrernos en concepto de dueno absolute de la
propriedad libre de toda responsabilidad y gravemen y pueda
ejercitar su derecho que crea conveniente". These provisions
would seem to show that the donation was mortis causa .
Nevertheless, it was held in the Bonsato case that the
donation was inter vivos because (1) the ownership of the
things donated passed to the donee; (2) it was not provided
that the transfer was revocable before the donor's death,
and (3) it was not stated that the transfer would be void if
the transferor should survive the transferee.
It was further held in the Bonsato case that the stipulation
"que despues de la muerte del donante entrara en vigor
dicha donacion", should be interpreted together with the
prior provision regarding its irrevocable and consummated
character, and that would mean that the charge or condition
as to the donor's share of the fruits would be terminated
upon the donor's death.
The Puig case, supra, is even more doubtful and
controversial than the instant case. In the Puig case, the
donor, Carmen Ubalde Vda. de Parcon, in a deed entitled
"Donacion Mortis causa dated November 24, 1948 cede y
transfiere en concepto de donacion mortis causa to the
donee, Estela Magbanua Penaflorida three parcels of land in
consideration of the donee's past services and the donor's
love and affection for the latter.
It was stipulated in the deed that the donor could alienate or
mortgage the donated properties "cuando y si necesita
fondos para satisfacer sus proprias necesidades sin que para
ello tega que intervener la Donataria, pues su
consentimiento se sobre entiende aqui parte de que la
donacion que aqui se hace es mortis causa , es decir que la
donacion surtira sus efectos a la muerte de la donante". It
was repeated in another clause of the deed "que lacesion y
transferencia aqui provista surtira efecto al fallecer la
Donante".
It was further stipulated that the donee would defray the
medical and funeral expen of the donor unless the donor had
funds in the bank or "haya cosecho levantada or recogida en
cual caso dichos recursos responderan portales gastos a
disposicion y direccion de la donataria". Another provision of
the deed was that it would be registered only after the
donor's death. In the same deed the donee accepted the
donation.
In the Puig case the donor in another deed entitled Escritura
de Donacion mortis causa " dated December 28, 1949
donated to the same donee, Estela Magbanua Penaflorida
three parcels of land en concepto de una donacion mortis
causa " in consideration of past services. It was provided in
the deed "que antes de su nuerte la donante, podra enajenar
vender traspasar o hipotecar a cualesquiera persona o
entidades los bienes aqui donados a favor de la donataria en
concepto de una donacion mortis causa ". The donee
accepted the donation in the same deed.
After the donor's death both deeds were recorded in the
registry of deeds. In the donor's will dated March 26, 1951,
which was duly probated, the donation of a parcel of land in
the second deed of donation was confirmed.
Under these facts, it was held that the 1948 deed of donation
mortis causa was inter vivos in character in spite of repeated
expressions therein that it was a mortis causa donation and
that it would take effect only upon the donor's death. Those
expressions were not regarded as controlling because they
were contradicted by the provisions that the donee would
defray the donor's expenses even if not connected with her
illness and that the donee's husband would assume her
obligations under the deed, should the donee predecease the
donor. Moreover, the donor did not reserve in the deed the
absolute right to revoke the donation.
But the 1949 deed of donation was declared void because it
was a true conveyance mortis causa which was not
embodied in a last will and testament. The mortis causa
character of the disposition is shown by the donor's
reservation of the right to alienate or encumber the donated
properties to any person or entity.
In the Cuevas case, supra, one Antonina Cuevas executed
on September 18, 1950 a notarial conveyance styled as
"Donacion Mortis causa " where she ceded to her nephew
Crispulo Cuevas a parcel of unregistered land. Crispulo
accepted the donation in the same instrument.
Subsequently, or on May 26, 1952, the donor revoked the
donation.
 17
The deed of donation in the Cuevas case contained the
following provisions which, as in similar cases, are
susceptible of being construed as making the conveyance an
inter vivos or a mortis causa transfer:
"Dapat maalaman ni Crispulo Cuevas na samantalang ako ay
nabubuhay, ang lupa na ipinagkakaloob ko sa kaniya ay ako
pa rin ang patuloy na mamomosecion, makapagpapatrabajo,
makikinabang at ang iba pang karapatan sa pagmamayari ay
sa akin pa rin hanggang hindi ako binabawian ng buhay ng
Maykapal at ito naman ay hindi ko nga iyaalis pagkat kung
