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G.R. No. L-57455 January 18, 1990EVELYN DE LUNA, ROSALINA DE LUNA, PRUDENCIO DELUNA, JR., WILLARD DE LUNA, ANTONIO DE LUNA, andJOSELITO DE LUNA, petitioners,vs.HON. SOFRONIO F. ABRIGO, Presiding Judge of the Court of

First Instance of Quezon, Branch IX, and LUZONIANUNIVERSITY FOUNDATION, INC., respondents.

Milberto B. Zurbano for petitioners.

Joselito E. Talabong for private respondent.

MEDIALDEA, J.:

This is a petition for review on certiorari of the Order dated July 7,1981 of respondent judge Sofronio F. Abrigo of the Court of FirstInstance of Quezon, Branch IX in Civil Case No. 8624 dismissing

the complaint of petitioners on the ground of prescription of action.

The antecedent facts are as follows:

On January 24, 1965, Prudencio de Luna donated a portion of7,500 square meters of Lot No. 3707 of the Cadastral Survey ofLucena covered by Transfer Certificate of Title No. 1-5775 to theLuzonian Colleges, Inc., (now Luzonian University Foundation,Inc., herein referred to as the foundation). The donation, embodied

in a Deed of Donation Intervivos (Annex "A" of Petition) wassubject to certain terms and conditions and provided for theautomatic reversion to the donor of the donated property in case of

violation or non-compliance (pars. 7 and 10 of Annex "A", p. 20,Rollo). The foundation failed to comply with the conditions of thedonation. On April 9, 1971, Prudencio de Luna "revived" the said

donation in favor of the foundation, in a document entitled"Revival of Donation Intervivos" (Annex "B" of Petition) subjectto terms and conditions which among others, required:xxx xxx xxx

3. That the DONEE shall construct at its own expense aChapel, a Nursery and Kindergarten School, to be named after St.Veronica, and other constructions and Accessories shall beconstructed on the land herein being donated strictly in accordance

with the plans and specifications prepared by the O.R. Quinto &Associates and made part of this donation; provided that theflooring of the Altar and parts of the Chapel shall be of granoletic

marble.

4. That the construction of the Chapel, Nursery andKindergarten School shall start immediately and must be at leastSEVENTY (70) PER CENTUM finished by the end of THREE (3)YEARS from the date hereof, however, the whole project as drawnin the plans and specifications made parts of this donation must becompleted within FIVE (5) YEARS from the date hereon, unlessextensions are granted by the DONOR in writing;

. . . . (p. 23, Rollo)

As in the original deed of donation, the "Revival of DonationIntenrivos" also provided for the automatic reversion to the donorof the donated area in case of violation of the conditions thereof,couched in the following terms:

xxx xxx xxx.11. That violation of any of the conditions herein providedshall cause the automatic reversion of the donated area to thedonor, his heirs, assigns and representatives, without the need ofexecuting any other document for that purpose and without

obligation whatever on the part of the DONOR. ( p. 24, Rollo).

The foundation, through its president, accepted the donation in thesame document, subject to all the t erms and conditions stated in thedonation (p. 24, Rollo). The donation was registered and annotatedon April 15, 1971 in the memorandum of encumbrances as Entry

No. 17939 of Transfer Certificate of Title No. T-5775 (p. 15,Rollo).

On August 3, 1971, Prudencio de Luna and the foundationexecuted a 'Deed of Segregation" (Annex "C" of Petition) wherebythe area donated which is now known as Lot No. 3707-B of

Subdivision Plan Psd-40392 was adjudicated to the foundation. Asa result, transfer certificate of title No. T-16152 was issued in thename of the foundation. The remaining portion known as Lot No.3707-A was retained by the donor. (p. 16, Rollo).

On September 23, 1980, herein petitioners, Evelyn, Rosalina,Prudencio, Jr., Willard, Antonio and Joselito, all surnamed deLuna, who claim to be the children and only heirs of the latePrudencio de Luna who died on August 18, 1980, filed a complaint

(pp. 14-17, Rollo) with the Regional Trial Court of Quezonalleging that the terms and conditions of the donation were notcomplied with by the foundation. Among others, it prayed for the

cancellation of the donation and the reversion of the donated landto the heirs. The complaint was docketed as Civil Case No. 8624.

In its answer (pp. 29-36, Rollo), respondent foundation claimedthat it had partially and substantially complied with the conditionsof the donation and that the donor has granted the foundation anindefinite extension of time to complete the construction of thechapel. It also invoked the affirmative defense of prescription ofaction and prayed for the dismissal of t he complaint.

During the pre-trial of the case, the foundation moved for apreliminary hearing of its affirmative defense of prescription of

action which was opposed by the plaintiffs. After the parties havefiled their respective written motions, oppositions and memoranda,an Order (pp., 40-43, Rollo) dated July 7, 1981 was issued

dismissing the complaint. The dispositive portion of the Orderstates:

In view of the foregoing considerations, this Court finds themotion to dismiss deemed filed by the defendant on the ground ofprescription to be well-taken and the same i s hereby GRANTED.

WHEREFORE, the instant complaint is hereby orderedDISMISSED.

No pronouncement as to costs.

SO ORDERED. (pp. 42-43, Rollo)

No motion for reconsideration was filed by petitioners.

