Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 1 of 25

Republic of the Philippines Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of
SUPREME COURT the estate any property or right which he may have received from the decedent, during the
Manila lifetime of the latter, by way of donation, or any other gratuitous title in order that it may be
computed in the determination of the legitime of each heir, and in the account of the partition.
G.R. No. 189776 December 15, 2010
The probate court thereafter partitioned the properties of the intestate estate. Thus it disposed:
AMELIA P. ARELLANO, represented by her duly appointed guardians, AGNES P.
ARELLANO and NONA P. ARELLANO, Petitioner, WHEREFORE, premises considered, judgment is hereby rendered declaring that:
vs.
FRANCISCO PASCUAL and MIGUEL PASCUAL, Respondents. 1. The property covered by TCT No. 181889 of the Register of Deeds of Makati as part of
the estate of Angel N. Pascual;
DECISION
2. The property covered by TCT No. 181889 to be subject to collation;
CARPIO MORALES, J.:
3. 1/3 of the rental receivables due on the property at the mezzanine and the 3rd floor
Angel N. Pascual Jr. died intestate on January 2, 1999 leaving as heirs his siblings, namely: of Unit 1110 Tanay St., Makati City form part of the estate of Angel N. Pascual;
petitioner Amelia P. Arellano who is represented by her daughters 1 Agnes P. Arellano (Agnes) and
Nona P. Arellano, and respondents Francisco Pascual and Miguel N. Pascual. 2 4. The following properties form part of the estate of Angel N. Pascual:

In a petition for "Judicial Settlement of Intestate Estate and Issuance of Letters of a. 1/3 share in the House and Lot at 1110 Tanay St., Rizal Village Makati TCT
Administration," docketed as Special Proceeding Case No. M-5034, filed by respondents on April No. 348341 and 1/3 share in the rental income thereon;
28, 2000 before the Regional Trial Court (RTC) of Makati, respondents alleged, inter alia, that a
parcel of land (the donated property) located in Teresa Village, Makati, which was, by Deed of
b. 1/3 share in the Vacant Lot with an area of 271 square meters located at
Donation, transferred by the decedent to petitioner the validity of which donation respondents
Tanay St., Rizal Village, Makati City, TCT No. 119063;
assailed, "may be considered as an advance legitime" of petitioner.

c. Agricultural land with an area of 3.8 hectares located at Puerta Galera

Respondents nephew Victor was, as they prayed for, appointed as Administrator of the estate by
Mindoro covered by OCT No. P-2159;
Branch 135 of the Makati RTC.3

d. Shares of stocks in San Miguel Corporation covered by the following

Respecting the donated property, now covered in the name of petitioner by Transfer Certificate of
Certificate Numbers: A0011036, A006144, A082906, A006087, A065796,
Title No. 181889 of the Register of Deeds of Makati, which respondents assailed but which they,
A11979, A049521, C86950, C63096, C55316, C54824, C120328, A011026,
in any event, posited that it "may be considered as an advance legitime" to petitioner, the trial
C12865, A10439, A021401, A007218, A0371, S29239, S40128, S58308,
court, acting as probate court, held that it was precluded from determining the validity of the
S69309;
donation.

e. Shares of stocks in Paper Industries Corp. covered by the following

Provisionally passing, however, upon the question of title to the donated property only for the
Certificate Numbers: S29239, S40128, S58308, S69309, A006708, 07680,
purpose of determining whether it formed part of the decedents estate,4 the probate court found
A020786, S18539, S14649;
the Deed of Donation valid in light of the presumption of validity of notarized documents. It thus
went on to hold that it is subject to collation following Article 1061 of the New Civil Code which
reads:5 f. share in Eduardo Pascuals shares in Baguio Gold Mining Co.;
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 2 of 25
g. Cash in Banco De Oro Savings Account No. 2 014 12292 4 in the name of
Nona Arellano;
i. Property previously covered by TCT No. 119053 now covered by TCT No.
181889, Register of Deeds of Makati City;
j. Rental receivables from Raul Arellano per Order issued by Branch 64 of the
Court on November 17, 1995.
5. AND the properties are partitioned as follows:
a. To heir Amelia P. Arellano-the property covered by TCT No. 181889;
b. To heirs Francisco N. Pascual and Miguel N. Pascual-the real properties
covered by TCT Nos. 348341 and 119063 of the Register of Deeds of Makati
City and the property covered by OCT No. 2159, to be divided equally between
them up 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 donation, the value of which
shall be determined by an independent appraiser to be designated by Amelia P.
Arellano, Miguel N. Pascual and Francisco N. Pascual. If the real properties are
not sufficient to equalize the shares, then Franciscos and Miguels shares may
be satisfied from either in cash property or shares of stocks, at the rate of
quotation. The remaining properties shall be divided equally among Francisco,
Miguel and Amelia. (emphasis and underscoring supplied)
Before the Court of Appeals, petitioner faulted the trial court in holding that
I WHEREFORE, premises considered, the present appeal is hereby PARTLY GRANTED. The Decision
. . . THE PROPERTY DONATED TO APPELLANT AMELIA PASCUAL ARELLANO IS PART OF THE
ESTATE OF ANGEL PASCUAL, JR.
II
. . . THE PROPERTY DONATED TO APPELLANT IS SUBJECT TO COLLATION UNDER ARTICLE 1061 OF
THE NEW CIVIL CODE.
III
. . . APPELLEES WHO ARE MERELY COLLATERAL RELATIVES OF DECEASED ANGEL N. PASCUAL JR.
AS HIS COMPULSORY HEIRS ENTITLED TO LEGITIMES.
xxxx
and
V
. . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL JR. EQUALLY AMONG HIS LEGAL OR
INTESTATE HEIRS.6 (underscoring supplied)
By Decision7 of July 20, 2009, the Court of Appeals found petitioners appeal "partly meritorious."
It sustained the probate courts ruling that the property donated to petitioner is subject to
collation in this wise:
Bearing in mind that in intestate succession, what governs is the rule on equality of division, We
hold that theproperty subject of donation inter vivos in favor of Amelia is subject to collation.
Amelia cannot be considered a creditor of the decedent and we believe that under the
circumstances, the value of such immovable though not strictly in the concept of advance
legitime, should be deducted from her share in the net hereditary estate. The trial court
therefore committed no reversible error when it included the said property as forming part of the
estate of Angel N. Pascual.8 (citation omitted; emphasis and underscoring supplied)1avvph!1
The appellate court, however, held that, contrary to the ruling of the probate court, herein
petitioner "was able to submit prima facie evidence of shares of stocks owned by the [decedent]
which have not been included in the inventory submitted by the administrator."
Thus, the appellate court disposed, quoted verbatim:
dated January 29, 2008 of the Regional Trial Court of Makati City, Branch 135 in Special
Proceeding Case No. M-5034 is hereby REVERSED and SET ASIDE insofar as the order of inclusion
of properties of the Intestate Estate of Angel N. Pascual, Jr. as well as the partition and
distribution of the same to the co-heirs are concerned.
The case is hereby REMANDED to the said court for further proceedings in accordance with the
disquisitions herein.9 (underscoring supplied)
Petitioners Partial Motion for Reconsideration10 having been denied by the appellate court by
Resolution11 of October 7, 2009, the present petition for review on certiorari was filed, ascribing
as errors of the appellate court its ruling
I
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 3 of 25
. . . THAT THE PROPERTY DONATED BY ANGEL N. PASCUAL, JR. TO PETITIONER AMELIA PASCUAL
ARELLANO IS PART OF HIS ESTATE AT THE TIME OF HIS DEATH.
II
. . . THAT THE PROPERTY DONATED TO PETITIONER IS SUBJECT TO COLLATION UNDER ARTICLE
1061 OF THE NEW CIVIL CODE.
III
. . . THAT RESPONDENTS ARE COMPULSORY HEIRS OF THEIR DECEASED BROTHER ANGEL N.
PASCUAL JR. AND ARE ENTITLED TO LEGITIMES.
IV
. . . IN NOT PARTITIONING THE ESTATE OF ANGEL N. PASCUAL, JR. EQUALLY AMONG PETITIONER
AND RESPONDENTS, AS HIS LEGAL OR INTESTATE HEIRS. 12 (underscoring supplied)
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 the first issue:
The term collation has two distinct concepts: first, it is a mere mathematical operation by the
addition of the value of donations made by the testator to the value of the hereditary estate; and
second, it is the return to the hereditary estate of property disposed of by lucrative title by the
testator during his lifetime.13
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
Collation takes place when there are compulsory heirs, one of its purposes being to determine
the legitime and the free 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 survived by his siblings, who are his collateral relatives and,
therefore, are not entitled to any legitime that part of the testators 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 heirs are those who have precedence over and exclude other compulsory
heirs; legitimate children and descendants are primary compulsory heirs. The secondary
compulsory heirs are those who succeed only in the absence of the primary 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 spouse are concurring compulsory heirs. 17
The decedent not having left any compulsory heir who is entitled to any legitime, he was at
liberty to donate all his 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 no compulsory heir,
however, the donated property is not subject to collation.
On the second issue:
The decedents 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:
Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving
spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance
with the following articles. (underscoring supplied)
Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in
equal shares. (emphasis and underscoring supplied)
WHEREFORE, the petition is GRANTED. The Court of Appeals Decision ordering the collation of
the property donated to petitioner, Amelia N. Arellano, to the estate of the deceased Angel N.
Pascual, Jr. is set aside.
Let the records of the case be REMANDED to the court of origin, Branch 135 of the Makati
Regional Trial Court, which is ordered to conduct further proceedings in the case for the purpose
of determining what finally forms part of the estate, and thereafter to divide whatever remains of
it equally among the parties.SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 4 of 25
G.R. No. 187056 September 20, 2010
JARABINI G. DEL ROSARIO, Petitioner,
vs.
ASUNCION G. FERRER, substituted by her heirs, VICENTE, PILAR, ANGELITO,
FELIXBERTO, JR., all surnamed G. FERRER, and MIGUELA FERRER
ALTEZA, Respondents.
DECISION
ABAD, J.:
This case pertains to a gift, otherwise denominated as a donation mortis causa, which in reality is
a donation inter vivos made effective upon its execution by the donors and acceptance thereof
by the donees, and immediately transmitting ownership of the donated property to the latter,
thus precluding a subsequent assignment thereof by one of the donors.
The Facts and the Case
On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a document
entitled "DonationMortis Causa"1 in favor of their two children, Asuncion and Emiliano, and their
granddaughter, Jarabini (daughter of their predeceased son, Zoilo) covering the spouses 126-
square meter lot and the house on it in Pandacan, Manila 2 in equal shares. The deed of donation
reads:
It is our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the
surviving spouse.
It is our will that Jarabini Gonzales-del Rosario and Emiliano Gonzales will continue to occupy the
portions now occupied by them.
It is further our will that this DONATION MORTIS CAUSA shall not in any way affect any other
distribution of other properties belonging to any of us donors whether testate or intestate and
where ever situated.
It is our further will that any one surviving spouse reserves the right, ownership, possession and
administration of this property herein donated and accepted and this Disposition and Donation
shall be operative and effective upon the death of the DONORS.3
Although denominated as a donation mortis causa, which in law is the equivalent of a will, the
deed had no attestation clause and was witnessed by only two persons. The named donees,
however, signified their acceptance of the donation on the face of the document.
Guadalupe, the donor wife, died in September 1968. A few months later or on December 19,
1968, Leopoldo, the donor husband, executed a deed of assignment of his rights and interests in
subject property to their daughter Asuncion. Leopoldo died in June 1972.
In 1998 Jarabini filed a "petition for the probate of the August 27, 1968 deed of donation mortis
causa" before the Regional Trial Court (RTC) of Manila in Sp. Proc. 98-90589. 4 Asuncion opposed
the petition, invoking his father Leopoldos assignment of his rights and interests in the property
to her.
After trial, the RTC rendered a decision dated June 20, 2003, 5 finding that the donation was in fact
one made inter vivos, the donors intention being to transfer title over the property to the donees
during the donors lifetime, given its irrevocability. Consequently, said the RTC, Leopoldos
subsequent assignment of his rights and interest in the property was void since he had nothing
to assign. The RTC thus directed the registration of the property in the name of the donees in
equal shares.6
On Asuncions appeal to the Court of Appeals (CA), the latter rendered a decision on December
23, 2008,7reversing 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 Leopoldos deed of assignment
in Asuncions favor. The CA further held that, since no proceeding exists for the allowance of
what Jarabini claimed was actually a donation inter vivos, the RTC erred in deciding the case the
way it did. Finally, the CA held that the donation, being one given mortis causa, did not comply
with the requirements of a notarial will, 8 rendering the same void. Following the CAs denial of
Jarabinis motion for reconsideration,9 she filed the present petition with this Court.
Issue Presented
The key issue in this case is whether or not the spouses Leopoldo and Guadalupes donation to
Asuncion, Emiliano, and Jarabini was a donation mortis causa, as it was denominated, or in fact a
donation inter vivos.
The Courts Ruling
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 causa.10
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 5 of 25

