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.

G.R. No. 189776 (December 15, 2010)

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]

AMELIA P. ARELLANO, represented by her duly appointed guardians, AGNES P. ARELLANO and
NONA P. ARELLANO, Petitioner, - versus - FRANCISCO PASCUAL and MIGUEL PASCUAL,
Respondents.

Angel N. Pascual Jr. died intestate on January 2, 1999 leaving as heirs his siblings, namely:
petitioner Amelia P. Arellano who is represented by her daughters, Agnes P. Arellano (Agnes) and
Nona P. Arellano, and respondents Francisco Pascual and Miguel N. Pascual.
Respondents alleged that a parcel of land (the donated property) located in Teresa Village, Makati,
which was, by Deed of Donation, transferred by the decedent to petitioner, may be considered as an
advance legitime of petitioner.
Trial court: it was precluded from determining the validity of the donation

For the purpose of determining whether the property formed part of the decedents estate:
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]

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.
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. There being no compulsory heir, however, the donated property is not subject to collation.

Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of
the estate any property or right which he may have received from the decedent, during the
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.
CA: partially reversed the decision of TC

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 the property 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

2.

Whether the property of the estate should have been ordered equally distributed among the
parties: YES

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.

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.
Case is remanded to the RTC

ISSUES and RULING

1. Whether the property donated to petitioner is subject to collation: NO
G.R. No. 187056 (September 20, 2010)

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]

JARABINI G. DEL ROSARIO, - versus - ASUNCION G. FERRER, substituted by her heirs, VICENTE,
PILAR, ANGELITO, FELIXBERTO, JR., all surnamed G. FERRER, and MIGUELA FERRER ALTEZA,

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]

On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a document entitled
Donation Mortis 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.

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;

It is our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the
surviving spouse.

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

It is our will that Jarabini Gonzales-del Rosario and Emiliano Gonzales will continue to occupy
the portions now occupied by them.

3. That the transfer should be void if the transferor should survive the transferee.

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.

The Court thus said in Austria-Magat that the express irrevocability of the donation is the 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 clearer by the proviso that a surviving donor shall respect the
irrevocability of the donation. Consequently, the donation was in reality a donation inter vivos.

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

The donors in this case of course reserved the right, ownership, possession, and administration 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 simply means that the donors parted with
their naked title, maintaining only beneficial ownership of the donated property while they lived.[13]

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.
Jarabini filed a petition for the probate of the August 27, 1968 deed of donation mortis causa before
the Regional Trial Court.
Asuncion opposed the petition, invoking his father Leopoldos assignment of his rights and interests
in the property to her.
RTC:

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.

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
CA:

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 donation, being one given mortis causa, did not comply with the requirements of a notarial
will,[8] rendering the same void.

Notably, the three donees signed their acceptance of the donation, which acceptance the deed required. This
Court has held that an acceptance clause indicates that the donation is inter vivos, since acceptance is a
requirement only for such kind of donations. Donations mortis causa, being in the form of a will, need not be
accepted by the donee during the donors lifetime.
Finally, as Justice J. B. L. Reyes said in Puig v. Peaflorida,[16] in case of doubt, the conveyance should be
deemed a donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of
the property subject of the deed.
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]
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.
[G.R. No. 131953. June 5, 2002]

ISSUE:
1. 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: DONATION
INTER VIVOS

MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and MERLY S. CABATINGAN, petitioners, vs. THE
HEIRS OF CORAZON CABATINGAN etc

A donation mortis causa has the following characteristics:

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 formers house and lot located at Cot-cot, Liloan, Cebu.

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.

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 and the other, a portion of a parcel of land in Masbate; (b) petitioner Nicolas
Cabatingan, a portion of a parcel of land located in Masbate; and (c) petitioner Merly S. Cabatingan,
a portion of the Masbate property.[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
On May 9, 1995, Conchita Cabatingan died.
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 seeking the annulment of said
four (4) deeds of donations.

Respondents allege, inter alia, that petitioners, through their sinister machinations and
strategies and taking advantage of Conchita Cabatingans 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. 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

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 transferrred to the donee or
independently of, and not by reason of her death, she would have not expressed such proviso in the subject
deeds.
Considering that the disputed donations are donations mortis causa, the same partake of the nature of
testamentary provisions[21] 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 testators name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence of
the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the upper part of each page.