On July 22, 1981, petitioners brought the instant petition forreview with the following assignments of error:

I. THE LOWER COURT ERRED IN HOLDING THATTHE DONEE'S CONSENT TO THE REVOCATION OF ADONATION TO BE VALID MUST BE GIVEN SUBSEQUENT

TO THE EFFECTIVITY OF THE DONATION OR VIOLATIONOF (THE) ANY OF THE CONDITIONS IMPOSED THEREIN.

II. THE LOWER COURT ERRED IN TREATING THECOMPLAINT AS ONE FOR JUDICIAL DECREE OFREVOCATION OF THE DONATION IN QUESTION AS

CONTEMPLATED IN ARTICLE 764 OF THE CIVIL CODE OFTHE PHILIPPINES AND WHICH PRESCRIBES IN FOUR (4)YEARS AND IN NOT CONSIDERING IT AS AN ACTION TOENFORCE A WRITTEN CONTRACT WHICH PRESCRIBESIN TEN (10) YEARS AS PROVIDED IN ARTICLE 1144,HENCE, THE LOWER COURT ERRED IN DISMISSING THE

COMPLAINT.

III. THE LOWER COURT ERRED IN NOTRENDERING JUDGMENT ON THE MERITS BY WAY OFJUDGMENT ON THE PLEADINGS. (pp. 1-2, Petitioner's Brief)

We gave due course to the petition on August 3, 1981 (p. 45,Rollo). After the parties' submission of their respective briefs, theCourt resolved to consider the petition submitted for decision on

January 27, 1982 (p. 62, Rollo).

The assailed order of the trial court stated that revocation (of a

donation) will be effective only either upon court judgment orupon consent of the donee as held in the case of Parks v. Provinceof Tarlac, No. 24190, July 13, 1926, 49 Phil. 143. The trial court

dismissed the claim of petitioners that the stipulation in thedonation providing for revocation in case of non-compliance ofconditions in the donation is tantamount to the consent of thedonee, opining that the consent contemplated by law should besuch consent given by the donee subsequent to the effectivity ofthe donation or violation of the conditions imposed therein. Thetrial court further held that, far from consenting to the revocation,the donee claimed that it had already substantially complied withthe conditions of the donation by introducing improvements in the

property donated valued at more than the amount of the donatedland. In view thereof, a judicial decree revoking the subjectdonation is necessary. Accordingly, under Article 764 of the New

Civil Code, actions to revoke a donation on the ground of non-compliance with any of the conditions of the donation shallprescribe in four years counted from such non-compliance. In theinstant case, the four-year period for filing the complaint forrevocation commenced on April 9, 1976 and expired on April 9,1980. Since the complaint was brought on September 23, 1980 ormore than five (5) months beyond the prescriptive period, it wasalready barred by prescription.

On the other hand, petitioners argue that Article 764 of the NewCivil Code was adopted to provide a judicial remedy in case ofnon-fulfillment of conditions when revocation of the donation has

not been agreed upon by the parties. By way of contrast, whenthere is a stipulation agreed upon by the parties providing forrevocation in case of non-compliance, no judicial action isnecessary. It is then petitioners' claim that the action filed before


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the Court of First Instance of Quezon is not one for revocation ofthe donation under Article 764 of the New Civil Code whichprescribes in four (4) years, but one to enforce a written contractwhich prescribes in ten (10) years.

The petition is impressed with merit.

From the viewpoint of motive, purpose or cause, donations may be1) simple, 2) remuneratory or 3) onerous. A simple donation is onethe cause of which is pure liberality (no strings attached). Aremuneratory donation is one where the donee gives something toreward past or future services or because of future charges or

burdens, when the value of said services, burdens or charges is lessthan the value of the donation. An onerous donation is one whichis subject to burdens, charges or future services equal (or more) invalue than that of the thing donated (Edgardo L. Paras, Civil Codeof the Philippines Annotated, 11 ed., Vol. 11, p. 726).

It is the finding of the trial court, which is not disputed by theparties, that the donation subject of this case i s one with an onerouscause. It was made subject to the burden requiring the donee toconstruct a chapel, a nursery and a kindergarten school in thedonated property within five years from execution of the deed ofdonation.

Under the old Civil Code, it is a settled rule that donations with anonerous cause are governed not by the law on donations but by the

rules on contracts, as held in the cases of Carlos v. Ramil, L-6736,September 5, 1911, 20 Phil. 183, Manalo vs. de Mesa, L-9449,February 12, 1915, 29 Phil. 495. On the matter of prescription of

actions for the revocation of onerous donation, it was held that thegeneral rules on prescription applies. (Parks v. Province of Tarlac,supra.). The same rules apply under the New Civil Code as

provided in Article 733 thereof which provides:

Art. 733. Donations with an onerous cause shall be governed bythe rules on contracts, and remuneratory donations by theprovisions of the present Title as regards that portion whichexceeds the value of the burden i mposed.

It is true that under Article 764 of the New Civil Code, actions forthe revocation of a donation must be brought within four (4) years

from the non-compliance of the conditions of the donation.However, it is Our opinion that said article does not apply toonerous donations in view of the specific provision of Article 733

providing that onerous donations are governed by the rules oncontracts.

In the light of the above, the rules on contracts and the generalrules on prescription and not the rules on donations are applicablein the case at bar.