In Austria-Magat v. Court of Appeals,11 the Court held that "irrevocability" is a quality absolutely
incompatible with the idea of conveyances mortis causa, where "revocability" is precisely the
essence of the act. A donation mortis causa has 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 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; and
Given that the donation in this case was irrevocable or one given inter vivos, Leopoldos
subsequent assignment of his rights and interests in the property to Asuncion should be
regarded as void for, by then, he had no more rights to assign. He could not give what he no
longer had. Nemo dat quod non habet.18
The trial court cannot be faulted for passing upon, in a petition for probate of what was initially
supposed to be a donation mortis causa, the validity of the document as a donation inter vivos
and the nullity of one of the donors subsequent assignment of his rights and interests in the
property. The Court has held before that the rule on probate is not inflexible and
absolute.19 Moreover, in opposing the petition for probate and in putting the validity of the deed
of assignment squarely in issue, Asuncion or those who substituted her may not now claim that
the trial court improperly allowed a collateral attack on such assignment.

3. That the transfer should be void if the transferor should survive the
transferee.12 (Underscoring supplied) 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 Decision of the Regional Trial Court of Manila, Branch 19, in
The Court thus said in Austria-Magat that the express "irrevocability" of the donation is the
Sp. Proc. 98-90589.SO ORDERED.
"distinctive standard that identifies the document as a donation inter vivos." Here, the donors
plainly said that it is "our will that this Donation Mortis Causa shall be irrevocable and shall be
respected by the surviving spouse." The intent to make the donation irrevocable becomes even Republic of the Philippines
clearer by the proviso that a surviving donor shall respect the irrevocability of the donation. SUPREME COURT
Consequently, the donation was in reality a donation inter vivos. Manila

The donors in this case of course reserved the "right, ownership, possession, and administration FIRST DIVISION
of the property" and made the donation operative upon their death. But this Court has
consistently held that such reservation (reddendum) in the context of an irrevocable donation G.R. No. 131953 June 5, 2002
simply means that the donors parted with their naked title, maintaining
only beneficial ownership of the donated property while they lived.13 MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and MERLY S.
CABATINGAN, petitioners,
Notably, the three donees signed their acceptance of the donation, which acceptance the deed vs.
required.14 This Court has held that an acceptance clause indicates that the donation is inter THE HEIRS OF CORAZON CABATINGAN, namely, LUZ M. BOQUIA, PERLA M. ABELLA,
vivos, since acceptance is a requirement only for such kind of ESTRELLA M. CAETE, LOURDES M. YUSON, and JULIA L. MAYOL, HEIRS OF GENOVIVA
donations.1awphi1 Donations mortis causa, being in the form of a will, need not be accepted by C. NATIVIDAD namely, OSCAR C. NATIVIDAD, OLGA NATIVIDAD, ODETTE NATIVIDAD,
the donee during the donors lifetime.15 OPHELIA NATIVIDAD, RICHARD NATIVIDAD, RAYMUND NATIVIDAD, RICHIE NATIVIDAD,
SONIA NATIVIDAD and ENCARNACION CABATINGAN VDA. DE TRINIDAD, ALFREDO
Finally, as Justice J. B. L. Reyes said in Puig v. Peaflorida,16 in case of doubt, the conveyance CABATINGAN and JESUSA C. NAVADA, respondents.
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. AUSTRIA-MARTINEZ, J.:

Since the donation in this case was one made inter vivos, it was immediately operative and final.
The reason is that such kind of donation is deemed perfected from the moment the donor
learned of the donees acceptance of the donation. The acceptance makes the donee the
absolute owner of the property donated.17
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 vivosor mortis causa.
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 6 of 25
The facts of the case are as follows:
On February 17, 1992, Conchita Cabatingan executed in favor of her brother, petitioner Nicolas
Cabatingan, a "Deed of Conditional of Donation (sic) Inter Vivos for House and Lot" covering one-
half () portion of the former's house and lot located at Cot-cot, Liloan, Cebu. 1 Four (4) other
deeds of donation were subsequently executed by Conchita Cabatingan 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 Cabatingan, a portion of a parcel of land located in Masbate (80,000 sq.
m.); and (c) petitioner Merly S. Cabatingan, a portion of the Masbate property (80,000 sq.
m.).2 These deeds of donation contain similar provisions, to wit:
"That for and in consideration of the love and affection of the DONOR for the DONEE, x x
x the DONOR does hereby, by these presents, transfer, convey, by way of donation,
unto the DONEE the above-described property, together with the buildings and all
improvements existing thereon, to become effective upon the death of the
DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die
before the DONOR, the present donation shall be deemed automatically
rescinded and of no further force and effect; x x x"3 (Emphasis Ours)
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, Branch 55, an action for Annulment And/Or Declaration of Nullity of
Deeds of Donations and Accounting, docketed as Civil Case No. MAN-2599, seeking the
annulment of said four (4) deeds of donation executed on January 14, 1995. 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 for failing to comply with the provisions of the Civil
Code regarding formalities of wills and testaments, considering that these are donations mortis
causa.4 Respondents prayed that a receiver be appointed in order to preserve the disputed
properties, and, that they be declared as co-owners of the properties in equal shares, together
with petitioner Nicolas Cabatingan.5
Petitioners in their Amended Answer, deny respondents' allegations contending that Conchita
Cabatingan freely, knowingly and voluntarily caused the preparation of the instruments. 6
On respondents' motion, the court a quo rendered a partial judgment on the pleadings on
December 2, 1997 in favor of respondents, with the following dispositive portion:
"WHEREREFORE, and in consideration of all the foregoing, judgment is hereby rendered in favor
of the plaintiffs and against the defendant and unwilling co-plaintiff with regards (sic) to the four
Deeds of Donation Annexes "A", "A-1", "B" and Annex "C" which is the subject of this partial
decision by:
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;
b) To declare the plaintiffs and defendants as well as unwilling co-plaintiff as the heirs of
the deceased Conchita Cabatingan and therefore hereditary co-owners of the properties
subject of this partial decision, as mandated under Art. 777 of the New Civil Code;SO
ORDERED."7
The court a quo ruled that the donations are donations mortis causa and therefore the four (4)
deeds in question executed on January 14, 1995 are null and void for failure to comply with the
requisites of Article 806 of the Civil Code on solemnities of wills and testaments. 8
Raising questions of law, petitioners elevated the court a quo's decision to this Court,9 alleging
that:
"THE LOWER COURT PALPABLY DISREGARDED THE LONG-AND-WELL-ESTABLISHED
RULINGS OF THIS HONORABLE SUPREME COURT ON THE CHARACTERIZATION OF
DONATIONS AS INTER VIVOS OR MORTIS CAUSA AND, INSTEAD, PROCEEDED TO
INTERPRET THE DONATIONS IN QUESTION IN A MANNER CONTRARY THERETO." 10
Petitioners insist that the donations are inter vivos donations as these were made by the late
Conchita Cabatingan "in consideration of the love and affection of the donor" for the donee, and
there is nothing in the deeds which indicate that the donations were made in consideration of
Cabatingan's death.11 In addition, petitioners contend that the stipulation on rescission in case
petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the
donation as inter vivos.
Petitioners' arguments are bereft of merit.
In a donation mortis causa, "the right of disposition is not transferred to the donee while the
donor is still alive."12In determining whether a donation is one of mortis causa, the following
characteristics must be taken into account:
(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;
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 7 of 25
(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;
and
(3) That the transfer should be void if the transferor should survive the transferee. 13
In the present case, the nature of the donations as mortis causa is confirmed by the fact that the
donations do not contain any clear provision that intends to pass proprietary rights to petitioners
prior to Cabatingan's death.14 The phrase "to become effective upon the death of the DONOR"
admits of no other interpretation but that Cabatingan did not intend to transfer the ownership of
the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the
donations as mortis causa in the following Acceptance and Attestation clauses, uniformly found
in the subject deeds of donation, to wit:
"That the DONEE does hereby accept the foregoing donation mortis causa under the
terms and conditions set forth therein, and avail herself of this occasion to express her
profound gratitude for the kindness and generosity of the DONOR."
xxx
"SIGNED by the above-named DONOR and DONEE at the foot of this Deed of
Donation mortis causa, which 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
Well in point is National Treasurer of the Phils. v. Vda. de Meimban.17 In said case, the
questioned donation contained the provision:
"That for and in consideration of the love and affection which the DONOR has for the
DONEE, the said Donor by these presents does hereby give, transfer, and convey unto
the DONEE, her heirs and assigns a portion of ONE HUNDRED THOUSAND (100,000)
SQUARE METERS, on the southeastern part Pro-indiviso of the above described property.
(The portion herein donated is within Lot 2-B of the proposed amendment Plan
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
Notably, the foregoing provision is similar to that contained in the donation executed by
Cabatingan. We held in Meimban case that the donation is a mortis causa donation, and that the
above quoted provision establishes the donor's intention to transfer the ownership and
possession of the donated property to the donee only after the former's death. Further:
"As the donation is in the nature of a mortis causa disposition, the formalities of a will
should have been complied with under Article 728 of the Civil Code, otherwise, the
donation is void and would produce no effect. As we have held in Alejandro v. Geraldez
(78 SCRA 245,253), "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 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. (Citing Bonsato v. Court of Appeals, 95 Phil. 481)." 19
We apply the above rulings to the present case. The herein subject deeds expressly provide that
the donation shall be rescinded in case petitioners predecease Conchita Cabatingan. As stated
in Reyes v. Mosqueda,20 one of the decisive characteristics of a donation mortis causa is that
the transfer should be considered void if the donor should survive the donee. 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 be transferred to the
donee or independently of, and not by reason of her death, she would have not expressed such
proviso in the subject deeds.1wphi1.nt
Considering that the disputed donations are donations mortis causa, the same partake of the
nature of testamentary provisions21 and as such, said deeds must be executed in accordance
with the requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil
Code, to wit:
"ART. 805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator's 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 the 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.
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 8 of 25

If the attestation clause is in a language not known to the witnesses, it shall be Block 1, Cavite Beach Subdivision, with an area of 150 square meters, located in Bagong Pook,
interpreted to them. (n) San Antonio, Cavite City.

ART. 806. Every will must be acknowledged before a notary public by the testator and On December 17, 1975, Basilisa executed a document designated as "Kasulatan sa Kaloobpala
the witnesses. The notary public shall not be required to retain a copy of the will, or file (Donation)". The said document which was notarized by Atty. Carlos Viniegra, reads as follows:
another with the office of the Clerk of Court. (n)"
KASULATANG SA KALOOBPALA
The deeds in question although acknowledged before a notary public of the donor and the (DONATION)
donee, the documents were not executed in the manner provided for under the above-quoted
provisions of law. TALASTASIN NG LAHAT AT SINUMAN:

Thus, the trial court did not commit any reversible error in declaring the subject deeds of Na ako, si BASELISA COMERCIANTE, may sapat na gulang, Filipina, balo, at naninirahan sa blg.
donation null and void.WHEREFORE, the petition is hereby DENIED for lack of merit.SO 809 L. Javier Bagong Pook, San Antonio, Lungsod ng Kabite, Filipinas, sa pamamagitan ng
ORDERED. kasulatang itoy

Republic of the Philippines NAGSASALAYSAY

SUPREME COURT
Manila
Na alang-alang sa mabuting paglilingkod at pagtingin na iniukol sa akin ng apat kong mga tunay
SECOND DIVISION
na anak na sila:
G.R. No. 106755 February 1, 2002
APOLINARIA AUSTRIA-MAGAT, petitioner,
vs. ROSARIO AUSTRIA, Filipina, may sapat na gulang, balo, naninirahan sa 809 L. Javier, Bagong
HON. COURT OF APPEALS and FLORENTINO LUMUBOS, DOMINGO COMIA, TEODORA Pook, San Antonio, Lungsod ng Kabite;
CARAMPOT, ERNESTO APOLO, SEGUNDA SUMPELO, MAMERTO SUMPELO and RICARDO
SUMPELO, respondents. CONSOLACION AUSTRIA, Filipina, may sapat na gulang, balo naninirahan sa 809 L. Javier, Bagong
DECISION Pook, San Antonio, Lungsod ng Kabite;
DE LEON, JR., J.:

APOLINARIA AUSTRIA, Filipina, may sapat na gulang, may asawa, naninirahan sa Pasong
Before us is a petition for review of the Decision 1 of the Court of Appeals,2 dated June 30, 1989
Kawayan, Hen. Trias, Kabite;
reversing the Decision,3 dated August 15, 1986 of the Regional Trial Court (RTC) of Cavite, Branch
17. The Decision of the RTC dismissed Civil Case No. 4426 which is an action for annulment of
title, reconveyance and damages. FLORENTINO LUMUBOS, Filipino, may sapat na gulang, asawa ni Encarnacion Magsino, at
naninirahan din sa 809 L. Javier, Bagong Pook, San Antonio, Lungsod ng Kabite; ay

The facts of the case are as follows:

Kusang loob na ibinibigay ko at ipinagkakaloob ng ganap at hindi na mababawi sa naulit ng apat
na anak ko at sa kanilang mga tagamagmana (sic), ang aking isang lupang residential o tirahan
Basilisa Comerciante is a mother of five (5) children, namely, Rosario Austria, Consolacion
sampu ng aking bahay nahan ng nakatirik doon na nasa Bagong Pook din, San Antonio, Lungsod
Austria, herein petitioner Apolinaria Austria-Magat, Leonardo, and one of herein respondents,
ng Kabite, at nakikilala bilang Lote no. 7, Block no.1, of Subdivision Plan Psd-12247; known as
Florentino Lumubos. Leonardo died in a Japanese concentration camp at Tarlac during World War
Cavite Beach Subdivision, being a portion of Lot No. 1055, of the Cadastral survey of Cavite,
II.
GLRO Cadastral Rec. no. 9539; may sukat na 150 metros cuadrados, at nakatala sa pangalan ko
sa Titulo Torrens bilang TCT-T-3268 (RT-4036) ng Lungsod ng Kabite;
In 1953, Basilisa bought a parcel of residential land together with the improvement thereon
covered and described in Transfer Certificate of Title No. RT-4036 (T-3268) and known as Lot 1,
Na ang Kaloob palang ito ay magkakabisa lamang simula sa araw na akoy pumanaw sa mundo,
at sa ilalim ng kondision na:
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 9 of 25

Magbubuhat o babawasin sa halaga ng nasabing lupa at bahay ang anumang magugul o gastos
sa aking libing at nicho at ang anumang matitira ay hahatiin ng APAT na parte, parepareho isang
parte sa bawat anak kong nasasabi sa itaas nito upang maliwanang (sic) at walang
makakalamang sinoman sa kanila;
At kaming apat na anak na nakalagda o nakadiit sa kasulatang ito ay TINATANGGAP NAMIN ang
kaloob-palang ito ng aming magulang na si Basilisa Comerciante, at tuloy pinasasalamatan
namin siya ng taos sa (sic) puso dahil sa kagandahan look (sic) niyang ito sa amin.
SA KATUNAYAN, ay nilagdaan o diniitan namin ito sa Nobeleta, Kabite, ngayong ika-17 ng
Disyembre taong 1975.
Na ang titulo numero TCT-T-2260 (RT-4036) ng Lungsod ng Kabite, bahay sa loteng tirahan ng
Bagong Pook na nababanggit sa nasabing kasulatan, ay mananatili sa poder o possession ng Ina,
na si Basilisa Comerciante habang siya ay nabubuhay at
Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay
ang nasabing Basilisa Comerciante.
Sa katunayan ang nagsilagda kaming lahat sa labak nito sa harap ng abogado Carlos T. Viniegra
at dalawang saksi.
Nobeleta, Kabite. Ika-17 ng Disyembre, 1975. 5

