TEODORICO ALEJANDRO, IRENEO POLICARPIO, VIRGINIA ALEJANDRO, MARIA ALEJANDRO, SALUD ALEJANDRO, EMILIA ALEJANDRO, FLORENCIO ALEJANDRO AND DIONISIA ALEJANDRO, PETITIONERS, VS. HON.…

This is a case about donations inter vivos and mortis
causa.  The bone of contention is
Lot No. 2502 of the Lolomboy Friar Lands Estate with an area of 5,678 square
meters, situated in Sta. Maria, Bulacan and covered by Transfer Certificate of
Title No. 7336.  The facts are as
follows:

On January 20, 1949 the spouses Gabino (Gavino) Diaz and Severa
Mendoza, their daughter-in-law Regina Fernando, and their three children,
Olimpia Diaz, Angel Diaz and Andrea Diaz, executed a deed of donation covering
eight lots of the Lolomboy Friar Lands Estate, owned by the Diaz spouses,
located at Barrio Parada, Sta. Maria, Bulacan. 
The deed reads as follows:

“‘KASULATAN NG
PAGKAKALOOB’
(A DEED OF DONATION)

“ALAMIN NG LAHAT NG MAKATUTUNGHAY
NITO:

“Ang pagkakaloob (donation) na ito, ginawa at pinagtibay dito
sa municipio ng Sta. Maria, lalawigan ng Bulacan, Pilipinas, ngayong ika 20 ng
Enero, 1949, ng magasawang GABINO DIAZ at SEVERA MENDOZA, filipinos, may mga
sapat na gulang, naninirahan sa nayon ng Parada, Sta. Maria, Bulacan, na dito’y
kinikilalang NAGKALOOB (DONORS), sa kapakanan nila REGINA FERNANDO, filipina,
may sapat na gulang, viuda; OLIMPIA DIAZ, filipina, may sapat na gulang, kasal
kay Teodorico Alejandro, ANGEL DIAZ, filipino, may sapat na gulang, kasal kay
Catalina Marcelo, at ANDREA DIAZ, filipina, may sapat na gulang, kasal kay
Perfecto Marcelo, mga naninirahan sa nayon ng Parada, Sta. Maria, Bulacan, na
dito’y kinikilalang PINAGKALOOBAN (DONEES).

P A G P A P A T U N A Y :

“Na, ang Nagkaloob (DONORS) ay siyang mayari, at kamayari at
namomosision sa kasalukuyan ng mga parcelang lupa
kasama ang mga kagalingan na nasa lugar ng Parada, Sta. Maria, Bulacan,
mapagkikilala sa paraang mga sumusunod (description and statement as to
registration are omitted):

1.     
TCT No. 7336, Lot
No. 2502, 5,678 square meters.

2.     
TCT No. 10998, Lot No. 2485, 640
square meters.

3.     
TCT No. 10840, Lot No. 2377,
16,600 square meters.

4.     
TCT No. 10997, Lot No. 2448,
12,478 square meters.

5.     
TCT No. 2051, Lot
No. 4168, 1,522 square meters.

6.     
TCT No. 17960, Lot No. 2522, 3,418
square meters.

7.     
TCT No. 17961, Lot No. 2521, 715
square meters.

8.     
TCT No. 21453, Lot No. 2634, 8,162
square meters.

“Na dahil at alang-alang sa pagmamahal at masuyong pagtingin
na taglay ng NAG KAKALOOB (DONORS) sa Pinagkakalooban (DONEES) gayun din sa
tapat at mahalagang paglilingkod noong mga lumipas na panahon na ginawa ng huli
sa una, ang nabanggit na nagkakaloob sa pamamagitan ng kasulatang ito ng
pagkakaloob (Donation) ay buong pusong inililipat at lubos na ibinibigay sa
nasabing pinagkakalooban ang lupang binabanggit at makikilala sa unahan nito,
laya sa ano mang sagutin at pagkakautang, katulad nito:

“(a) – Na ang
lupang sinasaysay sa Lote No. 2502 o Titulo No. 7336, (No. 1) sa unahan nito ay
hinati sa dalawang parte ang unang parte (1/2) na nasa bandang Kanluran (West)
ay ipinagkakaloob ng magasawang Gabino Diaz at Severa Mendoza sa kanilang anak
na si Angel Diaz, kasal kay Catalina Marcelo; at ang ikalawang parte (1/2) na
nasa bandang silangan (East) ay ipinagkakaloob ng magasawang Gabino Diaz at
Severa Mendoza sa kanilang anak na si Andrea Diaz, kasal kay Perfecto
Marcelo.”

(Note – Some dispositions are not reproduced verbatim but are
merely summarized because they are not involved in this case.  Paragraph (a) above is the one involved
herein).

(b) – Lot
No. 2485, TCT No. 10998, to Regina Fernando (daughter-in-law of the donors and
widow of their deceased son, Miguel Diaz) and Olimpia Diaz in equal shares.

(c) – Lot
No. 2377, TCT No. 10840, 1/3 to Angel Diaz, 1/3 to Andrea Diaz, and 1/3 “ay
inilalaan o inihahanda ng magasawang Gabino Diaz at Severa Mendoza sa kanilang sariling kapakanan o mga gastos nila”.

(d) – Lot
No. 2448, TCT No. 10997 to Olimpia Diaz “sa
condicion na pagkakalooban ni Olimpia Diaz si Crisanta de la Cruz, asawa ni
Alejandro _______ (sic) sakaling si Crisanta ay mamatay ng halagang isang daang
piso (P100), bilang gastos sa libing”.