Under Article 1306 of the New Civil Code, the parties to a contracthave the right "to establish such stipulations, clauses, terms andconditions as they may deem convenient, provided they are notcontrary to law, morals, good customs, public order or publicpolicy." Paragraph 11 of the "Revival of Donation Intervivos, has

provided that "violation of any of the conditions (herein) shallcause the automatic reversion of the donated area to the donor, hisheirs, . . ., without the need of executing any other document forthat purpose and without obligation on the part of the DONOR".

Said stipulation not being contrary to law, morals, good customs,public order or public policy, is valid and binding upon thefoundation who voluntarily consented thereto.

The validity of the stipulation in the contract providing for theautomatic reversion of the donated property to the donor upon non-

compliance cannot be doubted. It is in the nature of an agreementgranting a party the right to rescind a contract unilaterally in caseof breach, without need of going to court. Upon the happening ofthe resolutory condition of non-compliance with the conditions ofthe contract, the donation is automatically revoked without need ofa judicial declaration to that effect. In the case of University of the

Philippines v. de los Angeles, L-28602, September 29, 1970, 35SCRA 102-107, it was held:

. . . There is nothing in the law that prohibits the parties fromentering into agreement that violation of the terms of the contractwould cause cancellation thereof. even without court intervention.

In other words, it is not always necessary for the injured party toresort to court for rescission of the contract (Froilan v. Pan OrientalShipping Co., et al.,L-11897, 31 October 1964, 12 SCRA 276).

This was reiterated in the case of Angeles v. Calasanz, L-42283,March 18, 1985:

Well settled is, however, the rule that a judicial action for the

rescission of a contract is not necessary where the contractprovides that it may be revoked and cancelled for violation of anyof its terms and conditions (Lopez v. Commissioner of Customs,

37 SCRA 327, 334, and cases cited therein).

Resort to judicial action for rescission is obviously not

contemplated. The validity of the stipulation can not be seriouslydisputed. It is in the nature of a facultative resolutory conditionwhich in many cases has been upheld, by this court. (Ponce Enrilev. Court of Appeals, 29 SCRA 504)

However, in the University of the Philippines v. Angeles case,(supra), it was held that in cases where one of the parties contestsor denies the rescission, "only the final award of the court ofcompetent jurisdiction can conclusively settle whether the

resolution is proper or not." It was held, thus:

. . . since in every case, where the extrajudicial resolution is

contested, only the final award of the court of competentjurisdiction can conclusively settle whether the resolution wasproper or not. It is in this sense that judicial action will benecessary as without it, the extrajudicial resolution will remaincontestable and subject to judicial invalidation, unless attackthereon should become barred by acquiescence, estoppel orprescription.

It is clear, however, that judicial intervention is necessary not forpurposes of obtaining a judicial declaration rescinding a contractalready deemed rescinded by virtue of an agreement providing forrescission even without judicial intervention, but in order to

determine whether or not the rec ession was proper.

The case of Parks v. Province of Tarlac, supra, relied upon by thetrial court, is not applicable in the case at bar. While the donation

involved therein was also onerous, there was no agreement in thedonation providing for automatic rescission, thus, the need for ajudicial declaration revoking said donation.

The trial court was therefore not correct in holding that thecomplaint in the case at bar is barred by prescription under Article

764 of the New Civil Code because Article 764 does not apply toonerous donations.

As provided in the donation executed on April 9, 1971, complaincewith the terms and conditions of the contract of donation, shall bemade within five (5) years from its execution. The complaint

which was filed on September 23, 1980 was then well within theten (10) year prescriptive period to enforce a written contract(Article 1144[1], New Civil Code), c ounted from April 9, 1976.

Finally, considering that the allegations in the complaint on thematter of the donee's non-compliance with the conditions of the

donation have been contested by private respondents who claimedthat improvements more valuable than the donated property hadbeen introduced, a judgment on the pleadings is not proper.Moreover, in the absence of a motion for judgment on thepleadings, the court cannot motu proprio render such judgment.Section 1 of Rule 19 provides: "Where an answer fails to tender anissue, or otherwise admits the material allegations of the adverseparty's pleading, the court may, on motion of that party, directjudgment on such pleading." (Emphasis supplied)

ACCORDINGLY, the petition is GRANTED. Civil Case No. 8624is hereby ordered reinstated. Respondent judge is ordered to

conduct a trial on the merits to determine the propriety of therevocation of the subject donation.

SO ORDERED


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G.R. No. 77425 June 19, 1991THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, THEROMAN CATHOLIC BISHOP OF IMUS, and the SPOUSESFLORENCIO IGNAO and SOLEDAD C. IGNAO, petitioners,vs.HON. COURT OF APPEALS, THE ESTATE OF DECEASED

SPOUSES EUSEBIO DE CASTRO and MARTINA RIETA,represented by MARINA RIETA GRANADOS and THERESARIETA TOLENTINO, respondents.

G.R. No. 77450 June 19, 1991THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, THE

ROMAN CATHOLIC BISHOP OF IMUS, and the SPOUSESFLORENCIO IGNAO and SOLEDAD C. IGN AO, petitioners,vs.HON. COURT OF APPEALS, THE ESTATE OF DECEASEDSPOUSES EUSEBIO DE CASTRO and MARTINA RIETA,represented by MARINA RIETA GRANADOS and THERESA

RIETA TOLENTINO, respondents.

