G.R. No.

187056 September 20, 2010

JARABINI G. DEL ROSARIO, Petitioner,

DECISION

ABAD, J.:

This case pertains to a gift, otherwise denominated as a donation mortis causa, which in reality is a
donation inter vivos made effective upon its execution by the donors and acceptance thereof by the
donees, and immediately transmitting ownership of the donated property to the latter, thus precluding
a subsequent assignment thereof by one of the donors.

The Facts and the Case

On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a document entitled
"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, Manila2 in equal shares. The deed of donation reads:

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

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

It is further our will that this DONATION MORTIS CAUSA shall not in any way affect any other
distribution of other properties belonging to any of us donors whether testate or intestate and where
ever situated.

It is our further will that any one surviving spouse reserves the right, ownership, possession and
administration of this property herein donated and accepted and this Disposition and Donation shall be
operative and effective upon the death of the DONORS.3

Although denominated as a donation mortis causa, which in law is the equivalent of a will, the deed
had no attestation clause and was witnessed by only two persons. The named donees, however,
signified their acceptance of the donation on the face of the document.

Guadalupe, the donor wife, died in September 1968. A few months later or on December 19, 1968,
Leopoldo, the donor husband, executed a deed of assignment of his rights and interests in subject
property to their daughter Asuncion. Leopoldo died in June 1972.

In 1998 Jarabini filed a "petition for the probate of the August 27, 1968 deed of donation mortis causa"
before the Regional Trial Court (RTC) of Manila in Sp. Proc. 98-90589.4 Asuncion opposed the petition,
invoking his father Leopoldo’s assignment of his rights and interests in the property to her.

After trial, the RTC rendered a decision dated June 20, 2003,5 finding that the donation was in fact one
made inter vivos, the donors’ intention being to transfer title over the property to the donees during the
donors’ lifetime, given its irrevocability. Consequently, said the RTC, Leopoldo’s subsequent
assignment of his rights and interest in the property was void since he had nothing to assign. The RTC
thus directed the registration of the property in the name of the donees in equal shares.6

On Asuncion’s appeal to the Court of Appeals (CA), the latter rendered a decision on December 23,
2008,7 reversing that of the RTC. The CA held that Jarabini cannot, through her petition for the probate
of the deed of donation mortis causa, collaterally attack Leopoldo’s deed of assignment in Asuncion’s
favor. The CA further held that, since no proceeding exists for the allowance of what Jarabini claimed
was actually a donation inter vivos, the RTC erred in deciding the case the way it did. Finally, the CA
held that the donation, being one given mortis causa, did not comply with the requirements of a notarial
will,8 rendering the same void. Following the CA’s denial of Jarabini’s motion for reconsideration,9 she
filed the present petition with this Court.

Issue Presented

The key issue in this case is whether or not the spouses Leopoldo and Guadalupe’s donation to
Asuncion, Emiliano, and Jarabini was a donation mortis causa, as it was denominated, or in fact a
donation inter vivos.

The Court’s Ruling

That the document in question in this case was captioned "Donation Mortis Causa" is not controlling.
This Court has held that, if a donation by its terms is inter vivos, this character is not altered by the fact
that the donor styles it mortis causa.10

In Austria-Magat v. Court of Appeals,11 the Court held that "irrevocability" is a quality absolutely
incompatible with the idea of conveyances mortis causa, where "revocability" is precisely the essence
of the act. A donation mortis causa has the following characteristics:

1. It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts
to the same thing, that the transferor should retain the ownership (full or naked) and control of the
property while alive;

2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the
properties conveyed; and

3. That the transfer should be void if the transferor should survive the transferee.12 (Underscoring
supplied)

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.

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

Notably, the three donees signed their acceptance of the donation, which acceptance the deed
required.14 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.1awphi1 Donations mortis causa,
being in the form of a will, need not be accepted by the donee during the donor’s lifetime.15

Finally, as Justice J. B. L. Reyes said in Puig v. Peñaflorida,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
donee’s 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, Leopoldo’s subsequent
assignment of his rights and interests in the property to Asuncion should be regarded as void for, by
then, he had no more rights to assign. He could not give what he no longer had. Nemo dat quod non
habet.18
The trial court cannot be faulted for passing upon, in a petition for probate of what was initially supposed
to be a donation mortis causa, the validity of the document as a donation inter vivos and the nullity of
one of the donor’s subsequent assignment of his rights and interests in the property. The Court has
held before that the rule on probate is not inflexible and absolute.19 Moreover, in opposing the petition
for probate and in putting the validity of the deed of assignment squarely in issue, Asuncion or those
who substituted her may not now claim that the trial court improperly allowed a collateral attack on such
assignment.

WHEREFORE, the Court GRANTS the petition, SETS ASIDE the assailed December 23, 2008
Decision and March 6, 2009 Resolution of the Court of Appeals in CA-G.R. CV 80549, and
REINSTATES in toto the June 20, 2003 Decision of the Regional Trial Court of Manila, Branch 19, in
Sp. Proc. 98-90589.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

DIOSDADO M. PERALTA
Associate Justice LUCAS P. BERSAMIN
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice

ATT E S TATI O N

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

C E RTIF ICATIO N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes

* Designated as additional member in lieu of Associate Justice Jose Catral Mendoza, per Special Order
886 dated September 1, 2010.

** Designated as additional member in lieu of Associate Justice Antonio Eduardo B. Nachura, per
Special Order 894 dated September 20, 2010.

1 Rollo, p. 101.

2 Covered by Transfer Certificate of Title (TCT) 101873.

3 Supra note 1.
4 "In the Matter of the Petition for the Allowance of the Donation Mortis Causa of Leopoldo Gonzales.
Jarabini del Rosario, Petitioner."

5 Rollo, pp. 125-128.

6 Id. at 128.

7 Id. at 54-64; penned by Associate Justice Apolinario D. Bruselas, Jr. with the concurrence of Associate
Justices Bienvenido L. Reyes and Mariflor P. Punzalan Castillo.

8 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.

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed
and signed the will and all the pages thereof in the presence of the testator and of one another.

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