(e) – Na ang
lupang-solar na sinasaysay sa Lote No. 4168 o Titulo No. 2051 (No. 5);
lupang-bukid na sinasaysay sa Lote No. 2522 o Titulo No. 17960 (No. 6); at
lupang-bukid na sinasaysay sa Lote No. 2521 o Titulo No. 17961 (No. 7) sa
unahan nito ay inilalaan o inihahanda ng magasawang Gabino Diaz at Severa
Mendoza sa kanilang sariling kapakanan o mga gastos nila.”

(f) – Lot No. 2643,
TCT No. 21453, to Regina Fernando and her children with the deceased Miguel
Diaz in whose name the said lot was already registered.

“Na kaming mga pinagkakalooban (DONEES) na sila Regina
Fernando, Olimpia Diaz, Angel Diaz at Andrea Diaz ay tinatanggap namin ng buong
kasiyahang loob ang pagkakaloob (Donation) na ito, at sa pamamagitan nito ay
kinikilala, pinahahalagahan, at lubos na pinasasalamatan namin ang kagandahang
loob at paglingap na ipinakita at ginawa ng nagkakaloob (Donors).

“AT SA WAKAS, ang pagkakaloob na ito (DONATION), ay
sumasailalim sa paraang mga sumusunod:

“1. Ang mga
Pinagkakalooban (Donatarios) na sila Regina Fernando, Olimpia Diaz, Angel Diaz,
at Andrea Diaz, siyang nakaaalam sa mga gastos sa pagkakasakit at sa libing ng
NAGKALOOB (DONANTE);

“2. Na ang mga Pinagkalooban (DONATARIOS) ay hindi
maaaring makapagbili sa pangatlong tao ng nasabing mga pag-aari samantalang ang
nagkaloob (Donante) ay buhay. 
Datapwa’t kung ang pagbibiling gagawin ay upang
malunasan ang mga gastos at menitencion ng Nagkaloob (Donante) samakatuwid ang
nasabing pagbibili ay matuwid;

“3. Gayun din, samantalang kaming magasawang Gabino
Diaz at Severa Mendoza ay buhay, patuloy ang aming pamamahala, karapatan, at
pagkamay-ari sa mga nasabing pag-aari na sinasaysay sa unahan nito na pag-aari
namin; ngunit sakaling kami ay bawian rig buhay ng Panginoong Dios at mamatay
na ang mga karapatan at pagkamay-ari ng bawa’t Pinagkalooban (Donatarios) sa
bawa’t pag-aari na nauukol sa bawa’t isa ay may lubos na kapangyarihan.”

“SA KATUNAYAN NG LAHAT, linagdaan namin ang kasulatang ito,
dito sa Sta. Maria, Bulacan, ngayon ika 20 ng Enero,
1949, sa patibay ng dalawang sacsing kaharap.

    
Signature                           Thumbmark  
                     Signature

          GABINO DIAZ                    SEVERA MENDOZA         REGINA
FERNANDO

  
Thumbmark                         Signature                            Signature

        OLIMPIA DIAZ                       ANGEL DIAZ                    ANDREA DIAZ

(Acknowledgment signed by Notary Celedonio
Reyes is omitted)

Gabino Diaz died in 1962. 
On October 20, 1964 Severa Mendoza and her two children, Andrea Diaz and
Angel Diaz, executed a deed of donation denominated as “Kasulatan ng
Pagbibigay na Magkakabisa Pagkamatay (Donation Mortis Causa)”
over one-half of Lot No. 2377-A, which is a portion of Lot No. 2377 of the
Lolomboy Friar Lands Estate (which in turn is item 3 or [c] in the 1949 deed of
donation already mentioned).

In that deed of donation, Severa Mendoza donated to Andrea Diaz
her one-half share in Lot 2377-A, which one-half share
is identified as Lot 2377-A-1, on condition that Andrea
Diaz would bear the funeral expenses to be incurred after the donor’s
death.  She died in 1964.

It should be noted that the other one-half share in Lot
2377-A or Lot No. 2377-A-2 was previously adjudicated to Angel Diaz because he
defrayed the funeral expenses on the occasion of the death of Gabino Diaz.

On May 12, 1970 Andrea Diaz sued her brother, Angel Diaz, in the
Court of First Instance of Bulacan, Sta. Maria Branch V for the partition of
Lots Nos. 2377-A and 2502 (Civil Case No. SM-357).  Teodorico Alejandro, the surviving spouse of
Olimpia Diaz, and their children intervened in the said case.  They claimed one-third of Lot No. 2502.  Angel Diaz alleged in his answer that he had
been occupying his share of Lot No. 2502 “for more than twenty
years”.  The intervenors claimed
that the 1949 donation was a void mortis causa disposition.

On March 15, 1971
the lower court rendered a partial decision with respect to Lot No. 2377-A.  The case was continued with respect to Lot
No. 2502 which is item No. 1 or (a) in the 1949 deed of donation.  The record does not show what happened to the
other six lots mentioned in the deed of donation.

The trial court in its decision of June 30, 1971 held that the said deed of donation was a
donation mortis causa because the ownership of the properties
donated did not pass to the donees during the donors’ lifetime but was transmitted
to the donees only “upon the death of the donors”.