HER MARK HER MARK

On February 6, 1979, Basilisa executed a Deed of Absolute Sale of the subject house and lot in
BASELISA COMERCIANTE ROSARIO AUSTRIA
favor of herein petitioner Apolinaria Austria-Magat for Five Thousand Pesos (P5,000.00). As the
Tagakaloobpala
result of the registration of that sale, Transfer Certificate of Title (TCT for brevity) No. RT-4036 in
the name of the donor was cancelled and in lieu thereof TCT No. T-10434 was issued by the
Register of Deeds of Cavite City in favor of petitioner Apolinaria Austria-Magat on February 8,
(Sgd.) APOLINARIA AUSTRIA HER MARK
1979.
Tagatanggap-pala CONSOLACION AUSTRIA

On September 21, 1983, herein respondents Teodora Carampot, Domingo Comia, and Ernesto
(Sgd.)FLORENTINO LUMUBOS Apolo (representing their deceased mother Consolacion Austria), Ricardo, Mamerto and Segunda,
Tagatanggap-pala all surnamed Sumpelo (representing their deceased mother Rosario Austria) and Florentino
Lumubos filed before the Regional Trial Court of Cavite an action, docketed as Civil Case No. 4426
against the petitioner for annulment of TCT No. T-10434 and other relevant documents, and for
(Acknowledgment signed by Notary Public C.T. Viniegra is omitted). 4 reconveyance and damages.

Basilisa and her said children likewise executed another notarized document denominated as
On August 15,1986, the trial court dismissed Civil Case No. 4426 per its Decision, the dispositive
"Kasulatan" which is attached to the deed of donation. The said document states that: portion of which reads:

KASULATAN
WHEREFORE, in view of the foregoing, this Court hereby renders judgment for defendant
dismissing this case and ordering plaintiffs to pay the amount of P3,000.00 as attorneys fees
TALASTASIN NG MADLA: and the costs of suit.SO ORDERED.6

Na kaming mga nakalagda o nakadiit sa labak nito sila Basilisa Comerciante at ang kanyang
mga anak na sila:
Rosario Austria, Consolacion Austria, Apolonio Austria, at Florentino Lumubos, pawang may mga
sapat na gulang, na lumagda o dumiit sa kasulatang kaloob pala, na sinangayunan namin sa
harap ng Notario Publico, Carlos T. Viniegra, ay nagpapahayag ng sumusunod:
According to the trial court, the donation is a donation mortis causa pursuant to Article 728 of
the New Civil Code inasmuch as the same expressly provides that it would take effect upon the
death of the donor; that the provision stating that the donor reserved the right to revoke the
donation is a feature of a donation mortis causa which must comply with the formalities of a will;
and that inasmuch as the donation did not follow the formalities pertaining to wills, the same is
void and produced no effect whatsoever. Hence, the sale by the donor of the said property was
valid since she remained to be the absolute owner thereof during the time of the said
transaction.
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 10 of 25

On appeal, the decision of the trial court was reversed by the Court of Appeals in its subject Hence this appeal grounded on the following assignment of errors:
decision, the dispositive portion of which reads, to wit:
I
WHEREFORE, in view of the foregoing, the appealed decision is hereby SET ASIDE and a new one
rendered: THE RESPONDENT COURT OF APPEALS, WITH DUE RESPECT, IGNORED THE RULES OF
INTERPRETATION OF CONTRACTS WHEN IT CONSIDERED THE DONATION IN QUESTION ASINTER
1. declaring null and void the Deed of Sale of Registered Land (Annex B) and Transfer VIVOS.
Certificate of Title No. T-10434 of the Registry of Deeds of Cavite City (Annex E) and
ordering the cancellation thereof; and II

2. declaring appellants and appellee co-owners of the house and lot in question in THE RESPONDENT COURT OF APPEALS, AGAIN WITH DUE RESPECT, ERRED IN NOT HOLDING
accordance with the deed of donation executed by Basilisa Comerciante on December THAT THE PRESENT ACTION HAS PRESCRIBED UNDER THE STATUTE OF LIMITATIONS. 9
17, 1975.

Anent the first assignment of error, the petitioner argues that the Court of Appeals erred in ruling
No pronouncement as to costs.SO ORDERED. 7 that the donation was a donation inter vivos. She claims that in interpreting a document, the
other relevant provisions therein must be read in conjunction with the rest. While the document
The appellate court declared in its decision that: indeed stated that the donation was irrevocable, that must be interpreted in the light of the
provisions providing that the donation cannot be encumbered, alienated or sold by anyone, that
In the case at bar, the decisive proof that the deed is a donation inter vivos is in the provision the property donated shall remain in the possession of the donor while she is alive, and that the
that : donation shall take effect only when she dies. Also, the petitioner claims that the donation
is mortis causa for the reason that the contemporaneous and subsequent acts of the donor,
Basilisa Comerciante, showed such intention. Petitioner cites the testimony of Atty. Viniegra, who
Ibinibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na apat na anak ko at sa
notarized the deed of donation, that it was the intent of the donor to maintain control over the
kanilang mga tagapagmana, ang aking lupang residential o tirahan sampu ng aking bahay
property while she was alive; that such intent was shown when she actually sold the lot to herein
nakatirik doon xxx. (emphasis supplied)
petitioner.

This is a clear expression of the irrevocability of the conveyance. The irrevocability of the
We affirm the appellate courts decision.
donation is a characteristic of a donation inter vivos. By the words "hindi mababawi", the donor
expressly renounced the right to freely dispose of the house and lot in question. The right to
dispose of a property is a right essential to full ownership. Hence, ownership of the house and lot The provisions in the subject deed of donation that are crucial for the determination of the class
was already with the donees even during the donors lifetime. xxx to which the donation belongs are, as follows:

xxx xxx xxx xxx xxx xxx

xxx(I)binibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na apat na anak ko at
sa kanilang mga tagapagmana, ang aking lupang residential o tirahan sampu ng aking bahay
In the attached document to the deed of donation, the donor and her children stipulated that:
nakatirik doon na nasa Bagong Pook din, San Antonio, Lungsod ng Kabite
xxx xxx xxx
Gayon din ang nasabing titulo ay hindi mapapasangla o maipagbibili ang lupa habang may
buhay ang nasabing Basilisa Comerciante." Na ang Kaloob palang ito ay magkakabisa lamang simula sa araw na akoy pumanaw sa mundo,
xxx.
The stipulation is a reiteration of the irrevocability of the dispossession on the part of the donor.
On the other hand, the prohibition to encumber, alienate or sell the property during the lifetime xxx xxx xxx
of the donor is a recognition of the ownership over the house and lot in issue of the donees for
only in the concept of an owner can one encumber or dispose a property. 8
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 11 of 25
Na ang titulo numero TCT-T-2260 (RT-4036) ng Lungsod ng Kabite, bahay sa loteng tirahan ng
Bagong Pook na nababanggit sa nasabing kasulatan, ay mananatili sa poder o possesion ng Ina,
na si Basilisa Comerciante habang siya ay nabubuhay at
Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay
ang nasabing Basilisa Comerciante xxx.
It has been held that whether the donation is inter vivos or mortis causa depends on whether the
donor intended to transfer ownership over the properties upon the execution of the
deed.10 In Bonsato v. Court of Appeals, 11 this Court enumerated the characteristics of a
donation mortis causa, to wit:
(1) It conveys no title or ownership to the transferee before the death of the transferor;
or, what amounts to the same thing, that the transferor should retain the ownership (full
or naked) and control of the property while alive;
(2) That before his death, the transfer should be revocable by the transferor at will, ad
nutum; but revocability may be provided for indirectly by means of a reserved power in
the donor to dispose of the properties conveyed;
(3) That the transfer should be void if the transferor should survive the transferee.
Significant to the resolution of this issue is the irrevocable character of the donation in the case
at bar. In Cuevas v. Cuevas,12 we ruled that when the deed of donation provides that the donor
will not dispose or take away the property donated (thus making the donation irrevocable), he in
effect is making a donation inter vivos. He parts away with his naked title but maintains
beneficial ownership while he lives. It remains to be a donation inter vivosdespite an express
provision that the donor continues to be in possession and enjoyment of the donated property
while he is alive. In the Bonsato case, we held that:
(W)hat is most significant [in determining the type of donation] 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). 13
Construing together the provisions of the deed of donation, we find and so hold that in the case
at bar the donation is inter vivos. The express irrevocability of the same ("hindi na mababawi") is
the distinctive standard that identifies that document as a donation inter vivos. The other
provisions therein which seemingly make the donation mortis causa do not go against the
irrevocable character of the subject donation. According to the petitioner, the provisions which
state that the same will only take effect upon the death of the donor and that there is a
prohibition to alienate, encumber, dispose, or sell the same, are proofs that the donation
is mortis causa. We disagree. The said provisions should be harmonized with its express
irrevocability. In Bonsato where the donation per the deed of donation would also take effect
upon the death of the donor with reservation for the donor to enjoy the fruits of the land, the
Court held that the said statements only mean that "after the donors 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."14
In Gestopa v. Court of Appeals,15 this Court held that the prohibition to alienate does not
necessarily defeat theinter vivos character of the donation. It even highlights the fact that what
remains with the donor is the right of usufruct and not anymore the naked title of ownership over
the property donated. In the case at bar, the provision in the deed of donation that the donated
property will remain in the possession of the donor just goes to show that the donor has given up
his naked title of ownership thereto and has maintained only the right to use (jus utendi) and
possess (jus possidendi) the subject donated property.
Thus, we arrive at no other conclusion in that the petitioners cited provisions are only necessary
assurances that during the donors lifetime, the latter would still enjoy the right of possession
over the property; but, his naked title of ownership has been passed on to the donees; and that
upon the donors death, the donees would get all the rights of ownership over the same including
the right to use and possess the same.
Furthermore, it also appeared that the provision in the deed of donation regarding the prohibition
to alienate the subject property is couched in general terms such that even the donor is deemed
included in the said prohibition ("Gayon din ang nasabing Titulo ay hindi mapapasangla o
maipagbibili ang lupa habang maybuhay ang nasabing Basilisa Comerciante"). Both the donor
and the donees were prohibited from alienating and encumbering the property during the
lifetime of the donor. If the donor intended to maintain full ownership over the said property until
her death, she could have expressly stated therein a reservation of her right to dispose of the
same. The prohibition on the donor to alienate the said property during her lifetime is proof that
naked ownership over the property has been transferred to the donees. It also supports 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 donated property while the donor enjoys and
possesses the property during her lifetime. However, it is clear that the donees were already the
owners of the subject property due to the irrevocable character of the donation.
The petitioner argues that the subsequent and contemporaneous acts of the donor would show
that her intention was to maintain control over her properties while she was still living. We
disagree. Respondent Domingo Comia testified that sometime in 1977 or prior to the sale of the
subject house and lot, his grandmother, the donor in the case at bar, delivered the title of the
said property to him; and that the act of the donor was a manifestation that she was
acknowledging the ownership of the donees over the property donated. 16 Moreover, Atty.
Viniegra testified that when the donor sold the lot to the petitioner herein, she was not doing so
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 12 of 25
in accordance with the agreement and intent of the parties in the deed of donation; that she
was disregarding the provision in the deed of donation prohibiting the alienation of the subject
property; and that she knew that the prohibition covers her as well as the donees. 17
Another indication in the deed of donation that the donation is inter vivos is the acceptance
clause therein of the donees. We have ruled that an acceptance clause is a mark that the
donation is inter vivos. Acceptance is a requirement for donations inter vivos. On the other hand,
donations mortis causa, being in the form of a will, are not required to be accepted by the
donees during the donors 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 a certain Baby Santos, the donor, Basilisa
Comerciante, asked one of the respondents herein, Domingo Comia, to redeem the property,
which the latter did. After the petitioner in turn redeemed the property from respondent
Domingo, the donor, Basilisa, sold the property to the petitioner who is one of the donees.
The act of selling the subject property to the petitioner herein cannot be considered as a valid
act of revocation of the deed of donation for the reason that a formal case to revoke the donation
must be filed pursuant to Article 764 of the Civil Code 19 which speaks of an action that has a
prescriptive period of four (4) years from non-compliance with the condition stated in the deed of
donation. The rule that there can be automatic revocation without benefit of a court action does
not apply to the case at bar for the reason that the subject deed of donation is devoid of any
provision providing for automatic revocation in event of non-compliance with the any of the
conditions set forth therein. Thus, a court action is necessary to be filed within four (4) years
from the non-compliance of the condition violated. As regards the ground of estoppel, the donor,
Basilisa, cannot invoke the violation of the provision on the prohibition to encumber the subject
property as a basis to revoke the donation thereof inasmuch as she acknowledged the validity of
the mortgage executed by the donee, Consolacion Austria, when the said donor asked
respondent Domingo Comia to redeem the same. Thereafter, the donor, Basilisa likewise asked
respondent Florentino Lumubos and the petitioner herein to redeem the same. 20 Those acts
implied that the donees have the right of control and naked title of ownership over the property
considering that the donor, Basilisa condoned and acknowledged the validity of the mortgage
executed by one of the donees, Consolacion Austria.
Anent the second issue, the petitioner asserts that the action, against the petitioner, for
annulment of TCT No. T-10434 and other relevant documents, for reconveyance and damages,
filed by the respondents on September 21, 1983 on the ground of fraud and/or implied trust has
already prescribed. The sale happened on February 6, 1979 and its registration was made on
February 8, 1979 when TCT No. RT-4036 in the name of the donor was cancelled and in lieu
thereof TCT No. T-10434 in the name of the petitioner was issued.1wphi1 Thus, more than four
(4) years have passed since the sale of the subject real estate property was registered and the
said new title thereto was issued to the petitioner. The petitioner contends that an action for
reconveyance of property on the ground of alleged fraud must be filed within four (4) years from
the discovery of fraud which is from the date of registration of the deed of sale on February 8,
1979; and that the same prescriptive period also applies to a suit predicated on a trust
relationship that is rooted on fraud of breach of trust.
When ones property is registered in anothers name without the formers consent, an implied
trust is created by law in favor of the true owner. Article 1144 of the New Civil Code provides:
Art. 1144. The following actions must be brought within ten years from the time the right of
action accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment. (n)
Thus, an action for reconveyance of the title to the rightful owner prescribes in ten (10) years
from the issuance of the title.21 It is only when fraud has been committed that the action will be
barred after four (4) years.22
However, the four-year prescriptive period is not applicable to the case at bar for the reason that
there is no fraud in this case. The findings of fact of the appellate court which are entitled to
great respect, are devoid of any finding of fraud. The records do not show that the donor,
Basilisa, and the petitioner ever intended to defraud the respondents herein with respect to the
sale and ownership of the said property. On the other hand, the sale was grounded upon their
honest but erroneous interpretation of the deed of donation that it is mortis causa, not inter
vivos; and that the donor still had the rights to sell or dispose of the donated property and to
revoke the donation.
There being no fraud in the trust relationship between the donor and the donees including the
herein petitioner, the action for reconveyance prescribes in ten (10) years. Considering that TCT
No. T-10434 in the name of the petitioner and covering the subject property was issued only on
February 8, 1979, the filing of the complaint in the case at bar in 1983 was well within the ten-
year prescriptive period.
The Court of Appeals, therefore, committed no reversible error in its appealed Decision.1wphi1
WHEREFORE, the appealed Decision dated June 30, 1989 of the Court of Appeals is hereby
AFFIRMED. No pronouncement as to costs.SO ORDERED.
[No. L-6600. July 30, 1954]
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 13 of 25

5. Donations Inter Vivos; Requisites. The solemnities required for a donation inter vivos are
those prescribed by article 633 of the Civil Code of 1889 (reproduced in article 749, new Civil
Heirs op Juan Bonsato and Felipe Bonsato, petitioners,
Code).
vs. Court of Appeals and Josefa Utea, et al., re-

spondents.

APPEAL by certiorari from the decision of the Court of

1. Wills and Donations Mortis Causa; No One may Both Do-nate and Retain. Despite the
widespread use of the term donations mortis causa, it is well-established at present that the
Appeals.
Civil Code of 1889, in its article 620, broke away from the Roman Law tradition, and followed the
French doctrine that no one may both donate and retain, by merging the erstwhile donations
mortis causa with the testamentary dispositions, thus suppressing said donations as an
independent legal concept. The term donations mortis causa" as now commonly employed is
merely a convenient name to designate those dispositions of property that are void when made
in the form of donations. The facts are stated in the opinion of the court.

2. Id.; Id.; Requisites op a Disposition Mortis Causa. A disposition post mortem should reveal
the following characteristics: Benedicto C. Balderrama for the petitioners.

(1) the transferor retains the ownership (full or naked) and control the property while alive;
Inocencio Rosete for the respondents.
(2) the transfer is revocable,before his death, by the transferor at will, ad nutum; and

(3) the transfer should be Void if the transferor should survive the transferee. Reyes, J. B. L., J.

3. Id. ; Donations Inter Vrvos. If the donor conveys the ownership and only reserves for
himself during his lifetime the owners share of the fruits or produce, and the deed expressly
declares the act to be irrevocable, it is not a donation mortis causa, but a conveyance inter
vivos.
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
4. Donations Mortis Causa; Cases Thereon. I n the cases held by the Supreme Court to be required by
transfers mortis causa and declared invalid for not having been executed with the formalities of
testaments, the circumstances clearly indicated the transferors intention to defer the passing of law for testamentary dispositions.
title until after his death. ( Ca-rino vs. Abaya, 70 Phil., 182; Bautista vs. Sabiniano, 49 Off.Gaz.
(No. 2), p. 549; David vs. Sison, 42 Off. Gaz., p. 3155.)
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 14 of 25

The case was initiated in the Court of First Instance of Pangasinan (Case No. 8892) on June 7, 3570
1945, by re-spondents Josefa Utea and others heirs of Domingo Bonsato and his wife Andrea
Nacario, both deceased. Their complaint (for annulment and damages) charged that on the first OFFICIAL GAZETTE
day of December, 1949, Domingo Bonsato, then already a widower, had been induced and
VOL. 50, No. 8
deceived into signing two notarial deeds of donations (Exhibits 1 and2) in favor of his brother
Juan Bonsato and of his nephew Felipe Bonsato, respectively, transferring to themseveral parcels
of land covered by Tax Declarations Nos. 5652, 12049, and 12052, situated in the municipalities
ofMabini and Burgos, Province of Pangasinan, both donations having been duly accepted in the A division of five of the Court of Appeals took the case under consideration, and on January 12,
same act and documents. Plaintiffs likewise charged that the donations were mortis causa and 1953, the
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 majority rendered judgment holding the aforesaid donations to be null and void, because they
consideration of past services rendered by them to the late Domingo Bonsato ; that the same were donations
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 1*2,000. 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. TwoJustices 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.
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 I
intimidation; that

the deeds were of donation inter vivos without any condition making their validity or efficacy
dependent upon The donees then sought a review by this Court.