Severino C. Dominguez for petitioner Roman Catholic Bishop ofImus, Cavite.

Dolorfino and Dominguez Law Offices for Sps. I gnao.

Joselito R. Enriquez for private respondents.

REGALADO, J.:p

These two petitions for review on certiorari 1 seek to overturn the

decision of the Court of Appeals in CA-G.R. CV No. 05456 2which reversed and set aside the order of the Regional Trial Courtof Imus, Cavite dismissing Civil Case No. 095-84, as well as the

order of said respondent court denying petitioner's motions for thereconsideration of its aforesaid decision.

On November 29, 1984, private respondents as plaintiffs, filed acomplaint for nullification of deed of donation, rescission ofcontract and reconveyance of real property with damages againstpetitioners Florencio and Soledad C. Ignao and the RomanCatholic Bishop of Imus, Cavite, together with the Roman CatholicArchbishop of Manila, before the Regional Trial Court, Branch

XX, Imus, Cavite and which was docketed as Civil Case No. 095-84 therein. 3

In their complaint, private respondents alleged that on August 23,1930, the spouses Eusebio de Castro and Martina Rieta, now bothdeceased, executed a deed of donation in favor of thereindefendant Roman Catholic Archbishop of Manila covering a parcelof land (Lot No. 626, Cadastral Survey of Kawit), located atKawit, Cavite, containing an area of 964 square meters, more orless. The deed of donation allegedly provides that the donee shallnot dispose or sell the property within a period of one hundred(100) years from the execution of the deed of donation, otherwise aviolation of such condition would render ipso facto null and voidthe deed of donation and the property would revert to the estate ofthe donors.

It is further alleged that on or about June 30, 1980, and while stillwithin the prohibitive period to dispose of the property, petitionerRoman Catholic Bishop of Imus, in whose administration all

properties within the province of Cavite owned by the Archdioceseof Manila was allegedly transferred on April 26, 1962, executed adeed of absolute sale of the property subject of the donation infavor of petitioners Florencio and Soledad C. Ignao inconsideration of the sum of P114,000. 00. As a consequence of thesale, Transfer Certificate of Title No. 115990 was issued by the

Register of Deeds of Cavite on November 15, 1980 in the name ofsaid petitioner spouses.

What transpired thereafter is narrated by respondent court in itsassailed decision. 4 On December 17, 1984, petitioners FlorencioIgnao and Soledad C. Ignao filed a motion to dismiss based on the

grounds that (1) herein private respondents, as plaintiffs therein,have no legal capacity to sue; and (2) the complaint states no causeof action.

On December 19, 1984, petitioner Roman Catholic Bishop of Imusalso filed a motion to dismiss on three (3) grounds, the first two (2)

grounds of which were identical to that of the motion to dismissfiled by the Ignao spouses, and the third ground being that thecause of action has prescribed.

On January 9, 1985, the Roman Catholic Archbishop of Manilalikewise filed a motion to dismiss on the ground that he is not areal party in interest and, therefore, the complaint does not state acause of action against him.

After private respondents had filed their oppositions to the saidmotions to dismiss and the petitioners had countered with theirrespective replies, with rejoinders thereto by private respondents,

the trial court issued an order dated January 31, 1985, dismissingthe complaint on the ground that the cause of action has prescribed.5

Private respondents thereafter appealed to the Court of Appealsraising the issues on (a) whether or not the action for rescission ofcontracts (deed of donation and deed of sale) has prescribed; and(b) whether or not the dismissal of the action for rescission ofcontracts (deed of donation and deed of sale) on the ground ofprescription carries with it the dismissal of the main action forreconveyance of real property. 6

On December 23, 1986, respondent Court of Appeals, holding thatthe action has not yet prescibed, rendered a decision in favor ofprivate respondents, with the following dispositive portion:

WHEREFORE, the Order of January 31, 1985 dismissingappellants' complaint is SET ASIDE and Civil Case No. 095-84 ishereby ordered REINSTATED and REMANDED to the lowercourt for further proceedings. No Co sts. 7

Petitioners Ignao and the Roman Catholic Bishop of Imus thenfiled their separate motions for reconsideration which were deniedby respondent Court of Appeals in its resolution dated February 6,1987, 8 hence, the filing of these appeals by certiorari.

It is the contention of petitioners that the cause of action of herein

private respondents has already prescribed, invoking Article 764 ofthe Civil Code which provides that "(t)he donation shall berevoked at the instance of the donor, when the donee fails tocomply with any of the conditions which the former imposed upon

the latter," and that "(t)his action shall prescribe after four yearsfrom the non-compliance with the condition, may be transmitted tothe heirs of the donor, and may be exercised against the donee'sheirs.

We do not agree.