However, it sustained the division of Lot
No. 2502 into two equal parts between Angel Diaz and Andrea Diaz on the theory
that the said deed of donation was effective “as an extrajudicial
partition among the parents and their children”.  Consequently, the Alejandro intervenors were
not given any share in Lot No. 2502. 
Angel Diaz and the intervenor’s were ordered to pay Andrea Diaz
“attorney’s fees of P1,000 each or a total of
P2,000″.

The Alejandro intervenors filed a motion for
reconsideration.  On July 16, 1971 the trial court denied that motion
but eliminated the attorney’s fees. 
Andrea Diaz and the Alejan­dro intervenors filed separate appeals to
this Court under Republic Act No. 5440.

Andrea Diaz contends that the 1949 deed of donation is a valid
donation inter vivos and that the trial court erred in deleting
the award for attorney’s fees.

The Alejandro intervenors contend that the said donation is mortis
causa; that they are entitled to a one-third share in Lot No. 2502, and
that the trial court erred characterizing the deed as a valid partition.  In the ultimately analysis, the appeal
involves the issue of whether the Alejandro intervenors should be awarded
one-third of Lot No. 2502, or 1,892 square meters thereof, as intestate heirs
of the Diaz spouses.

To resolve that issue, it is necessary to determine whether the
deed of donation is inter vivos or mortis causa.  A brief exposition on the nature of donation inter
vivos and mortis causa may facilitate the resolution of
that issue.  Many legal battles have been
fought on the question of whether a particular deed is an inter vivos
or mortis causa donation. 
The copious jurisprudence on that point sheds light on that vexed
question.  The Civil Code provides:

“ART. 728.  Donations
which are to take effect upon the death of the donor partake of the nature of
testamentary provisions, and shall be governed by the rules established in the
Title on Succession.  (620).

“ART. 729.  When the
donor intends that the donation shall take effect during the lifetime of the
donor, though the property shall not be delivered till after the donor’s death,
this shall be a donation inter vivos.  The fruits of the property from the time of
the acceptance of the donation, shall pertain to the
donee, unless the donor provides otherwise. 
(n)

“ART. 730.  The fixing
of an event or the imposition of a suspensive condition, which may take place
beyond the natural expectation of life of the donor, does not destroy the
nature of the act as a donation inter vivos, unless a contrary
intention appears.  (n)

“ART. 731.  When a
person donates something subject to the resolutory condition of the donor’s
survival, there is a donation inter vivos.  (n)

“ART. 732.  Donations
which are to take effect inter vivos shall be governed by the
general provisions on contracts and obligations in all that is not determined
in this Title.  (621).”

Nature of donations inter vivos and mortis causa transfers.- Before tackling the issues raised in this appeal, it is
necessary to have some familiarization with the distinctions between donations inter
vivos and mortis causa because the Code prescribes
different formalities for the two kinds of donations.  An inter vivos donation of real
property must be evidenced by a public document and should be accepted by the
donee in the same deed of donation or in a separate instrument.  In the latter case, the donor should be
notified of the acceptance in an authentic form and that step should be noted
in both instruments.  (Art. 749, Civil
Code.  As to inter vivos
donation of personal property, see art. 748).

On the other hand, a transfer mortis causa should
be embodied in a last will and testament (Art. 728, supra).  It should not be called donation mortis
causa.  It is in reality a legacy
(5 Manresa, Codigo Civil, 6th Ed.,
p. 107).  If not embodied in a valid
will, the donation is void (Narag vs. Cecilio, 109 Phil. 299; Aznar vs.
Sucilla, 102 Phil. 902; Tuason vs. Posadas, 54 Phil. 289; Serrano vs. Solomon,
105 Phil. 998, 1002).

This Court advised notaries to apprise donors of the necessity of
clearly specifying whether, notwithstanding the donation, they wish to retain
the right to control and dispose at will of the property before their death,
without the consent or intervention of the beneficiary, since the reservation
of such right would be a conclusive indication that the transfer would be
effective only at the donor’s death, and, therefore, the formalities of
testaments should be observed; while, a converso, the express waiver of
the right of free disposition would place the inter vivos
character of the donation beyond dispute (Cuevas vs. Cuevas, 98 Phil. 68, 72).

From the aforequoted articles 728 to 732, it is evident that it
is the time of effectivity (aside from the form) which distinguishes a donation
inter vivos from a donation mortis causa.  And the effectivity is determined by the time
when the full or naked ownership (dominium plenum or dominium
directum) of the donated properties is transmitted to the donees.  (See Lopez vs. Olbes, 15
Phil. 540; Gonzales and Fuster Fabra vs. Gonzales Mondragon, 35 Phil. 105).  The execution of a public instrument is a
mode of delivery or tradition (Ortiz vs. Court of Appeals, 97 Phil. 46).

If the donation is made in contemplation of the donor’s death,
meaning that the full or naked ownership of the donated properties will pass to
the donee only because of the donor’s death, then it is at that time that the
donation takes effect, and it is a donation mortis causa which
should be embodied in a last will and testament (Bonsato vs. Court of Appeals,
95 Phil. 481).

But if the donation takes effect during the donor’s lifetime or
independently of the donor’s death, meaning that the full or naked ownership (nuda
proprietas) of the donated properties passes to the donee during the
donor’s lifetime, not by reason of his death but because of the deed of
donation, then the donation is inter vivos (Castro vs. Court of
Appeals, L-20122, April 28, 1969, 27 SCRA 1076).