RTC: 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.

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.

ISSUE and RULING

Whether or not the deed of donation was a donation mortis causa: YES

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

In a donation mortis causa, the right of disposition is not transferred to the donee while the donor is still alive.
[12] In determining whether a donation is one of mortis causa, the following characteristics must be taken into
account:

ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of the
Clerk of Court. (n)

(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;

The deeds in question although acknowledged before a notary public of the donor and the donee, the
documents were not executed in the manner provided for under the above-quoted provisions of law.

(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

Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and
void.
[G.R. No. 106755. February 1, 2002]

(3) That the transfer should be void if the transferor should survive the transferee.[13]

APOLINARIA AUSTRIA-MAGAT, petitioner, vs. HON. COURT OF APPEALS and FLORENTINO

LUMUBOS, DOMINGO COMIA, TEODORA CARAMPOT, ERNESTO APOLO, SEGUNDA SUMPELO,
MAMERTO SUMPELO and RICARDO SUMPELO, respondents.

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 Cabatingans death.
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.

Basilisa Comerciante is a mother of five (5) children, namely, Rosario Austria, Consolacion Austria,
herein petitioner Apolinaria Austria-Magat, Leonardo (died), and one of herein respondents,
Florentino Lumubos

lifetime 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

In 1953, Basilisa bought a parcel of residential land together with the improvement thereon, known
as Lot 1, Block 1, Cavite Beach Subdivision, with an area of 150 square meters, located in Bagong
Pook, San Antonio, Cavite City.
On December 17, 1975, Basilisa executed a document designated as Kasulatan sa Kaloobpala
(Donation). It was notarized by Atty. Carlos Viniegra with acceptance clause

ISSUES and RULING

1.

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 sampu
ng aking bahay...

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. In Bonsato v. Court of Appeals, this Court
enumerated the characteristics of a donation mortis causa, to wit:

Na ang Kaloob palang ito ay magkakabisa lamang simula sa araw na akoy pumanaw sa mundo, at
sa ilalim ng kondision na:

(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;

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

Whether or not the decision of CA that the donation is inter vivos is correct: YES

(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;

On February 6, 1979, Basilisa executed a Deed of Absolute Sale of the subject house and lot in
favor of herein petitioner Apolinaria Austria-Magat for Five Thousand Pesos (P5,000.00). Her TCT
was now cancelled
Respondents (representing their deceased mother Consolacion Austria) filed an action to annul the
TCT in favor of the petitioner dismissed by the RTC

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.
CA: reverse

Deed of Sale is void and TCT in favor of petitioner is cancelled.

That the deed is a donation inter vivos is in the provision that :

(3) That the transfer should be void if the transferor should survive the transferee.
Irrevocable Character of the Donation
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 vivos despite an express provision that the donor continues to be in possession and enjoyment
of the donated property while he is alive.
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.

Ibinibigay 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 nakatirik
doon xxx.

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.

This is a clear expression of the irrevocability of the conveyance. The irrevocability of the
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 was
already with the donees even during the donors lifetime.

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

Gayon din ang nasabing titulo ay hindi mapapasangla o maipagbibili ang lupa habang may
buhay ang nasabing Basilisa Comerciante.

The prohibition to alienate does not necessarily defeat the inter 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

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

title of ownership thereto and has maintained only the right to use (jus utendi) and possess (jus possidendi)
the subject donated property.

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. 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.

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. 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.

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:

Subsequent and Contemporaneous Acts

Respondent Comia testified that in 1977, his grandmother delivered the title of the 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.

Art. 1144. The following actions must be brought within ten years from the time the right of action accrues:
(1) Upon a written contract;

Acceptance Clause
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
2.

(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]

Whether the donor validly revoked the donation when one of her daughters and donees,
Consolacion Austria, violated the prohibition to encumber the property: NO.

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.

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.

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 noncompliance with the any of the conditions set forth therein.

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.
G.R. No. L-6600

Estoppel
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.
3.