ako ay mamatay na ay inilalaan ko sa kaniya."
Translation
"Crispulo Cuevas should know that while I am alive, the land
which I donated to him will still be under my continued
possession; I will be the one to have it cultivated; I will enjoy
its fruits and all the other rights of ownership until Providence
deprives me of life and I cannot take away the property from
him because when I die I reserve the property for him." (sic)
It was held that the donation was inter vivos because the
phrase "hindi ko nga iyaalis (I will not take away the
property") meant that the donor expressly renounced the
right to freely dispose of the property in favor of another
person and thereby manifested the irrevocability of the
conveyance of the naked title to the donee. The donor
retained the beneficial ownership or dominium utile Being an
inter vivos donation, it could be revoked by the donor only
on the grounds specified by law. No such grounds existed.
The donee was not guilty of ingratitude. The other point to
be disposed of is the matter of the claim for attorney's fees
of Andrea Diaz against the Alejandro intervenors.
The other point to be disposed of is the matter of the claim
for attorney's fees of Andrea Diaz against the Alejandro
intervenors.
After a careful consideration of the facts and circumstances
of the case, particularly the apparent good faith of the
Alejandro intervenors in asserting a one-third interest in the
disputed lot and their close relationship to Andrea Diaz, we
find that it is not proper to require them to pay attorney's
fees (Salao vs. Salao, L-26699, March 16, 1976, 70 SCRA
65). (Andrea Diaz did not implead Angel Diaz as a respondent
in her petition for review.)
WHEREFORE, the trial court's amended decision is reversed
insofar as it pronounces that the deed of donation is void.
That donation is declared valid as a donation inter vivos.
The disputed lot should be partitioned in accordance with
that deed between Andrea Diaz and Angel Diaz.
The decision is affirmed insofar as it does not require the
Alejandro intervenors to pay attorney's fees to Andrea Diaz.
No costs. SO ORDERED.
Fernando (Chairman), Barredo, Concepcion, Jr. and Santos,
JJ., concur.
ALEJANDRO V. GERALDEZ- Donation Mortis Causa
All provisions of a deed of donation should be construed
together in case of conflicting statements in order to
determine whether it is inter vivos or mortis causa.
FACTS:
Sps. Gavino Diaz and Severa Mendoza executed a Deed of
Donation in favor of their children, Olimpia, Angel and
Andrea Diaz. In the deed of donation, the Sps. Donated 8
lots, with reservations on certain lots, to their children and
daughters-in-law and with conditions that they are not
allowed to alienate the same to 3rd persons while the couple
are still alive and that they shall continue to administer the
same until their death. The donees manifested their
acceptance in the same deed of donation. When Gavino died,
Severa executed a deed of donation in favor of Angel and
Andrea, giving the siblings each a portion of Lot 2377-A.
When Severa died, Andrea sued Angel to have the lots 2377-
A and 2502 partitioned. Teodorico Alejandro, the surviving
spouse of Olimpia, moved to intervene claiming 1/3 portion
of Lot 2502.
The CFI ruled that the donation was a donation mortis causa
because the ownership of the properties donated did not
pass to the donees during the donors lifetime but was
transmitted to the donees only upon the death of the
donors. It, however, sustained the partition of Lot 2502
since it was an extrajudicial partition. Both parties appealed
to the SC, Andrea contending that it is a donation inter vivos
while Alejandro contending it to be mortis causa.
ISSUE: Whether or not the donation is a donation
inter vivos or mortis causa
RULING: Donation inter vivos
 18

The donation is a donation inter vivos because it took effect

during the lifetime of the donors as provided in Art. 729. It
was stipulated in the deed that out of love and affection by
the donors to the donees, the latter are donating
wholeheartedly and unconditionally free from any kind of lien
and debt. Likewise, it was accepted by the donees which is
a requirement for donations inter vivos. Donations mortis
causa are never accepted during the donors lifetime.

The reservation clause which provides that the donees

cannot sell the lots to 3rd persons while the couple is still
alive implies that the ownership already passed.

Although there was a stipulation where the couple reserved

to themselves the administration, ownership and rights over
the properties mentioned, this should not be construed as to
mean that ownership will pass only after their death. This
refers to the beneficial ownership and not the naked title and
what the donors reserved to themselves by means of that
clause was the management of the donated lots and the
fruits thereof.