The effectivity of the donation should be ascertained from the
deed of donation and the circumstances surrounding its execution.  Where, for example, it is apparent from the
document of trust that the donee’s acquisition of the property or right accrued
immediately upon the effectivity of the instrument and not upon the donor’s
death, the donation is inter vivos (Kiene vs. Collector of
Internal Revenue, 97 Phil. 352).

There used to be a prevailing notion, spawned by a study of Roman
Law, that the civil Code recognizes a donation mortis
causa as a juridical act in contraposition to a donation inter vivos.  That impression persisted because the
implications of article 620 of the Spanish Civil Code, now article 728, that
“las donaciones que hayan de producir sus efectos por muerte del donante
participan de la naturaleza de las disposiciones de ultima voluntad, y se
regirán por las reglas establecidas en el capítulo de la sucesión
testamentaria” had not been fully expounded in the law schools.  Notaries assumed that the donation mortis
causa of the Roman Law was incorporated into
the Civil Code.

As explained by Justice J. B. L. Reyes in the Bonsato
case, supra, article 620 broke away from the Roman Law
tradition and followed the French doctrine that no one may both donate and
retain.  Article 620 merged donations mortis
causa with testamentary dispositions and thus suppressed the said
donations as an independent legal concept. 
Castan Tobeñas says:

“(b) Subsisten
hoy en nuestro Derecho las donaciones ‘mortis causa’?.– De lo
que acabamos de decir se desprende que las donaciones mortis causa
han perdido en el Código civil su carácter distintivo
y su naturaleza, y hay que considerarlas hoy como
una institución suprimida, refundida en la del
legado.  x x x.

“La tesis de la desaprición de las
donaciones mortis causa en nuestro Código civil, acusada ya
precedentemente por el proyecto de 1851, puede decirse que constituye una communis
opinio entre nuestros expositores, incluso los mas recientes.  x x x.

“García Goyena, comentando dicho proyecto, decía que la
Comisión se habia adherido al acuerdo de suprimir las donaciones mortis causa,
seguido por casi todos los Códigos modernos. 
‘Las donaciones mortis causa – añadía – eran una especie
de monstruo entre los contratos y últimas voluntades; la algarabia del
Derecho romano y patrio sobre los puntos de semejanza y disparidad de
estas donaciones con los pactos y legados no podía producir sino dudas,
confusión y pleitos en los rarísimos casos que ocurriesen por la dificultad de
apreciar y fijar sus verdaderos caracteres'” (4 Derecho Civil
Español, Común y Foral, 8th Ed., 1956, pp. 182-3).

Manresa is more
explicit.  He says that “la
disposicion del articulo 620 significa, por lo tanto:  (1) que han desaparecido las llamadas antes
donaciones mortis causa, por lo que el Código no se ocupa de
ellas en absoluto; (2) que toda disposición de bienes para despues de la muerte
sigue las reglas establecidas para la sucesión testamentaria” (5
Comentarios al Codigo Civil Español, 6th Ed., p. 107).  Note that the Civil Code does not use the
term donation mortis causa. 
(Section 1536 of the Revised Administrative Code in imposing the
inheritance tax uses the term “gift mortis causa“).

What are the distinguishing characteristics of a donation mortis
causa?  Justice Reyes in the Bonsato
case says that in a disposition post mortem (1) the transfer
conveys no title or ownership to the transferee before the death of the
transferor, or the transferor (meaning testator) retains the ownership, full or
naked (dominio absoluto or nuda proprietas) (Vidal
vs. Posadas, 58 Phil. 108; De Guzman vs. lbea, 67 Phil. 633); (2) the trans­fer
is revocable before the transferor’s death and revocability may be provided for
indirectly by means of a reserved power in the donor to dispose of the
properties conveyed (Bautista vs. 
Sabiniano, 92 Phil. 244), and (3) the transfer would be void if the
transferor survived the transferee.

In other words, in a donation mortis causa it is
the donor’s death that determines the acquisition of, or the right to, the
property donated, and the donation is revocable at the donor’s will.  Where the donation took effect immediately
upon the donee’s acceptance thereof and it was subject to the resolutory
condition that the donation would be revoked if the donee did not give the
donor a certain quantity of rice or a sum of money, the donation is inter
vivos.  (Zapanta
vs. Posadas, Jr., 52 Phil. 557).

Justice Reyes in the subsequent case of Puig vs. Peñaflorida,
L-15939, November 29, 1965,
15 SCRA 276, synthesized the rules as follows:

1. That the Civil Code recognizes only gratuitous transfers of
property which are effected by means of donations inter
vivos or by last will and testament executed with the requisite legal formalities.

2.  That in inter vivos
donations the act is immediately operative even if the material or physical
delivery (execution) of the property may be deferred until the donor’s death,
whereas, in a testamentary disposition, nothing is conveyed to the grantee and
nothing is acquired by him until the death of the grantor-testator.  The disposition is ambulatory and not final.

3.  That in a mortis causa
disposition the conveyance or alienation should be (expressly or by necessary
implication) revocable ad nutum or at the discretion of the
grantor or so-called donor if he changes his mind (Bautista vs. Sabiniano, 92
Phil. 244).

4.  That, consequently, the
specification in the deed of the cases whereby the act may be revoked by the
donor indicates that the donation is inter vivos
and not a mortis causa disposition (Zapanta vs. Posadas,
52 Phil. 557).