July 30, 1954

HEIRS OF JUAN BONSATO and FELIPE BONSATO, petitioners,

vs.COURT OF APPEALS and JOSEFA UTEA, ET AL., respondents

Whether or not the action for annulment of TCT on the ground of fraud and implied trust has
already prescribed.

Their complaint (for annulment and damages) charged that on the first day of December, 1949,
Domingo Bonsato, a widower, had been induced and deceived into signing two notarial deeds of
donations in favor of his brother Juan Bonsato and of his nephew Felipe Bonsato, respectively,
transferring to them several parcels of land situated in the Province of Pangasinan, both donations
having been duly accepted in the same act and documents.
Plaintiffs likewise charged that the donations were mortis causa and void for lack of the requisite
formalities.

reservation that would be unnecessary if the ownership of the donated property remained with the donor. Most
significant is the absence of stipulation that the donor could revoke the donations; on the contrary, the deeds
expressly declare them to be "irrevocable", a quality absolutely incompatible with the idea of conveyances
mortis causa where revocability is of the essence of the act, to the extent that a testator can not lawfully waive
or restrict his right of revocation

The defendants, Juan Bonsato and Felipe Bonsato, answered averring that the donations made in
their favor were voluntarily executed in consideration of past services rendered by them to the late
Domingo Bonsato; that the same were executed freely without the use of force and violence,
misrepresentation or intimidation; and prayed for the dismissal of the case and for damages in the
sum of P2000.
RTC: the deeds of donation were executed by the donor while the latter was of sound mind, without
pressure or intimidation

The deeds were of donation inter vivos without any condition making their validity or efficacy
dependent upon 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 one-half share in the three parcels of
land described therein.
CA: reverse

Donations are null and void, because they were donations mortis causa and were executed
without the testamentary formalities prescribed by law, and ordered the defendants-appellees
Bonsato to surrender the possession of the properties in litigation to the plaintiffs-appellants

That the conveyance was due to the affection of the donor for the donees and the services rendered by the
latter, is of no particular significance in determining whether the deeds Exhibits 1 and 2 constitute transfers
inter vivos or not, because a legacy may have identical motivation. Nevertheless, the existence of such
consideration corroborates the express irrevocability of the transfers and the absence of any reservation by
the donor of title to, or control over, the properties donated, and reinforces the conclusion that the act was
inter vivos
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.

ISSUE and RULING:

Whether the donation was mortis cause and thus must comply with the requisites provided by law: NO. It is
intervivos

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 mortis causa with the testamentary dispositions, thus suppressing
said donations as an independent legal concept.

ART. 620. Donations which are to become effective upon the death of the donor partake of the nature of
disposals of property by will and shall be governed by the rules established for testamentary successions.
We have insisted on this phase of the legal theory in order to emphasize that the term "donations mortis
causa" as commonly employed is merely a convenient name to designate those dispositions of property that
are void when made in the form of donations

Did the late Domingo Bonsato make donations inter vivos or dispositions post mortem in favor of the
petitioners herein? If the latter, then the documents should reveal any or all of the following characteristics:
1) Convey no title or ownership to the transferee before the death of the transferor; or, what amounts to the
same thing, that the transferor should retain the ownership (full or naked) and control of the property while
alive (Vidal vs. Posadas, 58 Phil., 108; Guzman vs. Ibea, 67 Phil., 633);

(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability
may be provided for indirectly by means of a reserved power in the donor to dispose of the properties
conveyed (Bautista vs. Sabiniano, G. R.
L-4326, November 18, 1952);
(3) That the transfer should be void if the transferor should survive the transferee.
None of these characteristics is discernible in the deeds of donation, Exhibits 1 and 2, executed by the late
Domingo Bonsato. The donor only reserved for himself, during his lifetime, the owner's share of the fruits or
produce ("de los productos mientras viva el donante tomara la parte que corresponde como dueo"), a

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 ReyesRuperto 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.
Tthe heirs of Dr. Pascual filed for the administration of his estate. Atty. Marcela Macapagal, Clerk of
Court of Branch VII was appointed special administratrix. Macapagal was replaced by Reynaldo San
Juan.
Ursula Pascual filed a motion to exclude some properties from the inventory of Pascual's estate and
to deliver the titles thereto to her. During his lifetime or on November 2, 1966, her brother executed a
"Donation Mortis Causa" in her favor covering properties which are included in the estate TC:
grant, issued an order of exclusion
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
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 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 Granted; She filed for a motion for exclusion
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.
Benjamin Reyes, private respondent filed a complaint for declaration of nullity of Transfer Certificate
of Title No. 129092 (of Ofelia) Register of Deeds of Manila and/or reconveyance of deed of title
against Ofelia Parungao and Rosario Duncil.

