THIRD DIVISION

[G.R. No. 123968. April 24, 2003.]

URSULINA GANUELAS, METODIO GANUELAS and ANTONIO

GANUELAS, petitioners, vs. HON. ROBERT T. CAWED, Judge of
the Regional Trial Court of San Fernando, La Union (Branch
29), LEOCADIA G. FLORES, FELICITACION G. AGTARAP,
CORAZON G. SIPALAY and ESTATE OF ROMANA GANUELAS
DE LA ROSA, represented by GREGORIO DELA ROSA,
Administrator, respondents.

Tañada Vivo & Tan for petitioners.

SYNOPSIS

The late Celestina Ganuelas executed a Deed of Donation of Real

Property in favor of Ursulina Ganuelas. Private respondents alleged that the
deed was a void disposition mortis causa as it lacks the legal requirement of
acknowledgment by attesting witnesses thereto before the notary public.
Petitioners, however, insist that the donation was inter vivos.

Whether the donation was inter vivos or mortis causa, the Court ruled
that, it was mortis causa. It noted that there was nothing in the Donation which
indicates that any right, title or interest in the donated properties was to be
transferred to Ursulina prior to the death of Celestina. The phrase therein "to
become effective upon the death of the DONOR" admits no other interpretation
but that Celestina intended to transfer the ownership of the properties to
Ursulina on her death, not during her lifetime. It was also provided therein that
if the donee should die before the donor, the donation shall be deemed
rescinded and of no further force and effect. The deed even contains an
attestation clause expressly confirming the donation as mortis causa.
Nevertheless, as there was failure to comply with the formalities of a will, the
Court ruled that the donation was void.

SYLLABUS

1. CIVIL LAW; MODES OF ACQUIRING OWNERSHIP; DONATION INTER

VIVOS DISTINGUISHED FROM DONATION MORTIS CAUSA. — Crucial in the
resolution of the issue whether the donation is inter vivos or mortis causa is the
determination of whether the donor intended to transfer the ownership over the
properties upon the execution of the deed. Donation inter vivos differs from
donation mortis causa in that in the former, the act is immediately operative
even if the actual execution may be deferred until the death of the donor, while
in the latter, nothing is conveyed to or acquired by the donee until the death of
the donor-testator. The following ruling of this Court in Alejandro v. Geraldez is
illuminating: If the donation is made in contemplation of the donor's death,
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 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. 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. The distinction between
a transfer inter vivos and mortis causa is important as the validity or revocation
of the donation depends upon its nature. If the donation is inter vivos, it must
be executed and accepted with the formalities prescribed by Articles 748 and
749 of the Civil Code, except when it is onerous in which case the rules on
contracts will apply. If it is mortis causa, the donation must be in the form of a
will, with all the formalities for the validity of wills, otherwise it is void and
cannot transfer ownership.
2. ID.; ID.; SUCCESSION; DONATION MORTIS CAUSA; DISTINGUISHING
CHARACTERISTICS. — The distinguishing characteristics of a donation mortis
causa are the following: 1. It conveys no title or ownership to the transferee
before the death of the transferor; or, what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of the
property while alive; 2. That before his death, the transfer should be revocable
by the transferor at will, ad nutum; but revocability may be provided for
indirectly by means of a reserved power in the donor to dispose of the
properties conveyed; 3. That the transfer should be void if the transferor should
survive the transferee. CTAIDE

3. ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. — In the donation
subject of the present case, there is nothing therein which indicates that any
right, title or interest in the donated properties was to be transferred to
Ursulina prior to the death of Celestina. The phrase "to become effective upon
the death of the DONOR" admits of no other interpretation but that Celestina
intended to transfer the ownership of the properties to Ursulina on her death,
not during her lifetime. More importantly, the provision in the deed stating that
if the donee should die before the donor, the donation shall be deemed
rescinded and of no further force and effect shows that the donation is a
postmortem disposition. As stated in a long line of cases, 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. More. The deed contains
an attestation clause expressly confirming the donation as mortis causa.
4. ID.; ID.; ID.; ID.; MOTIVATION. — To classify the donation as inter
vivos simply because it is founded on considerations of love and affection is
erroneous. That the donation was prompted by the affection of the donor for
the donee and the services rendered by the latter is of no particular
significance in determining whether the deed constitutes a transfer inter vivos
or not, because a legacy may have an identical motivation. In other words, love
and affection may also underline transfers mortis causa.
5. ID.; ID.; ID.; ID.; REQUIRES FORMALITIES OF A WILL. — As the
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 subject deed then is in the nature of a mortis causa disposition, the formalities
of a will under Article 728 of the Civil Code should have been complied with,
failing which the donation is void and produces no effect. As noted by the trial
court, the attesting witnesses failed to acknowledge the deed before the notary
public, thus violating Article 806 of the Civil Code which provides: 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. (Italics supplied) TcICEA

DECISION

CARPIO MORALES, J : p

The present petition for review under Rule 45 of the Rules of Court
assails, on a question of law, the February 22, 1996 decision 1 of the Regional
Trial Court of San Fernando, La Union, Branch 29, in Civil Case No. 3947, an
action for declaration of nullity of a deed of donation.

The facts, as culled from the records of the case, are as follows:
On April 11, 1958, Celestina Ganuelas Vda. de Valin (Celestina) executed
a Deed of Donation of Real Property 2 covering seven parcels of land in favor of
her niece Ursulina Ganuelas (Ursulina), one of herein petitioners.
The pertinent provision of the deed of donation reads, quoted verbatim :
xxx xxx xxx

That, for and in consideration of the love and affection which the
DONOR has for the DONEE, and of the faithful services the latter has
rendered in the past to the former, the said DONOR does by these
presents transfer and convey, by way of DONATION, unto the DONEE
the property above, described, to become effective upon the death of
the DONOR; but in the event that the DONEE should die before the
DONOR, the present donation shall be deemed rescinded and of no
further force and effect.
xxx xxx xxx. 3

On June 10, 1967, Celestina executed a document denominated as

Revocation of Donation 4 purporting to set aside the deed of donation. More
than a month later or on August 18, 1967, Celestina died without issue and any
surviving ascendants and siblings. cDSAEI

After Celestina's death, Ursulina had been sharing the produce of the
donated properties with private respondents Leocadia G. Flores, et al., nieces of
Celestina.

In 1982, or twenty-four years after the execution of the Deed of Donation,

Ursulina secured the corresponding tax declarations, in her name, over the
donated properties, to wit: Tax Declarations Nos. 18108, 18109, 18110, 18111,
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 18112, 18113 and 18114, and since then, she refused to give private
respondents any share in the produce of the properties despite repeated
demands.

Private respondents were thus prompted to file on May 26, 1986 with the
RTC of San Fernando, La Union a complaint 5 against Ursulina, along with
Metodio Ganuelas and Antonio Ganuelas who were alleged to be unwilling
plaintiffs. The complaint alleged that the Deed of Donation executed by
Celestina in favor of Ursulina was void for lack of acknowledgment by the
attesting witnesses thereto before notary public Atty. Henry Valmonte, and the
donation was a disposition mortis causa which failed to comply with the
provisions of the Civil Code regarding formalities of wills and testaments,
hence, it was void. The plaintiffs-herein private respondents thus prayed that
judgment be rendered ordering Ursulina to return to them as intestate heirs the
possession and ownership of the properties. They likewise prayed for the
cancellation of the tax declarations secured in the name of Ursulina, the
partition of the properties among the intestate heirs of Celestina, and the
rendering by Ursulina of an accounting of all the fruits of the properties since
1982 and for her to return or pay the value of their shares.