5.  That the designation of
the donation as mortis causa, or a provision in the deed to the
effect that the donation is to take effect at the death of the donor”, is
not a controlling criterion because those statements are to be construed
together with the rest of the instrument in order to give effect to the real
intent of the transferor (Laureta vs. Mata and Magno, 44 Phil. 668; Concepcion
vs. Concepcion, 91 Phil. 823; Cuevas vs. Cuevas, 98 Phil. 68).

6.  That a conveyance for an
onerous consideration is governed by the rules of contracts and not by those of
donations or testaments (Carlos vs. Ramil, 20 Phil. 183; Manalo vs. De Mesa, 29
Phil. 495).

7.  That in case of doubt the
conveyance should be deemed a donation inter vivos, rather than mortis
causa, in order to avoid uncertainty as to the ownership of the property
subject of the deed.

It may be added that the fact that the donation is given in
consideration of love and affection or past or future services is not a
characteristic of donations inter vivos because transfers mortis
causa may be made also for those reasons.

There is difficulty in applying the distinctions to controversial
cases because it is not easy sometimes to ascertain when the donation takes
effect or when the full or naked title passes to the transferee.  As Manresa observes, “when the time
fixed for the commencement of the enjoyment of the property donated be at the
death of the donor, or when the suspensive condition is related to his death,
confusion might arise” (5 Codigo Civil, 6th Ed., p. 108).

The existence in the deed of donation of conflicting stipulations
as to its effectivity may generate doubt as to the donor’s intention and as to
the nature of the donation (Concepcion vs. Concepcion,
91 Phil. 823).

Where the donor declared in the deed that the conveyance was mortis
causa and forbade the registration of the deed before her death, the clear
inference is that the conveyance was not intended to produce any definitive
effect nor to pass any interest to the grantee except
after her death.  In such a case, the
grantor’s reservation of the right to dispose of the property during her
lifetime means that the transfer is not binding on her until she dies.  It does not mean that the title passed to the
grantee during her lifetime.  (Ubalde Puig vs. Magbanua Peñaflorida, L-15939, Resolution of
January 31, 1966, 16 SCRA 136).

In the following cases, the conveyance was considered a void mortis
causa transfer because it was not cast in the form of a last will and
testament as required in article 728, formerly article 620:

(a)  
Where it was stated in the deed of
donation that the donor wanted to give the donee something “to take effect
after his death” and that “this donation shall produce effect only by
and because of the death of the donor, the property herein donated to pass
title after the donor’s death” (Howard vs. Padilla, 96 Phil. 983).  In the Padilla case the donation was
regarded as mortis causa although the donated property was
delivered to the donee upon the execution of the deed and although the dona­tion
was accepted in the same deed.

(b)  
Where it was provided that the
donated properties would be given to the donees after the expiration of thirty
days from the donor’s death, the grant was made in the future tense, and the
word “inherit” was used (Cariño vs. Abaya, 70 Phil. 182).

(c)  
Where the donor has the right to
dispose of all the donated properties and the products thereof.  Such reservation is tantamount to a
reservation of the right to revoke the donation (Bautista vs. Sabiniano, 92
Phil. 244).

(d)  
Where the circumstances
surrounding the execution of the deed of donation reveal that the donation
could not have taken effect before the donor’s death and the rights to dispose
of the donated properties and to enjoy the fruits remained with the donor
during her lifetime (David vs. Sison, 76 Phil. 418).

But if the deed of donation makes an actual conveyance of the
property to the donee, subject to a life estate in the donors, the donation is inter
vivos (Guarin vs. De Vera, 100 Phil. 1100).

Articles 729, 730 and 731 have to some extent dissipated the
confusion surrounding the two kinds of donation.  The rule in article 729 is a crystallization
of the doctrine announced in decided cases.

A clear instance where the donor made an inter vivos
donation is found in De Guzman vs. lbea, 67 Phil. 633.  In that case, it was provided in the deed
that the donor donated to the donee certain properties so that the donee
“may hold the same as her own and always” and that the donee would
administer the lands donated and deliver the fruits thereof to the donor, as
long as the donor was alive, but upon the donor’s death the said fruits would
belong to the donee.  It was held that
the naked ownership was conveyed to the donee upon the execution of the deed of
donation and, therefore, the donation became effective during the donor’s
lifetime.

In Sambaan vs. Villanueva, 71 Phil. 303, the deed of donation, as
in Balaqui vs. Dongso, 53 Phil. 673, contained conflicting provisions.  It was provided in the deed that the donation
was made “en consideracion al afecto y cariño” of the donor for the
donee but that the donation “surtirá efectos después de ocurrida mi
muerte” (donor’s death).

That donation was held to be inter vivos because
death was not the consideration for the donation but rather the donor’s love
and affection for the donee.  The
stipulation that the properties would be delivered only after the donor’s death
was regarded as a mere modality of the contract which did not change its inter
vivos character.  The donor had
stated in the deed that he was donating, ceding and transferring the donated
properties to the donee.  (See Joya vs.
Tiongco, 71 Phil. 379).

In Laureta vs. Mata and Magno, 44 Phil. 668 the deed of donation
provided that the donor was donating mortis causa certain
properties as a reward for the donee’s services to the donor and as a token of
the donor’s affection for him.  The
donation was made under the condition that “the donee cannot take
possession of the properties donated before the death of the donor”; that
the donee should cause to be held annually masses for the repose of the donor’s
soul, and that he should defray the expenses for the donor’s funeral.