Although it is true that under Article 764 of the Civil Code anaction for the revocation of a donation must be brought within four(4) years from the non-compliance of the conditions of thedonation, the same is not applicable in the case at bar. The deed ofdonation involved herein expressly provides for automatic

reversion of the property donated in case of violation of thecondition therein, hence a judicial declaration revoking the same isnot necessary, As aptly stated by the C ourt of Appeals:

By the very express provision in the deed of donation itself that theviolation of the condition thereof would render ipso facto null and

void the deed of donation, WE are of the opinion that there wouldbe no legal necessity anymore to have the donation judiciallydeclared null and void for the reason that the very deed of donationitself declares it so. For where (sic) it otherwise and that the donorsand the donee contemplated a court action during the execution ofthe deed of donation to have the donation judicially rescinded ordeclared null and void should the condition be violated, then thephrase reading "would render ipso facto null and void" would notappear in the deed of donation. 9

In support of its aforesaid position, respondent court relied on therule that a judicial action for rescission of a contract is not

necessary where the contract provides that it may be revoked andcancelled for violation of any of its terms and conditions. 10 Itcalled attention to the holding that there is nothing in the law that

prohibits the parties from entering into an agreement that aviolation of the terms of the contract would cause its cancellationeven without court intervention, and that it is not always necessaryfor the injured party to resort to court for rescission of the contract.11 It reiterated the doctrine that a judicial action is proper onlywhen there is absence of a special provision granting the power ofcancellation. 12

It is true that the aforesaid rules were applied to the contracts

involved therein, but we see no reason why the same should notapply to the donation in the present case. Article 732 of the CivilCode provides that donations inter vivos shall be governed by the

general provisions on contracts and obligations in all that is notdetermined in Title III, Book III on donations. Now, said Title IIIdoes not have an explicit provision on the matter of a donationwith a resolutory condition and which is subject to an expressprovision that the same shall be considered ipso facto revokedupon the breach of said resolutory condition imposed in the deedtherefor, as is the case of the deed presently in question. Thesuppletory application of the foregoing doctrinal rulings to thepresent controversy is consequently justified.

The validity of such a stipulation in the deed of donation providingfor the automatic reversion of the donated property to the donor

upon non-compliance of the condition was upheld in the recentcase of De Luna, et al. vs. Abrigo, et al. 13 It was held therein thatsaid stipulation is in the nature of an a greement granting a party theright to rescind a contract unilaterally in case of breach, without


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need of going to court, and that, upon the happening of theresolutory condition or non-compliance with the conditions of thecontract, the donation is automatically revoked without need of ajudicial declaration to that effect. While what was the subject ofthat case was an onerous donation which, under Article 733 of theCivil Code is governed by the rules on contracts, since the

donation in the case at bar is also subject to the same rules becauseof its provision on automatic revocation upon the violation of aresolutory condition, from parity of reasons said pronouncementsin De Luna pertinently apply.

The rationale for the foregoing is that in contracts providing for

automatic revocation, judicial intervention is necessary not forpurposes of obtaining a judicial declaration rescinding a contractalready deemed rescinded by virtue of an agreement providing forrescission even without judicial intervention, but in order todetermine whether or not the rescission was proper. 14

When a deed of donation, as in this case, expressly provides forautomatic revocation and reversion of the property donated, therules on contract and the general rules on prescription shouldapply, and not Article 764 of the Civil Code. Since Article 1306 ofsaid Code authorizes the parties to a contract to establish suchstipulations, clauses, terms and conditions not contrary to law,morals, good customs, public order or public policy, we are of theopinion that, at the very least, that stipulation of the partiesproviding for automatic revocation of the deed of donation,

without prior judicial action for that purpose, is valid subject to thedetermination of the propriety of the r escission sought. Where suchpropriety is sustained, the decision of the court will be merely

declaratory of the revocation, but it is not in itself the revocatoryact.

On the foregoing ratiocinations, the Court of Appeals committedno error in holding that the cause of action of herein privaterespondents has not yet prescribed since an action to enforce awritten contract prescribes in ten (10) years. 15 It is our view thatArticle 764 was intended to provide a judicial remedy in case ofnon-fulfillment or contravention of conditions specified in the deedof donation if and when the parties have not agreed on theautomatic revocation of such donation upon the occurrence of thecontingency contemplated therein. That is not the situation in the

case at bar.

Nonetheless, we find that although the action filed by private

respondents may not be dismissed by reason of prescription, thesame should be dismissed on the ground that private respondentshave no cause of action against petitioners.

The cause of action of private respondents is based on the allegedbreach by petitioners of the resolutory condition in the deed ofdonation that the property donated should not be sold within aperiod of one hundred (100) years from the date of execution of thedeed of donation. Said condition, in our opinion, constitutes anundue restriction on the rights arising from ownership ofpetitioners and is, therefore, contrary to p ublic policy.

Donation, as a mode of acquiring ownership, results in an effectivetransfer of title over the property from the donor to the donee.Once a donation is accepted, the donee becomes the absoluteowner of the property donated. Although the donor may impose

certain conditions in the deed of donation, the same must not becontrary to law, morals, good customs, public order and publicpolicy. The condition imposed in the deed of donation in the casebefore us constitutes a patently unreasonable and undue restrictionon the right of the donee to dispose of the property donated, whichright is an indispensable attribute of ownership. Such a prohibition

against alienation, in order to be valid, must not be perpetual or foran unreasonable period of time.

Certain provisions of the Civil Code illustrative of the aforesaidpolicy may be considered applicable by analogy. Under the thirdparagraph of Article 494, a donor or testator may prohibit partition

for a period which shall not exceed twenty (20) years. Article 870,on its part, declares that the dispositions of the testator declaring allor part of the estate inalienable for more than twenty (20) years arevoid.