The defendants-herein petitioners alleged in their Answer 6 that the

donation in favor of Ursulina was inter vivos as contemplated under Article 729
of the Civil Code, 7 hence, the deed did not have to comply with the
requirements for the execution of a valid will; the Revocation of Donation is null
and void as the ground mentioned therein is not among those provided by law
to be the basis thereof; and at any rate, the revocation could only be legally
enforced upon filing of the appropriate complaint in court within the
prescriptive period provided by law, which period had, at the time the
complaint was filed, already lapsed.

By Decision of February 22, 1996, the trial court, holding that the
provision in the Deed of Donation that in the event that the DONEE should
predecease the DONOR, the "donation shall be deemed rescinded and of no
further force and effect" is an explicit indication that the deed is a donation
mortis causa, 8 found for the plaintiffs-herein private respondents, thus:
WHEREFORE the Court renders judgment declaring null and void
the Deed of Donation of Real Property executed by Celestina Ganuelas,
and orders the partition of the estate of Celestina among the intestate
heirs.

SO ORDERED. 9

The trial court also held that the absence of a reservation clause in the
deed implied that Celestina retained complete dominion over her properties,
thus supporting the conclusion that the donation is mortis causa, 10 and that
while the deed contained an attestation clause and an acknowledgment
showing the intent of the donor to effect a postmortem disposition, the
acknowledgment was defective as only the donor and donee appear to have
acknowledged the deed before the notary public, thereby rendering the entire
document void. 11
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 Lastly, the trial court held that the subsequent execution by Celestina of
the Revocation of Donation showed that the donor intended the revocability of
the donation ad nutum, thus sustaining its finding that the conveyance was
mortis causa. 12
On herein petitioners' argument that the Revocation of Donation was void
as the ground mentioned therein is not one of those allowed by law to be a
basis for revocation, the trial court held that the legal grounds for such
revocation as provided under the Civil Code arise only in cases of donations
inter vivos, but not in donations mortis causa which are revocable at will during
the lifetime of the donor. The trial court held, in any event, that given the
nullity of the disposition mortis causa in view of a failure to comply with the
formalities required therefor, the Deed of Revocation was a superfluity. 13

Hence, the instant petition for review, petitioners contending that the trial
court erred:
I. . . . WHEN IT DECLARED NULL AND VOID THE DONATION
EXECUTED BY CELESTINA GANUELAS;

II. . . . WHEN IT UPHELD THE REVOCATION OF DONATION;

III. . . . IN RENDERING ITS DECISION ADVERSE TO PETITIONER
URSULINA GANUELAS. 14

Petitioners argue that the donation contained in the deed is inter vivos as
the main consideration for its execution was the donor's affection for the donee
rather than the donor's death; 15 that the provision on the effectivity of the
donation — after the donor's death — simply meant that absolute ownership
would pertain to the donee on the donor's death; 16 and that since the donation
is inter vivos, it may be revoked only for the reasons provided in Articles 760, 17
764 18 and 765 19 of the Civil Code.
In a letter of March 16, 1992, 20 private respondent Corazon Sipalay,
reacting to this Court's January 28, 1998 Resolution requiring private
respondents "to SHOW CAUSE why they should not be disciplinarily dealt with
or held in contempt" for failure to submit the name and address of their new
counsel, explains that they are no longer interested in pursuing the case and
are "willing and ready to waive whatever rights" they have over the properties
subject of the donation. Petitioners, who were required to comment on the
letter, by Comment of October 28, 1998, 21 welcome private respondents'
gesture but pray that "for the sake of enriching jurisprudence, their [p]etition
be given due course and resolved."
The issue is thus whether the donation is inter vivos or mortis causa.

Crucial in the resolution of the issue is the determination of whether the

donor intended to transfer the ownership over the properties upon the
execution of the deed. 22
Donation inter vivosdiffers from donation mortis causa in that in the
former, the act is immediately operative even if the actual execution may be
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 deferred until the death of the donor, while in the latter, nothing is conveyed to
or acquired by the donee until the death of the donor-testator. 23 The following
ruling of this Court in Alejandro v. Geraldez is illuminating: 24
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.
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.