It was held that the said donation was inter vivos
despite the statement in the deed that it was mortis causa.  The donation was construed as a conveyance in
praesenti (“a present grant of a future interest”) because it
conveyed to the donee the title to the properties donated “subject only to
the life estate of the donor” and because the conveyance took effect upon
the making and delivery of the deed.  The
acceptance of the donation was a circumstance which was taken into account in
characterizing the donation as inter vivos.

In Balaqui vs. Dongso, supra, the deed of donation
involved was more confusing than that found in the Laureta case.  In the Balaqui case, it was provided
in the deed that the donation was made in consideration of the services
rendered to the donor by the donee; that “title” to the donated
properties would not pass to the donee during the donor’s lifetime, and that it
would be only upon the donor’s death that the donee would become the “true
owner” of the donated properties. 
However, there was the stipulation that that the donor bound herself to
answer to the donee for the property donated and that she warranted that nobody
would disturb or question the donee’s right.

Notwithstanding the provision in the deed that it was only after
the donor’s death when the “title” to the donated properties would
pass to the donee and when the donee would become the owner thereof, it was
held in the Balaqui case that the donation was inter vivos.

It was noted in that case that the donor, in making a warranty,
implied that the title had already been conveyed to the donee upon the
execution of the deed and that the donor merely reserved to herself the
“possession and usufruct” of the donated properties.

In Concepcion vs. Concepcion, 91 Phil. 823, it was provided in
the deed of donation, which was also styled as mortis causa, that
the donation was made in consideration of the services rendered by the donee to
the donor and of the donor’s affection for the donee; that the donor had
reserved what was necessary for his maintenance, and that the donation “ha
de producir efectos solamente por muerte de la donante”.

It was ruled that the donation was inter vivos
because the stipulation that the donation would take effect only after the
donor’s death “simply meant that the possession and enjoyment, of the
fruits of the properties donated should take effect only after the donor’s
death and not before”.

Resolution of the instant case.-
The donation in the instant case is inter vivos because it took
effect during the lifetime of the donors. 
It was already effective during the donors’ lifetime, or immediately
after the execution of the deed, as shown by the granting, habendum and
warranty clause of the deed (quoted below).

In that clause it is stated that, in consideration of the
affection and esteem of the donors for the donees and the valuable services
rendered by the donees to the donors, the latter, by means of the deed of
donation, wholeheartedly transfer and unconditionally give to the donees the
lots mentioned and des­cribed in the early part of the deed, free from any kind
of liens and debts:

“Na dahil at alang-alang sa pagmamahal at masuyong pagtingin
na taglay ng NAGKAKALOOB (DONORS) sa Pinagkakalooban (DONEES) gayun din sa
tapat at mahalagang paglilingkod noong mga lumipas na panahon na ginawa ng huli
sa una, ang nabanggit na nagkakaloob sa pamagitan ng kasulatang ito ng
pagkakaloob (Donation) ay buong pusong inililipat at lubos na ibinibigay sa
nasabing pinagkakalooban ang lupang binabanggit at makikilala sa unahan nito,
laya sa ano mang sagutin at pagkakautang, katulad nito:”

Following the above-quoted granting, habendum and warranty
clause is the donors’ declaration that they donate (ipinagkakaloob) Lot
No. 2502, the property in litigation, in equal shares to their children Angel
Diaz and Andrea Diaz, the western part to Angel and the eastern part to Andrea.

The acceptance clause is another indication that the donation is inter
vivos.  Donations mortis causa,
being in the form of a will, are never accepted by the donees during the
donors’ lifetime.  Acceptance is a
requirement for donations inter vivos.

In the acceptance clause herein, the donees declare that they
accept the donation to their entire satisfaction and, by means of the deed,
they acknowledge and give importance to the generosity and solicitude shown by
the donors and sincerely thank them.

In the reddendum or reservation clause of the deed of
donation, it is stipulated that the donees would shoulder the expenses for the
illness and the funeral of the donors and that the donees cannot sell to a
third person the donated properties during the donors’ lifetime but if the sale
is neces­sary to defray the expenses and support of the donors, then the sale
is valid.

The limited right to dispose of the donated lots, which the deed
gives to the donees, implies that ownership had passed to them by means of the
donation and that, therefore, the dona­tion was already effective during the
donors’ lifetime.  That is a characteristic
of a donation inter vivos.

However, paragraph 3 of the reddendum or reservation
clause provides that “also, while we, the spouses Gabino Diaz and Severa
Mendoza, are alive, our administration, right, and ownership of the lots mentioned
earlier as our properties shall continue but, upon our death, the right and
ownership of the donees to each of the properties allocated to each of them
shall be fully effective”.  The
foregoing is the translation of the last paragraph of the deed of donation
which reads:

“(3) Gayun din,
samantalang kaming magasawang Gabino Diaz at Severa Mendoza ay buhay, patuloy
ang aming pamamahala, karapatan, at pagkamayari sa mga nasabing pagaari na
sinasayay sa unahan nito na pagaari namin; ngunit saka­ling kami ay bawian ng
buhay ng Panginoong Dios at mamatay na, ang mga karapatan at pagkamayari ng
bawa’t pinagkalooban (Donatarios) sa bawa’t pagaari nauukol sa bawa’t isa ay
may lubos na kapangyarihan.”