It is significant that the provisions therein regarding a testator also

necessarily involve, in the main, the devolution of property bygratuitous title hence, as is generally the case of donations, beingan act of liberality, the imposition of an unreasonable period ofprohibition to alienate the property should be deemed anathema tothe basic and actual intent of either the donor or testator. For thatreason, the regulatory arm of the law is or must be interposed toprevent an unreasonable departure from the normative policyexpressed in the aforesaid Articles 494 and 870 of the Code.

In the case at bar, we hold that the prohibition in the deed ofdonation against the alienation of the property for an entirecentury, being an unreasonable emasculation and denial of an

integral attribute of ownership, should be declared as an illegal orimpossible condition within the contemplation of Article 727 ofthe Civil Code. Consequently, as specifically stated in said

statutory provision, such condition shall be considered as notimposed. No reliance may accordingly be placed on saidprohibitory paragraph in the deed of donation. The net result isthat, absent said proscription, the deed of sale supposedlyconstitutive of the cause of action for the nullification of the deedof donation is not in truth violative of the latter hence, for lack ofcause of action, the case for private respondents must fail.

It may be argued that the validity of such prohibitory provision in

the deed of donation was not specifically put in issue in thepleadings of the parties. That may be true, but such oversight orinaction does not prevent this Court from passing upon and

resolving the same.

It will readily be noted that the provision in the deed of donationagainst alienation of the land for one hundred (100) years was thevery basis for the action to nullify the deed of d donation. At thesame time, it was likewise the controverted fundament of themotion to dismiss the case a quo, which motion was sustained bythe trial court and set aside by respondent court, both on the issueof prescription. That ruling of respondent court interpreting saidprovision was assigned as an error in the present petition. Whilethe issue of the validity of the same provision was not squarelyraised, it is ineluctably related to petitioner's aforesaid assignment

of error since both issues are grounded on and refer to the verysame provision.

This Court is clothed with ample authority to review matters, evenif they are not assigned as errors on appeal, if it finds that theirconsideration is necessary in arriving at a just decision of the case:16 Thus, we have held that an unassigned error closely related toan error properly assigned, 17 or upon which the determination ofthe question properly assigned is dependent, will be considered by

the appellate court notwithstanding the failure to assign it as error.18

Additionally, we have laid down the rule that the remand of thecase to the lower court for further reception of evidence is notnecessary where the Court is in a position to resolve the dispute

based on the records before it. On many occasions, the Court, inthe public interest and for the expeditious administration of justice,has resolved actions on the merits i nstead of remanding them to thetrial court for further proceedings, such as where the ends ofjustice, would not be subserved by the r emand of the case. 19 Theaforestated considerations obtain in and apply to the present case

with respect to the matter of the validity of the resolutory conditionin question.

WHEREFORE, the judgment of respondent court is SET ASIDEand another judgment is hereby rendered DISMISSING Civil CaseNo. 095-84 of the Regional Trial Court, Branch XX, Imus, Cavite.

SO ORDERED


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G.R. No. 74203 April 17, 1990REV./ATTY. JOSE T. TAYOTO, substituted by his heir,JULIETA ESPANTO VDA. DE TAYOTO, petitioner,vs.THE HEIRS OF CABALO KUSOP namely HADJI LUCAYACABALO VDA. DE RASIM, SALUDIN CABALO, MAMAGUS

CABALO, MAMASALANGA CABALO, BIDALIA CABALO,KAMSIYA KAHAL, NANG CABALO, JALIPA KAHAL, IMAKAHAL, and ILON KAHAL, represented by HADJI LUCAYACABALO VDA. DE RASIM; ROGELIO V. GARCIA and THECITY OF GENERAL SANTOS as intervenors, and theINTERMEDIATE APPELLATE COURT, respondents.

Alfredo B. Odi for respondent City Government.

Nilo J. Flaviano for respondents.

Rogelio V. Garcia for himself a s Intervenor.

FERNAN, C.J.:

In the instant petition for review on certiorari of the decision of thethen Intermediate Appellate Court affirming the dismissal of thecomplaint for quieting of title/specific performance withpreliminary injunction, the Court is confronted with the q uestion ofthe validity of a donation in favor of an educational institutionwhich was represented in the deed of donation by a lawyer who,

thereafter, helped obtain a presidential proclamation declaring aportion of the donated parcel of land as disposable under theprovisions of the Public Land Act.

On October 2, 1963, then President Diosdado Macapagal issuedProclamation No. 168 withdrawing from sale or settlement and

reserving for recreational and health resort site purposes a 52,678-square meter parcel of land of the public domain in the thenMunicipality of General Santos in the Province of Cotabato.Known as the Magsaysay Park, said parcel of land is bounded onthe south and southwest by the Sarangani Bay; on the west by Lot1 of Psu-133253; on the north by Albert Morrow Boulevard, andon the east and northeast by Gallego Boulevard. According to saidpresidential proclamation, the park would be under theadministration of the Municipality of General Santos "subject to

private rights, if any there be." 1

General Santos became a city by virtue of Republic Act No. 5412

which took effect on June 15, 1968. Under Section 98 of said law,the national government ceded to General Santos City "theownership and possession to all lands of the public domain withinthe city."