The distinction between a transfer inter vivos and mortis causa is

important as the validity or revocation of the donation depends upon its nature.
If the donation is inter vivos, it must be executed and accepted with the
formalities prescribed by Articles 748 25 and 749 26 of the Civil Code, except
when it is onerous in which case the rules on contracts will apply. If it is mortis
causa, the donation must be in the form of a will, with all the formalities for the
validity of wills, otherwise it is void and cannot transfer ownership. 27

The distinguishing characteristics of a donation mortis causa are the

following:
1. It conveys no title or ownership to the transferee before
the death of the transferor; or, what amounts to the same thing, that
the transferor should retain the ownership (full or naked) and control of
the property while alive;
2. That before his death, the transfer should be revocable by
the transferor at will, ad nutum; but revocability may be provided for
indirectly by means of a reserved power in the donor to dispose of the
properties conveyed;

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

survive the transferee. 28

In the donation subject of the present case, there is nothing therein which
indicates that any right, title or interest in the donated properties was to be
transferred to Ursulina prior to the death of Celestina. CTSDAI

The phrase "to become effective upon the death of the DONOR" admits of
no other interpretation but that Celestina intended to transfer the ownership of
the properties to Ursulina on her death, not during her lifetime. 29
More importantly, the provision in the deed stating that if the donee
should die before the donor, the donation shall be deemed rescinded and of no
further force and effect shows that the donation is a postmortem disposition.
As stated in a long line of cases, one of the decisive characteristics of a
donation mortis causa is that the transfer should be considered void if the
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 donor should survive the donee. 30

More. The deed contains an attestation clause expressly confirming the

donation as mortis causa:
SIGNED by the above-named donor, Celestina Ganuelas, at the
foot of this deed of donation mortis causa, consisting of two (2) pages
and on the left margin of each and every page thereof in the joint
presence of all of us who at her request and in her presence and that
of each other have in like manner subscribed our names as witnesses.
31 (Emphasis supplied)

To classify the donation as inter vivos simply because it is founded on

considerations of love and affection is erroneous. That the donation was
prompted by the affection of the donor for the donee and the services rendered
by the latter is of no particular significance in determining whether the deed
constitutes a transfer inter vivos or not, because a legacy may have an
identical motivation. 32 In other words, love and affection may also underline
transfers mortis causa. 33

I n Maglasang v. Heirs of Cabatingan, 34 the deeds of donation contained

provisions almost identical to those found in the deed subject of the present
case:
That for and in consideration of the love and affection of the
DONOR for the DONEE, . . . 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. (Emphasis
supplied)

In that case, this Court held that the donations were mortis causa, for the
above-quoted provision conclusively establishes the donor's intention to
transfer the ownership and possession of the donated property to the donee
only after the former's death. Like in the present case, the deeds therein did
not contain any clear provision that purports to pass proprietary rights to the
donee prior to the donor's death. CcTIDH

As the subject deed then is in the nature of amortis causa disposition, the
formalities of a will under Article 728 of the Civil Code should have been
complied with, failing which the donation is void and produces no effect. 35

As noted by the trial court, the attesting witnesses failed to acknowledge

the deed before the notary public, thus violating Article 806 of the Civil Code
which provides:
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. (Emphasis supplied)
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 The trial court did not thus commit any reversible error in declaring the
Deed of Donation to be mortis causa.
WHEREFORE, the petition is hereby DENIED for lack of merit. STECAc

SO ORDERED.
Panganiban, Sandoval-Gutierrez and Corona, JJ., concur.
Puno, J., took no part. Knows one of the parties.

Footnotes
1. Rollo at 39-51.
2. Exhibit "A", Records at 36-37.
3. Id. at 37.
4. Exhibit "B", Records at 38.