Evidently, the draftsman of the deed did not realize the discordant
and ambivalent provisions thereof.  The habendum
clause indicates the transfer of the ownership over the donated properties to
the donees upon the execution of the deed. 
But the reddendum clause seems to imply that the ownership was
retained by the donors and would be transferred to the donees only after their
death.

We have reflected on the meaning of the said contradictory
clauses.  All the provisions of the deed,
like those of a statute and testament, should be construed together in order to
ascertain the intention of the parties. 
That task would have been rendered easier if the record shows the
conduct of the donors and the donees after the execution of the deed of
donation.

But the record is silent on that point, except for the allegation
of Angel Diaz in his answer (already mentioned) that he received his share of
the disputed lot long before the donors’ death and that he had been
“openly and adversely occupying” his share “for more than twenty
years”.  (Andrea Diaz on page 17 of
her brief in L-33849 states that the donees took possession of their respective
shares as stipulated in the deed of donation. 
Pages 3, 4, 18 and 19, tsn March, 1971).

Our conclusion is that the aforequoted paragraph 3 of the reddendum
or reservation clause refers to the beneficial ownership (dominium
utile) and not to the naked title and that what the donors reserved to themselves, by means of that clause, was the management of
the donated lots and the fruits thereof. 
But, notwithstanding that reservation, the donation, as shown in the habendum
clause, was already effective during their lifetime and was not made in
contemplation of their death because the deed transferred to the donees the
naked ownership of the donated properties.

That conclusion is further supported by the fact that in the deed
of donation, out of the eight lots owned by the donors, only five were
donated.  Three lots, Lots Nos. 4168,
2522 and 2521 were superfluously reserved for the spouses or donors in addition
to one-third of Lot No. 2377.  If the
deed of donation in question was intended to be a mortis causa
disposition, then all the eight lots would have been donated or devised to the
three children and daughter-in-law of the donors.

The trial court’s conclusion that the said deed of donation, although
void as a donation inter vivos, is valid “as an
extrajudicial partition among the parents and their children” is not
well-taken.  Article 1080 of the Civil
Code provides that “should a person make a partition of his estate
by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of the compulsory
heirs.”

We have already observed that the said donation was not a
partition of the entire estate of the Diaz spouses since, actually, only five
of the eight lots, constituting their estate, were partitioned.  Hence, that partition is not the one
contemplated in article 1080.

There is another circumstance which strengthens the view that the
1949 deed of donation in question took effect during the donors’
lifetime.  It may be noted that in that
deed Lot No. 2377 (items 3 and [c]) was divided into
three equal parts:  one-third was donated
to Andrea Diaz and one-third to Angel Diaz. 
The remaining one-third was reserved and retained by the donors, the spouses
Gabino Diaz and Severa Mendoza, for their support.  That reserved one-third portion came to be
known as Lot No. 2377-A.

In 1964, or after the death of Gabino Diaz, his surviving spouse
Severa Mendoza executed a donation mortis causa wherein she conveyed
to her daughter, Andrea Diaz (plaintiff-appellant herein), her one-half share
in Lot No. 2377-A, which one-half share is known as Lot No. 2377-A-1, the other
half or Lot No. 2377-A-2 having been already conveyed to Angel Diaz.

That disposition of Lot No. 2377-A-2 clearly implies that the
conveyance in the 1949 deed of donation as to Lot No. 2377 took effect during
the lifetime of the donors, Gabino Diaz and Severa Mendoza, and proves that the
1949 donation was inter vivos.

The instant case has a close similarity to the prewar cases
already cited and to three post-liberation cases.  In the Bonsato case, the deed of
donation also contained contradictory dispositions which rendered the deed
susceptible of being cons­trued as a donation inter vivos or as a donation
mortis causa.

It was stated in one part of the deed that the donor was
executing “una donacion perfecta e irrevocable consumada” in favor of
the donee in consideration of his past services to the donor; that at the time
of the execution of the deed, the donor “ha entregado” to the donee
“dichos terrenos donados”; that while the donor was alive, he would
receive the share of the fruits corresponding to the owner; and “que en
vista de la vejez del donante, el donatario Felipe Bonsato tomará posesion inme­diatamente
de dichos terrenos a su favor”. 
These provisions indicate that the donation in question was inter
vivos.

However, in the last clause of the deed in the Bonsato
case (as in the instant case), it was provided “que después de la muerte
del donante entrará en vigor dicha donacion y el donatario Felipe Bonsato
tendrá todos los derechos de dichos terrenos en concepto de dueño absoluto de
la propiedad libre de toda responsabilidad y gravamen y pueda ejercitar su
derecho que crea conveniente”.  These
provisions would seem to show that the donation was mortis causa.

Nevertheless, it was held in the Bonsato case that the
donation was inter vivos because (1) the ownership of the things
donated passed to the donee; (2) it was not provided that the transfer was
revocable before the donor’s death, and (3) it was not stated that the transfer
would be void if the transferor should survive the transferee.

It was further held in the Bonsato case that the
stipulation “que después de la muerte del donante entrará en vigor dicha
donacion”, should be interpreted together with the prior provi­sion
regarding its irrevocable and consummated character, and that would mean that
the charge or condition as to the donor’s share of the fruits would be
terminated upon the donor’s death.

The Puig case, supra, is even more doubtful and
controversial than the instant case.  In the Puig case, the donor, Carmen Ubalde Vda. de Parcon, in a deed entitled “Donacion Mortis Causa”
dated November 24, 1948
“cede y transfiere, en concepto de donacion mortis causa“,
to the donee, Estela Magbanua Peñaflorida, three parcels of land in
consideration of the donee’s past services and the donor’s love and affection
for the latter.