the death of the donor; 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 The sole issue submitted to this Court, therefore, is the juridical nature of the donations in
question. Both
one-half share in the three parcels of land described therein. ,
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:
Thereupon the plaintiffs duly appealed to the Court o Appeals, assigning as primary error the
holding of the

court below that the donations are inter vivos; appellants contending that they were mortis ESCRITORA DE DONACION
causa donations, and

invalid because they had not been executed with the formalities required for testamentary
dispositions. - Yo, DOMINGO BONSATO, viudo de Andrea Nacario, mayor de edad, vecino y vesidente del
municipio de Agno, Pangasinan, I.F., por la presente declaro lo siguiente:
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 15 of 25

Que mi sobrino 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 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
Domingo (his thumbmark) Bonsato Yo, Felipe Bonsato, mayor de edad, casado, Vecino de
Mabini.
Pangasinan, I.F., declara por la presente que accepto la donacion anterior otorgado por Domingo
Bonsato a mi favor.

aba jo.
(Sgd.) Felipe Bonsato

(Description omitted)
SIGNADO Y FIP.MADO EN PRESENTLY DE :

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 todos mis ordenes, y (Sgd.) Illegible (Sgd.) Illegible
por esta razon bajo su pobriza sea movido mi sentimiento para dar una recompensa de sus
trabajos y aprecios a mi favor.
August, 1954 OFFICIAL GAZETTE

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 dueno y la parte como inquilino tomara Felipe Bonsato.
The majority of the special division of five of the Court of Appeals that took cognizance of this
case relied
Que en vista de la vejez del donante, el donatario Felipe Bonsato tomara posesion
primarily on the last paragraph, stressing the passage:
inmediatamente de dichos terrenos a su favor.
Que dc spues de la muerte del donantc entrara en vigor dicha donation while the minority
opinion lay emphasis on the second paragraph, wherein the donor states that he makes per-
fect, irrevocable, and consummated donation of the properties to the respective donees,
Que despues de la muerte del donante entrara en vigor dicha donacion y el donatario Felipe
petitioners herein.
Bonsato tendra todos los derechos de dichos terrenos en concepto de dueno absolute de la
propiedad libre de toda responsibilidad y gravamen y pueda ejereitar su derecho que crea
conveniente.

En Testimonio de Todo i.o Cual, signo la presente en Agno, Pangasinan, I.F., hoy dia l. de
deciembre, 1939.
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 tradition, and followed the French doctrine that no one
may both donate and retain (donner at retenir ne vaut), by merging the erstwhile donations
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 16 of 25

mortis causa with the testamentary dispositions, thus suppressing said donations as an 1953), p. 176, reiterates:
independent legal concept.

(b) Subsisten hern on nucstro dereeho las donaciones mortis causa ? De lo que acabamos de
Art. 620. Donations which are to become effective upon thedeath of the donor partake of the decir se desprende que las donaciones mortis causa han perdido en el Codigo Civil su caracter
nature of disposals of property by will and shall be governed by the rules establishedfor distintivo y su naturaleza y hay que considerarlos hoy como una institucion suprimida, refundida
testamentary successions. en el legado

* * * La tesis de la desaparicidn de las donaciones mortis causa en nuestro Cddigo Civil, acusada
ya precedentemente
Commenting on this article, Mucius Seaevola (Codigo

Civil, Vol. XI, 2 " parte, pp. 573, 575 says : 3571

3572

No ha mucho formulabamos esta pregunta: Subsisten las donaciones mortis causa como OFFICIAL GAZETTE
institucion independiente, con propia autonomia y propio compo jurisdictional? I. a respuesta
debe ser negativa. VOL. 50, No. 8

* Sjc * * * s{: sjs por el proyeeto de 1851 puede decirse que constituye una communis opinio entre nuestros
expositores, incluso los mas recientes.

Las donaciones mortis causa, se conservan en el Codigo como se conserva uri cuerpo fosil en las
vitrinas de un Museo. La asimilacidn entre las donaciones por causa de muerte y las We have insisted on this phase of the legal theory in order to emphasize that the term
transmissiones por testamento es perfecta. donations mortis

causa as commonly employed is merely a convenient name to designate those dispositions of

property that are
Manresa, in his Commentaries (5th ed.), Vol. V. p. 83,expresses the same opinion:
void when made in the form of donations.

La disposicion del articulo 620 significa, por lo tanto: l., que ban desaparecido las llamadas
antes donaciones mortis ca-usa por lo que el Codigo no se ocupa de ellas en absolute; 2., que
toda disposicion de bienes para despues de la muerte sigue las reglas establecidas para la
sucesion testamentaria.
Did the late Domingo Bonsato make donations inter vivos or dispositions post mortem in favor of
the peti-
tioners herein? If the latter, then the documents should reveal any or all of the following
characteristics:

And Castan, in his Dereeho Civil, Vol. IV (7th Ed.,

 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 17 of 25
(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 revoca-
bility 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, Novem- ber 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 Do-
mingo Bonsato. The donor only reserved for himself, during his lifetime, the owners share of the
fruits or
produce (de los productos mientras viva el donante to- mara la parte que corresponde como
dueho), a reser-
vation that would be unnecessary if the ownership of the donated property remained with the
donor. Most sig-
nificant 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, Aid;. 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 des- pues de la muerte del donante entrara
en vigor dicha donacion). However, said expression must be construed to- gether with the rest
of the paragraph, and thus taken,
its meaning clearly appears to be that after the donors death, the donation will take effect so as
to make the
donees the absolute owners of the donated property, free
August, 1954
OFFICIAL GAZETTE
3573
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
donors death, when full title would become vested inthe donees.
Que despues de la muerte del donante entrara en vigor dicha donacion y el donatario Felipe
Bonsato tendra todos los derecho de diclios terrenos en concepto de dueno absoluto de la
propiedad libre de toda responsibilidad y gravamen y pueda 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).
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 18 of 25
Que mi sobrino 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 hago y otorgo una
dona-
cion perfecta e irrevocable consumada a favor del citado Felipe Bonsato de dos parcelas de
terreno palayero como se describe masabajo.
In the cases held by this Court to be transfers mortis caiisa and declared invalid for not having
been executed
with the formalities of testaments, the circumstances clearly indicated the transferors intention
to defer the
passing of title until after his death. Thus, in Carino 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 prop-erty only from and after the death of the alleged donors.
In Bautista vs. Sabiniano, G. R. No. L-4236, Nov. 18, 1952, 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 lat-
3574
OFFICIAL GAZETTE
VOL. 50, No. 8
ter, 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.
Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, A.
Reyes, Jugo, Bautista. Angelo, and Concepcion, JJ concur.
Judgment reversed.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 19 of 25
G.R. No. L-45262 July 23, 1990
RUPERTO REYES and REYNALDO C. SAN JUAN, in his capacity as Special
Administrator, petitioners,
vs.
HON. LORENZO R. MOSQUEDA, Judge of CFI, Pampanga (Branch VII), and URSULA D.
PASCUAL,respondents.
G.R. No. L-45394 July 23, 1990
PEDRO DALUSONG, petitioner,
vs
HON. LORENZO R. MOSQUEDA, JUDGE, BRANCH VII, COURT OF FIRST INSTANCE OF
PAMPANGA, and URSULA D. PASCUAL, respondents.
G.R. Nos. 73241-42 July 23, 1990
OFELIA D. PARUNGAO and ROSARIO DUNCIL, petitioners,
vs.
THE HON. INTERMEDIATE APPELLATE COURT, (Third Civil Cases Division), BENJAMIN P.
REYES and OSCAR REYES, respondents.
GUTIERREZ, JR., J.:
The instant petitions have been consolidated as they arose from the same facts and involve
similar issues. Dr. Emilio Pascual died intestate and without issue on November 18,1972. He was
survived by his sister, Ursula Pascual and the children of his late sisters as follows: (1) Maria
Pascual Reyes- Ruperto Reyes and Jose Reyes; (2) Ines Pascual Reyes-Jose P. Reyes, Benito
Reyes, and Manna Reyes Manalastas; (3) Josefa Pascual Reyes-Augusto Reyes and Benjamin
Reyes; and (4) Escolastica Pascual Dalusong (half- blood Pedro Dalusong.
On December 3, 1973, the heirs of Dr. Pascual filed Special Proceedings No. 73-30-M in the then
Court of First Instance of Pampanga for the administration of his estate. Atty. Marcela Macapagal,
Clerk of Court of Branch VII was appointed special administratrix. Macapagal was, however,
replaced by Reynaldo San Juan.
On February 12, 1976, Ursula Pascual filed a motion to exclude some properties from the
inventory of Pascual's estate and to deliver the titles thereto to her. Ursula alleged that Dr.
Pascual during his lifetime or on November 2, 1966 executed a "Donation Mortis Causa" in her
favor covering properties which are included in the estate of Dr. Pascual (subject of Special
Proceedings No. 73-30-M) and therefore should be excluded from the inventory.
On August 1, 1976; the trial court issued an order excluding from the inventory of the estate the
properties donated to Ursula, to wit:
WHEREFORE, in view of all the foregoing discussion, let the properties listed in
paragraph 2 of the motion of February 12, 1976 filed by Ursula D. Pascual thru counsel
be, as it is hereby ordered, excluded from the inventory of the estate of the deceased
Dr. Emilio D. Pascual, without prejudice to its final determination in a separate action.
Special Administrator Reynaldo San Juan is hereby ordered to return to Court the
custody of the corresponding certificates of titles of these properties, until the issue of
ownership is finally determined in a separate action. (G.R. No. 45262, pp. 23-24)
The Order is now the subject of G.R. Nos. 45262 and 45394. On January 5, 1977, we issued a
temporary restraining order enjoining the trial court from enforcing the August 1, 1976 Order.
Among the properties included in the "donation mortis causa" in favor of Ursula was Lot 24, Block
No. 15 of the subdivision plan Psd-3231, located at 1109-1111 R. Papa St., Tondo, Manila as
evidenced by Transfer Certificate of Title No. 17854. The records show that on May 15, 1969,
Emilio Pascual executed a deed of donation of real property inter vivos over the abovementioned
lot in Manila in favor of Ofelia D. Parungao, petitioner in G.R. Nos. 73241-42 a minor with her
mother, Rosario Duncil, accepting the gift and donation for and in her behalf. When Parungao
reached the age of majority or on December 20, 1976, she tried to have the donation registered.
However, she found out that the certificate of title was missing from where it was supposed to be
kept, prompting her to file a petition for reconstitution of title with the Court of First Instance of
Manila. The petition was granted in October 1977. Parungao registered the deed of donation with
the Register of Deeds of Manila who cancelled Transfer Certificate of Title No. 17854 and issued
in lieu thereof Transfer Certificate of Title No. 129092 in the name of Ofelia Parungao. She then
filed a motion for exclusion in Special Proceedings No. 73-30-M.
In the meantime, on September 23, 1976, Ursula Pascual executed a deed of absolute sale over
the Tondo property in favor of Benjamin, Oscar, Jose and Emmanuel, all surnamed Reyes.
On May 2, 1978, Benjamin Reyes, private respondent in G.R. Nos. 73241-42 filed a complaint for
declaration of nullity of Transfer Certificate of Title No. 129092, Register of Deeds of Manila
and/or reconveyance of deed of title against Ofelia Parungao and Rosario Duncil, with the then
Court of First Instance of Manila. The case was docketed as Civil Case No. 115164.
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 20 of 25
In their answer with compulsory counterclaim Parungao and Duncil, denied Reyes' assertion of
ownership over the Tondo property. On November 6, 1978, Ofelia Parungao filed a complaint for
recovery of possession over the Tondo property against Benjamin Reyes and his nephew Oscar
Reyes with the Court of First Instance of Manila. The case was docketed as Civil Case No. 119359.
In her complaint, Parungao also alleged that as early as 1973, the defendants occupied two (2)
doors of the apartment situated at the Tondo property by mere tolerance of the previous owner,
Dr. Emilio Pascual, and later by her until April 8, 1978 when she formally demanded that the
defendants vacate the premises. Parungao prayed that the defendants be evicted from the
premises.
The two cases were consolidated. On June 3, 1982, the then Court of First Instance, Branch 8
rendered a joint decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered: In Civil Case No. 115164
1) Declaring TCT No. 129092 in the name of Ofelia Parungao null and void; and ordering
the Register of Deeds of Manila to cancel said title and to restore, in lieu thereof, TCT
No. 17854 in the name of Emilio D. Pascual;
2) Ordering Ofelia D. Parungao to pay plaintiff Benjamin P. Reyes the sum of Two
Thousand (P2,000.00) Pesos, as and for attorney's fees; and to pay the costs of suit
including all fees which the Register of Deeds may prescribe for the full implementation
of this decision. For lack of merit, the counterclaim is dismissed.
In Civil Case No. 119359
1) Dismissing the complaint for want of merit; and
2) On the counterclaim, ordering Ofelia Parungao to pay defendant defendants the sum
of Two Thousand (P2,000.00) Pesos as and for attorney's fees.'
Parungao appealed the decision to the then Intermediate Appellate Court. The decision was,
however, affirmed, with costs against the appellant.
The Intermediate Appellate Court decision is now the subject matter in G.R. Nos. 73241-42.
On January 29, 1986, we issued a minute resolution denying the above petition for lack of merit.
The resolution became final and executory on March 10, 1986 and on this same day the entry of
judgment was effected. The entry of judgment was however set aside in the resolution dated
January 19, 1987 on the ground that the January 29, 1986 resolution was not received by the
petitioners' counsel of record. The petitioner was granted leave to file a motion for
reconsideration of the January 29, 1986 resolution.
The motion for reconsideration is now before us for resolution petition.
The issues raised in these petitions are two-fold: (1) In G.R. No. L-45394, petitioner Pedro
Dalusong questions the jurisdiction of the probate court to exclude the properties donated to
Ursula Pascual in its Order dated August 1, 1976, and (2) In G.R. No. L-45262 and G.R. Nos.
73241-42 Ruperto Reyes, Reynaldo C. San Juan, in his capacity as special administrator of the
estate of Emilio Pascual (petitioner in G.R. No.
L- 45262), Ofelia Parungao and Rosario Duncil (petitioners in G.R. Nos. 7324142) question the
appellate court's finding that the "Donation Mortis Causa" executed by Emilio Pascual in favor of
his sister Ursula Pascual was actually a Donation Inter Vivos.
We first discuss the issue on jurisdiction. The questioned August 1, 1976 order of the then Court
of First Instance of Pampanga in S.P. Proc. No. 73-30-M categorically stated that the exclusion
from the inventory of the estate of the deceased Dr. Emilio D. Pascual was "without prejudice to
its final determination in a separate action." The provisional character of the exclusion of the
contested properties in the inventory as stressed in the order is within the jurisdiction of the
probate court. This was stressed in the case of Cuizon v. Ramolete (129 SCRA 495 [1984]) which
we cited in the case of Morales v. Court of First Instance of Cavite, Branch V (146 SCRA 373
[1986]):
It is well-settled rule that a probate court or one in charge of proceedings whether
testate or intestate cannot adjudicate or determine title to properties claimed to be a
part of the estate and which are equally claimed to belong to outside parties. All that
the said court could do as regards said properties is to determine whether they should
or should not be included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the parties, the
administrator, and the opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate court cannot do so
(Mallari v. Mallari, 92 Phil. 694; Baquial v. Amihan, 92 Phil. 501).itc-asl
Similarly, in Valero Vda. de Rodriguez v. Court of Appeals, (91 SCRA 540) we held that
for the purpose of determining whether a certain property should or should not be
included in the inventory, the probate court may pass upon the title thereto but such
determination is not conclusive and is subject to the final decision in a separate action
regarding ownership which may be instituted by the parties (3 Moran's Comments on
the Rules of Court, 1970 Edition, pages 448449 and 473; Lachenal v. Salas,
L-42257, June 14, 1976, 71 SCRA 262, 266).
On the second issue, it may be noted that the Court of Appeals did not pass upon the
authenticity of the 1969 donation to Parungao because of its finding that the 1966 donation to
Pascual was inter vivos. The petitioners do not press the authenticity of the 1969 donation as
their challenge centers on whether or not the 1966 donation was inter vivos. However, the trial
court has a lengthy discussion reflecting adversely on the authenticity of the 1969 donation to
Parungao.
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 21 of 25
The petitioners assert that the 1966 donation was null and void since it was not executed with
the formalities of a will. Therefore, the petitioners in G.R. No. L-45262 insist that the donated
properties should revert to the estate of Emilio Pascual while the petitioners in G.R. Nos. 73241-
42 insist that the donation of real property inter vivos in favor of Ofelia Parungao be given effect.
The subject deed of donation titled "DONATION MORTIS CAUSA" duly notarized by a certain
Cornelio M. Sigua states:
That Dr. Emilio D. Pascual, Filipino, single, of age and resident of Apalit, Pampanga,
hereinafter called the DONOR and Ursula D. Pascual, Filipino, single, also of age,
resident of and with postal address at Apalit, Pampanga, hereinafter called the DONEE,
have agreed, as they do hereby agree, to the following, to wit:
That the said DONOR, Dr. Emilio D. Pascual, for and in consideration of the love and
affection which he has and bears unto the said DONEE, as also for the personal services
rendered by the said DONEE to the said DONOR, does hereby by these presents
voluntarily GIVE, GRANT, and DONATE MORTIS CAUSA unto the said DONEE URSULA D.
PASCUAL, her heirs and assigns, all of my rights, title and interest, in and to the
following parcels of land with all the improvements thereon, situated in the Municipality
of Apalit, Pampanga, and more particularly described and Identified as follows:
xxx xxx xxx
(Enumerated herein are 41 parcels of land)
Also included in this DONATION MORTIS CAUSA are all personal properties of the DONOR
in the form of cash money or bank deposits and insurance in his favor, and his real
properties situated in other towns of Pampanga, such as San Simon, and in the province
of Rizal, San Francisco del Monte and in the City of Manila.
That the said donor has reserved for himself sufficient property to maintain him for life;
and that the said DONEE does hereby ACCEPT and RECEIVE this DONATION MORTIS
CAUSA and further does express his appreciation and gratefulness for the generosity of
said DONOR; (Rollo of G.R. No. L-45262, pp. 12-16)
xxx xxx xxx
Considering the provisions of the DONATION MORTIS CAUSA the appellate court ruled that the
deed of donation was actually a donation inter vivos although denominated as DONATION
MORTIS CAUSA.
It is, now a settled rule that the title given to a deed of donation is not the determinative factor
which makes the donation "inter vivos" or "mortis causa" As early as the case of Laureta v.
Manta, et al., (44 Phil. 668 [1928]) this Court ruled that the dispositions in a deed of donation-
whether "inter vivos" or "mortis causa" do not depend on the title or term used in the deed of
donation but on the provisions stated in such deed. This Court explained inConcepcion v.
Concepcion (91 Phil. 823 [1952])
...But, it is a rule consistently followed by the courts that it is the body of the document
of donation and the statements contained therein, and not the title that should be
considered in ascertaining the intention of the donor. Here, the donation is entitled and
called donacion onerosa mortis causa. From the body, however, we find that the
donation was of a nature remunerative rather than onerous. It was for past services
rendered, services which may not be considered as a debt to be paid by the donee but
services rendered to her freely and in goodwill. The donation instead of being onerous
or for a valuable consideration, as in payment of a legal obligation, was more of
remuneratory or compensatory nature, besides being partly motivated by affection.
We should not give too much importance or significance to or be guided by the use of
the phrase 'mortis causa in a donation and thereby to conclude that the donation is not
one of inter vivos. In the case of De Guzman et al. v. Ibea et al. (67 Phil. 633), this Court
through Mr. Chief Justice Avancena said that if a donation by its terms is inter vivos, this
character is not altered by the fact that the donor styles it mortis causa.
In the case of Laureta v. Mata, et al. (44 Phil. 668), the court held that the donation
involved was inter vivos. There, the donor Severa Magno y Laureta gave the properties
involved as
... a reward for the services which he is rendering me, and as a token of my affection
toward him and of the fact that he stands high in my estimation, I hereby donate 'mortis
causa to said youth all the properties described as follows:
xxx xxx xxx
I also declare that it is the condition of this donation that the donee cannot take
possession of the properties donated before the death of the donor, and in the event of
her death the said donee shall be under obligation to cause a mass to be held annually
as a suffrage in behalf of my sold, and also to defray the expenses of my burial and
funerals.'
It will be observed that the present case and that of Laureta above cited are similar in
that in both cases the donation was being made as a reward for services rendered and
being rendered, and as a token of affection for the donee; the phrase 'mortis causa was
used; the donee to take possession of the property donated only after the death of the
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 22 of 25