5. Records at 1-11.
6. Id. at 62-67, 82-87.
7. 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.
8. Id at 48.
9. Rollo at 13.
10. Ibid.
11. Id. at 50.
12. Id. at 49.
13. Id. at 50.
14. Id. at 18-19.
15. Id. at 20.
16. Id. at 31.
17. Art. 760. Every donation inter vivos, made by a person having no
children or descendants, legitimate or legitimated by subsequent marriage,
or illegitimate, may be revoked or reduced as provided in the next article, by
the happening of any of these events:
(1) If the donor, after the donation, should have legitimate or
legitimated or illegitimate children, even though they be posthumous;
(2) If the child of the donor, whom the latter believed to be dead when
he made the donation, should turn out to be living;
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 (3) If the donor should subsequently adopt a minor child.
18. Art. 764. The donation shall be revoked at the instance of the donor,
when the donee fails to comply with any of the conditions which the former
imposed upon the latter.
In this case, the property donated shall be returned to the donor, the
alienations made by the donee and the mortgages imposed thereon by him
being void, with the limitations established, with regard to third persons, by
the Mortgage Law and the Land Registration laws.
This action shall prescribe after four years from the noncompliance with
the condition, may be transmitted to the heirs of the donor, and may be
exercised against the donee's heirs.
19. Art. 765. The donation may also be revoked at the instance of the
donor, by reason of ingratitude in the following cases:
(1) If the donee should commit some offense against the person, the
honor or the property of the donor, or of his wife or children under his
parental authority;
(2) If the donee imputes to the donor any criminal offense, or any act
involving moral turpitude, even though he should prove it, unless the crime
or the act has been committed against the donee himself, his wife or children
under his authority;
(3) If he unduly refuses him support when the donee is legally or
morally bound to give support to the donor.
20. Rollo at 90.
21. Id. at 97.
22. Gestopa v. Court of Appeals , 342 SCRA 105, 110 (2000) (citation omitted).
23. Puig v. Peñaflorida, 15 SCRA 276, 282 (1965) (citation omitted).
24. 78 SCRA 245, 253, citations omitted (1977).
25. Art. 748. The donation of a movable may be made orally or in writing.
An oral donation requires the simultaneous delivery of the thing or of the
document representing the right donated.
If the value of the personal property donated exceeds five thousand pesos,
the donation and the acceptance shall be made in writing. Otherwise, the
donation shall be void.

26. Art. 749. In order that the donation of an immovable may be valid, it
must be made in a public document, specifying therein the property donated
and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a
separate public document, but it shall not take effect unless it is done during
the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be
notified thereof in an authentic form, and this step shall be noted in both
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 instruments.
27. Tolentino, Commentaries and Jurisprudence on the Civil Code of the
Philippines; Vol. II, 1998 ed. at 538.
28. Austria-Magat v. Court of Appeals, G.R. No. 106755, February 1, 2002
(citation omitted).
29. Maglasang v. Heirs of Cabatingan, G.R. No. 131953, June 5, 2002.
30. Bonsato v. Court of Appeals, 95 Phil. 482, 487 (1954); Alejandro v.
Geraldez, 78 SCRA 245, 255 (1977); Reyes v. Mosqueda , 187 SCRA 661, 671
(1990); Austria-Magat v. Court of Appeals, G.R. No. 106755, February 1,
2002; Maglasang v. Heirs of Cabatingan, G.R. No. 131953, June 5, 2002.
31. Exhibit "A", Records at 37.

32. Bonsato v. Court of Appeals, 95 Phil. 482, 488 (1954).

33. Alejandro v. Geraldez, 78 SCRA 245, 256 (1977).
34. G.R. No. 131953, June 5, 2002.
35. National Treasurer v. Vda. de Meimban, 131 SCRA 264, 270 (1984); Puig v.
Peñaflorida, 15 SCRA 276, 287 (1965).

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