Parungao and Duncil, denied Reyes' assertion of ownership over the Tondo property. Filed a
complaint for recovery of possession over the Tondo property against Benjamin Reyes and his
nephew Oscar Reyes

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.

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?

RTC CA
TCT No. 129092 in the name of Ofelia Parungao null and void; issue TCT in the name of Emilio
Pascual
SC: affirm. Entry of judgment not received by the petitioners counsel; filed a motion for
reconsideration

Applying the above principles to the instant petitions, there is no doubt that the so-called DONATION MORTIS
CAUSA is really a donation inter vivos. The donation was executed by Dr. Pascual in favor of his sister Ursula
Pascual out of love and affection as well as a recognition of the personal services rendered by the donee to
the donor. The transfer of ownership over the properties donated to the donee was immediate and
independent of the death of the donor. The provision as regards the reservation of properties for the donor's
subsistence in relation to the other provisions of the deed of donation confirms the intention of the donor to
give naked ownership of the properties to the donee immediately after the execution of the deed of donation.

ISSUES and RULING

1. Whether or not the CFI has jurisdiction to exclude the properties donated to Ursula: Yes
The questioned August 1, 1976 order of the then Court of First Instance of Pampanga in S.P. Proc. No. 73-30M 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.

G.R. No. 82027 March 29, 1990

ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ROWENA
FAUSTINO-CORONA, respondents.

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

2.

Whether or not the donation mortis cause by Emilio to Usrula was actually a donation inter
vivos:
Petitioners allege that it is mortis causa; properties should revert to the estate of Emilio Pascua. 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.

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"

The probate of the two wills of the late Dolores Luchangco Vitug, who died in New York, U. S.A., on
November 10, 1980, naming private respondent Rowena Faustino-Corona executrix. In our said
decision, we upheld the appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's
estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug, pending probate.
Romarico G. Vitug filed a motion asking for authority from the probate court to sell certain shares of
stock and real properties belonging to the estate to cover allegedly his advances to the estate in the
sum of P667,731.66, plus interests, which he claimed were personal funds.
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
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

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.

It will be observed that the present case and that of Laureta above cited are similar in that in both cases the
donation was being made as a reward for services rendered and being rendered, and as a token of affection
for the donee; the phrase 'mortis causa was used; the donee to take possession of the property donated only
after the death of the donor; the donee was under obligation to defray the expenses incident to the celebration
of the anniversary of the donor's death, including church fees. The donation in both cases were duly accepted.
In said case of Laureta this Court held that the donation was in praesenti and not a gift in futuro.

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

(1) Convey no title or ownership to the transferee before the death of the transferor; or, what amounts to the
same thing, that the transferor should retain the ownership (fun or naked) and control of the property while
alive (Vidal v. Posadas, 58 Phil., 108; Guzman v. Ibea 67 Phil., 633);
(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability
may be provided for indirectly by means of a reserved power in the donor to dispose of the properties
conveyed (Bautista v. Sabiniano, G.R. No. L- 4326, November 18, 1952);

(3) That the transfer should be void if the transferor should survive the transferee.

RTC: Agreement is valid; 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
CA: the agreement constitutes a conveyance mortis cause 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.

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.

ISSUE and RULING:

Whether or not the survivorship agreement is in fact a conveyance mortis cause: No

Under Article 2010 of the Code:

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." In other words, the
bequest or device must pertain to the testator. 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., 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:

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. 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.

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.

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.

The agreement involves no modification petition of the conjugal partnership by "mere stipulation" and that it is
no "cloak" 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.

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.