donor; the donee was under obligation to defray the expenses incident to the With these findings we find no need to discuss the other arguments raised by the petitioners.
celebration of the anniversary of the donor's death, including church fees. The donation
in both cases were duly accepted. In said case of Laureta this Court held that the WHEREFORE, this Court hereby renders judgment as follows:
donation was in praesenti and not a gift in futuro.

1) In G.R. Nos. 45262 and 45394 the petitions are DENIED. The Temporary Restraining Order
In the later case of Bonsato et al. v. Court of appeals, et al. (95 Phil. 481 [1954]) this Court, issued on January 5, 1977 is hereby LIFTED; and
distinguished the characteristics of a donation inter vivos and "mortis causa" in this wise:

2) In G.R. Nos. 73241-42, the motion for reconsideration is DENIED. This DENIAL is FINAL.SO
Did the late Domingo Bonsato, make donations inter vivos or dispositions post mortem ORDERED.
in favor of the petitioners herein? If the latter, then the documents should reveal any or
all of the following characteristics:
Republic of the Philippines
SUPREME COURT
(1) Convey no title or ownership to the transferee before the death of the transferor; or, Manila
what amounts to the same thing, that the transferor should retain the ownership (fun or
naked) and control of the property while alive (Vidal v. Posadas, 58 Phil., 108; Guzman v.
SECOND DIVISION
Ibea 67 Phil., 633);

G.R. No. 82027 March 29, 1990

(2) That before his death, the transfer should be revocable by the transferor at will, ad
nutum; but revocability may be provided for indirectly by means of a reserved power in
the donor to dispose of the properties conveyed (Bautista v. Sabiniano, G.R. No. L- 4326, ROMARICO G. VITUG, petitioner,
November 18, 1952); vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINO-CORONA, respondents.
(3) That the transfer should be void if the transferor should survive the transferee.
Rufino B. Javier Law Office for petitioner.
These principles were repeated in the case of Castro v. Court of Appeals (27 SCRA 1076 [1969]),
to wit: Quisumbing, Torres & Evangelista for private respondent.

Whether a donation is inter vivos or mortis causa depends upon the nature of the
disposition made. 'Did the donor intend to transfer the ownership of the property
donated upon the execution of the donation? If this is so, as reflected from the SARMIENTO, J.:
provisions contained in the donation, then it is inter vivos; otherwise, it is merely mortis
causa, or made to take effect after death.' (Howard v. Padilla and Court of Appeals, G.R.
No. L-7064 and L-7098, April 22, 1955.

This case is a chapter in an earlier suit decided by this Court 1 involving the probate of the two
Applying the above principles to the instant petitions, there is no doubt that the so-called
wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on November 10, 1980,
DONATION MORTIS CAUSA is really a donation inter vivos. The donation was executed by Dr.
naming private respondent Rowena Faustino-Corona executrix. In our said decision, we upheld
Pascual in favor of his sister Ursula Pascual out of love and affection as well as a recognition of
the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's estate with her (Mrs.
the personal services rendered by the donee to the donor. The transfer of ownership over the
Vitug's) widower, petitioner Romarico G. Vitug, pending probate.
properties donated to the donee was immediate and independent of the death of the donor. The
provision as regards the reservation of properties for the donor's subsistence in relation to the
other provisions of the deed of donation confirms the intention of the donor to give naked On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from the probate court
ownership of the properties to the donee immediately after the execution of the deed of to sell certain shares of stock and real properties belonging to the estate to cover allegedly his
donation. advances to the estate in the sum of P667,731.66, plus interests, which he claimed were
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 23 of 25
personal funds. As found by the Court of Appeals, 2the alleged advances consisted of P58,147.40
spent for the payment of estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as
"increment thereto." 3 According to Mr. Vitug, he withdrew the sums of P518,834.27 and
P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that the same funds
withdrawn from savings account No. 35342-038 were conjugal partnership properties and part of
the estate, and hence, there was allegedly no ground for reimbursement. She also sought his
ouster for failure to include the sums in question for inventory and for "concealment of funds
belonging to the estate." 4
Vitug insists that the said funds are his exclusive property having acquired the same through a
survivorship agreement executed with his late wife and the bank on June 19, 1970. The
agreement provides:
We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now or
hereafter deposited by us or any or either 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 and
collectible or withdrawable by either or any of us during our lifetime, and after the death
of either or any of us shall belong to and be the sole property of the survivor or
survivors, and shall be payable to and collectible or withdrawable by such survivor or
survivors.
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 the receipt or check of the survivor or survivors, for
any payment or withdrawal made for our above-mentioned account shall be valid and
sufficient release and discharge of the BANK for such payment or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and granted "the motion to sell some of
the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the personal funds of
Romarico Vitug in the total sum of P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for certiorari filed by the herein private
respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis
causa which "did not comply with the formalities of a valid will as prescribed by Article 805 of the
Civil Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a prohibited
donation under the provisions of Article 133 of the Civil Code. 9
The dispositive portion of the decision of the Court of Appeals states:
WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II,
petition) is hereby set aside insofar as it granted private respondent's motion to sell
certain properties of the estate of Dolores L. Vitug for reimbursement of his alleged
advances to the estate, but the same order is sustained in all other respects. In
addition, respondent Judge is directed to include provisionally the deposits in Savings
Account No. 35342-038 with the Bank of America, Makati, in the inventory of actual
properties possessed by the spouses at the time of the decedent's death. With costs
against private respondent. 10
In his petition, Vitug, the surviving spouse, assails the appellate court's ruling on the strength of
our decisions inRivera v. People's Bank and Trust Co. 11 and Macam v. Gatmaitan 12 in which we
sustained the validity of "survivorship agreements" and considering them as aleatory
contracts. 13
The petition is meritorious.
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 to the
testator. 15 In this case, the monies subject of savings account No. 35342-038 were in the nature
of conjugal funds In the case relied on, Rivera v. People's Bank and Trust Co., 16 we rejected
claims that a survivorship agreement purports to deliver one party's separate properties in favor
of the other, but simply, their joint holdings:
xxx xxx xxx
... Such conclusion is evidently predicated on the assumption that Stephenson was the exclusive
owner of the funds-deposited in the bank, which assumption was in turn based on the facts (1)
that the account was originally opened in the name of Stephenson alone and (2) that Ana Rivera
"served only as housemaid of the deceased." But it not infrequently happens that a person
deposits money in the bank in the name of another; and in the instant case it also appears that
Ana Rivera served her master for about nineteen years without actually receiving her salary from
him. The fact that subsequently Stephenson transferred the account to the name of himself
and/or Ana Rivera and executed with the latter the survivorship agreement in question although
there was no relation of kinship between them but only that of master and servant, nullifies the
assumption that Stephenson was the exclusive owner of the bank account. In the absence, then,
of clear proof to the contrary, we must give full faith and credit to the certificate of deposit which
recites in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that
they were joint (and several) owners thereof; and that either of them could withdraw any part or
the whole of said account during the lifetime of both, and the balance, if any, upon the death of
either, belonged to the survivor. 17
xxx xxx xxx
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 24 of 25
In Macam v. Gatmaitan, 18
it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to article
1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other 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 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.
 Pasco v Heirs of De Guzman to Emnace v Ca*Succession Set II * Page 25 of 25

WHEREFORE, the decision of the respondent appellate court, dated June 29, 1987, and its No costs. SO ORDERED.
resolution, dated February 9, 1988, are SET ASIDE.