Magsaysay Park became known as the Lion's Beach after it wasdeveloped by the Matutum Lion's Club into a public park withswings and a skating rink. The beach also became an ideal place togo swimming. 2

On February 5, 1973, the herein private respondents who areMoslem Filipinos and residents of Polomolok, South Cotabato,

claiming ownership over the entire 52,678-square meterMagsaysay Park, donated one-half of the western side thereof tothe John F. Kennedy Memorial Lyceum (Far East), Inc.(hereinafter referred to as the Lyceum), a non-stock private

corporation, represented by Atty. Jose T. Tayoto. Herein quoted infull is the deed of donation:

DEED OF DONATION

KNOW ALL MEN BY THESE PRESENTS:

THIS DEED OF DONATION, made and executed in the City ofGeneral Santos, Philippines, on this 5th day of F ebruary, 1973

by

1. HADJI LUKAYA KABALO married to HadjiMohammad Rasim

2. UDIN KABALO married to Kabiba Malang

3. MAMAGAS KABALO married to Omon Saligan

4. MAMASALANGA KABALO married to CamaliaAndagay

5. BIDALIA KABALO married to Mad Guaybar

6. NANG KABALO married to Guimbang Lava

7. HAMSIYA KAHAL married to Zabal Mula

8. JALIPA KAHAL married to Kosin Alibasa

9. IMA KAHAL married to Mamaluba Sedik

10. ILON KAHAL married to Amina Sedik

of legal ages, Moslem Filipinos and residents of Polomolok, SouthCotabato, Mindanao, Republic of the Philippines, hereinaftercalled the DONORS.

in favor of

The JOHN F. KENNEDY MEMORIAL LYCEUM (FAR EAST)INC., a duly organized non-stock private corporation, existing

under and by virtue of the laws of the Republic of the Philippines,with principal office at General Santos City, Republic of thePhilippines, represented in this act by its President/Director and

Founder, Atty. Jose T. Tayoto, who is likewise of legal age,Filipino, married to Juliet P. Espanto and resident of GeneralSantos City, Republic of the Philippines, hereinafter called theDONEE.

WITNESSETH

That the DONOR is the absolute owner of that certain realproperty situated in General Santos City and more particularlydescribed as follows:

A parcel of land (plan MR-1160-D) situated in the Barrio of

Dadiangas, City of General Santos, bounded on the N. by theAlbert Morrow Boulevard; on the NE and E, by the Gallego Blvd.;on the SW by the Sarangani Bay; and on the W. by the SufragiaSalazar. Point . . . is S. 20 deg 35'E., 6682.40 M. from

Triangulation Station Sarangani West Base. Area FIFTY TWOTHOUSAND SIX HUNDRED SEVENTY EIGHT (52,678)SQUARE METERS, more or less.

Declared for taxation purposes under tax declaration No. 8715, inthe name of the late Kabalo Kusop, issued by the Treasurer's office

of General Santos, Cotabato, now General Santos City; and thecorresponding previous tax declarations thereof;

That for and in consideration of the love and affection which theDONOR has for the purposes for which the DONEE is existing,which is education, and of the faithful service as legal counsel

which the President/Director and Founder of the Donee, hasrendered and is rendering to the DONOR, the said DONOR bythese presents, cedes, transfers, and conveys, by way ofDONATION, unto said DONEE the ONE-HALF PORTION ATTHE WESTERN SIDE of the above described property, subject tothe outcome of the case involving said parcel of land, with the

herein DONORS as plaintiffs/complainants/petitioners and theCity of General Santos as defendant/respondents to be handled andventilated with the above said Atty. Jose T. Tayoto, as legalcounsel:

That the DONORS does (sic) hereby state for the purpose ofgiving full effect to this donation that they have reserved forthemselves in full ownership other properties sufficient to supportthem in a manner a ppropriate to their station;

That the DONEE does hereby accept the donation of theabovementioned property, and does by these presents express (sic)

its sincerest appreciation and thanks for the kindness and liberalityshown by the DONORS.

IN WITNESS WHEREOF, the above named parties have signedand executed this instrument, at the place and on the date firstabove written

(Sgd.) HADJI LUKAYA KABALO JOHN F. KENNEDY

MEMORIAL LYCEUM

(Sgd.) (FAIR EAST) INC.

UDIN KABALO

D O N E E

(Sgd.)

MAMAGAS KABALO

(Thumbmarked)

BIDALIA KABALO By:

(Sgd)

MAMASALANGA KABALO

(Sgd)


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(Thumbmarked) ATTY. JOSE TAYOTO

NANG KABALO President/Director

& Founder

(Thumbmarked)

KAMSIYA KAHAL

(Sgd)

JALIPA KAHAL

(Thumbmarked)

IMA KAHAL

(Sgd.)

ILON KAHAL

D O N O R S

SIGNED IN THE PRESENCE OF:

(Sgd.) (Sgd.)

1. Witness 2. Witness

(Acknowledgment Omitted) 3

A decade later, or on February 25, 1983, the then President of the

Philippines issued Proclamation No. 2273 excluding from theoperation of Proclamation No. 168 "certain portions of the landsembraced therein and declaring the same open to disposition underthe provisions of the Public Land Act." 4 After a survey had beenconducted, said portions were identified as Lot Y-1 and Lot Y-2,MR-1160-D, respectively containing areas of 18,695 and 18,963square meters.