It was stipulated in the deed that the donor could
alienate or mortgage the donated properties “cuando y si necesita fondos
para satisfacer sus propias necesidades, sin que para ello tenga que intervenir
la Donataria, pues su consentimiento se sobre entiende aqui, parte de que la
donacion que aqui se hace es mortis causa, es decir que la
donacion surtirá sus efectos a la muerte de la donante”.  It was repeated in another clause of the deed
“que la cesión y transferencia aqui provista surtirá efecto al fallecer la
Donante”.

It was further stipulated that the donee would defray the medical
and funeral expenses of the donor unless the donor had funds in the bank or
“haya cosecho levantada o recogida, en cual caso dichos recursos
responderán portales gastos a disposicion y dirección de la donataria”.  Another provision of the deed was that it
would be registered only after the donor’s death.  In the same deed the donee accepted the
donation.

In the Puig case the donor in another deed entitled
“Escritura de Donacion Mortis Causa” dated December 28,
1949 donated to the same donee, Estela Magbanua Peñaflorida, three
parcels of land “en concepto de una donacion mortis cause”
in consideration of past services.  It
was provided in the deed “que antes de su muerte, la donante, podrá
enajenar vender, traspasar o hipotecar a cualesquiera persona o entidades los
bienes aqui donados a favor de la donataria en concepto de una donacion mortis
causa“.  The donee accepted
the donation in the same deed.

After the donor’s death both deeds were recorded in the registry
of deeds.  In the donor’s will dated March 26, 1951, which was duly
probated, the donation of a parcel of land in the second deed of donation was
confirmed.

Under these facts, it was held that the 1948 deed of
donation mortis causa was inter vivos in character
in spite of repeated expressions therein that it was a mortis causa
donation and that it would take effect only upon the donor’s death.  Those expressions were not regarded as
controlling because they were contradicted by the provisions that the donee would
defray the donor’s expenses even if not connected with her illness and that the
donee’s husband would assume her obligations under the deed, should the donee
predecease the donor.  Moreover, the
donor did not reserve in the deed the absolute right to revoke the donation.

But the 1949 deed of donation was declared void because it
was a true conveyance mortis causa which was not embodied in a
last will and testament.  The mortis
causa character of the disposition is shown by the donor’s reservation
of the right to alienate or encumber the donated properties to any person or
entity.

In the Cuevas case, supra, one Antonina Cuevas
executed on September 18, 1950
a notarial conveyance styled as “Donacion Mortis Cause” where she
ceded to her nephew Crispulo Cuevas a parcel of unregistered land.  Crispulo accepted the donation in the same
instrument.  Subsequently, or on May 26, 1952, the donor revoked the
donation.

The deed of donation in the Cuevas case contained the
following provisions which, as in similar cases, are susceptible of being
construed as making the conveyance an inter vivos or a mortis
causa transfer:

“Dapat maalaman ni Crispulo Cuevas na samantalang ako ay
nabubuhay, ang lupa na ipinagkakaloob ko sa kaniya ay ako pa rin ang patuloy na
mamomosecion, makapagpapatrabajo, makikinabang at ang iba pang karapatan sa
pagmamayari ay sa akin pa rin hanggang hindi ako binabawian ng buhay ng
Maykapal at ito naman ay hindi ko ñga iya-alis pagkat kung ako ay mamatay na ay
inilalaan ko sa kaniya.”

Translation

“Crispulo Cuevas should know that while I am alive, the land
which I donated to him will still be under my continued possession; I will be
the one to have it cultivated; I will enjoy its fruits and all the other rights
of ownership until Providence deprives me of life and I cannot take away the
property from him because when I die I reserve the property for him.”
(sic)

It was held that the donation was inter vivos
because the phrase “hindi ko ñga iya-alis” (“I will not take
away the property”) meant that the donor expressly renounced the right to
freely dispose of the property in favor of another person and thereby
manifested the irrevocability of the conveyance of the naked title to the
donee.  The donor retained the beneficial
ownership or dominium utile. 
Being an inter vivos donation, it could be revoked by the
donor only on the grounds specified by law. 
No such grounds exised.  The donee
was not guilty of ingratitude.

The other point to be disposed of is the matter of the claim for
attorney’s fees of Andrea Diaz against the Alejandro intervenors.

After a careful consideration of the facts and circumstances of
the case, particularly the apparent good faith of the Alejandro intervenors in
asserting a one-third interest in the disputed lot and their close relationship
to Andrea Diaz, we find that it is not proper to require them to pay attorney’s
fees (Salao vs. Salao, L-26699, March 16, 1976, 70 SCRA 65).  (Andrea Diaz did not implead Angel Diaz as a
respondent in her petition for review.)

WHEREFORE, the trial court’s amended decision is reversed
insofar as it pronounces that the deed of donation is void.  That donation is declared valid as a donation
inter vivos.

The disputed lot should be partitioned in accordance with that
deed between Andrea Diaz and Angel Diaz.

The decision is affirmed insofar as it does not require the
Alejandro intervenors to pay attorney’s fees to Andrea Diaz.  No costs.

SO ORDERED.

Fernando, (Chairman), Barredo, Concepcion, Jr., and Santos,
JJ., concur.

Antonio, J., concurs in a
separate opinion.