On March 28, 1983, the board of trustees of the Lyceum adopted

Resolution No. 1 authorizing Jose T. Tayoto as its president andchairman of the board and Mrs. Juliet E. Tayoto as itstreasurer/trustee, "to cede, transfer, convey and assign Lot Y-1,

MR-1160-D in partial settlement of years of accumulated salaries."The resolution states that the one-half western side of theMagsaysay Park had been "definitely identified" as Lot Y-1, MR-1160-D with an area of 18,695 square meters. Present during themeeting were three of the five members of the board of trustees,namely, Jose T. Tayoto, his wife Juliet and Rev. Juan T. Tayoto. 5Accordingly, on April 9, 1983, the Lyceum, represented by Jose T.Tayoto and his wife, executed a deed assigning its ownershiprights over Lot Y-1 in favor of Jose T. Tayoto. 6

As the heirs of Cabalo Kusop had on June 25, 1975 sold for P5,000Lot Y-1 with an area of 30,000 square meters and Lot Y-3 with an

area of 1,500 square meters in favor of Fortunato Falalimpa, onApril 13, 1983, Falalimpa executed a deed of assignment of realrights over Lot Y-1 in favor of Tayoto on the grounds that he hadbeen a beneficiary of the Lyceum, his grandchildren having studied

there and that he realized that the transfer to him, althoughapproved by the Southern Philippines DevelopmentAdministration, was already a second transfer of the property. 7

Thereafter, Tayoto introduced improvements on Lot Y-1 includinga "guardhouse-shade-temporary-office combine" and later on, he

filed a free patent application therefor. 8 For a while, Tayotonurtured the belief that Lot Y-1 would eventually be his. However,subsequent acts of herein private respondents led him to file a casein court against them.

According to Tayoto, as soon as private respondents took hold of a

copy of Proclamation No. 2273, they disowned the deed ofdonation in his favor, caused the survey of the lot withoutconsulting him and, when he confronted them, they promised togive him 2,000 square meters of Lot Y-1. Furthermore, privaterespondents, through one Mad Guaybar, threatened his employeesand through hired malefactors, destroyed the walls of the

guardhouse and the furniture therein. 9

Claiming that private respondents were poised to induce masssquatting on Lot Y-1; that private respondents had disregarded tenyears of his "incessant legal battles and follow-ups to obtainProclamation No. 2273; that his travail led to his hospitalizationfor heart ailment; that Udin Saludin Kabalo called him up by longdistance telephone threatening to kill him unless he accepted 2,500square meters of Lot Y-1, and that he had granted special

privileges to the Kusop heirs of school age, 10 Tayoto filed onMay 15, 1983 a complaint for quieting of title/specificperformance with preliminary injunction and prayer for immediate

issuance of status quo order with damages before the RegionalTrial Court of General Santos City. 11

In their answer, the heirs of Cabalo Kusop averred that there wasin fact no donation as their signatures were obtained thru thefraudulent manipulation and misrepresentation of Tayoto who,being their lawyer, exerted undue influence and moral ascendancyover them who are illiterates and unlearned. Tayoto allegedly madethem believe that by affixing their signatures to the deed ofdonation, the approval of their petition to segregate the areainvolved from the operation of Proclamation No. 168 would befacilitated. 12

Atty. Rogelio Garcia, as a taxpayer, and the City Fiscal, in behalfof the city government, intervened in the case. Thereafter, the heirs

of Cabalo Kusop filed an urgent motion to dismiss the complainton the following grounds: [a] invalidity of the donation as thesubject thereof had not vet been excluded from the MagsaysayPark; [b] nullity of the donation as it contravened Article 1491,paragraph 5 of the Civil Code; [c] the donor did not in fact executethe deed of donation; and [d] the complaint did not state a cause ofaction.

In dismissing the complaint, the lower court 13 held that at thetime of the donation, Proclamation No. 168 was still in force andhence, the donated property was still part of Magsaysay Park.Necessarily, the donors could not dispose of the property which

was not theirs. The lower court found that although the ostensibledonee was the Lyceum, "the donation was actually for attorney'sfee" 14 as proven by the fact that later, the Lyceum assigned thedonated property to Tayoto. Moreover, should the donated

property be considered as a contingent fee, collection of the samecould not be enforced "while the case is pending or during thependency of the case." 15

The lower court did not deem it necessary to discuss the thirdground for dismissal but it upheld the defendants' contention that

the complaint did not state a cause of action. The court noted thatthere was a "lull" in the disposition of the case after theassassination of the judge * handling it and before it wastransferred to another branch.

Tayoto appealed to the then Intermediate Appellate Court. In its

decision of September 30, 1985, said court dismissed the appeal. Itruled that the lower court correctly nullified the donation as thedonated lot was still part of the public domain. It added thatalthough Proclamation No. 168 states that the reservation of theMagsaysay Park is "subject to private rights, if any there beProclamation No. 2273 does not recognize the private claim or

right of the heirs of Cabalo Kusop as the latter proclamation stillrequired the claimants to the excluded lots to comply with theprovisions of the Public Land Act on free patents, sales patents orhomesteads.

The appellate court, noting that in his brief Tayoto did not clearlystate whether he was the lawyer of the herein private respondentsin the litigations pending before the lower courts, 16 also ruled thatthe provisions of Article 1491, paragraph 5 were violated when the

parties executed the deed of donation at the time of the existence ofthe lawyer-client relationship.

His motion for reconsideration of the appellate court's decisionhaving been denied, Tayoto came to this Court through thispetition for review on certiorari. He contends herein that the

proviso in Proclamation No. 2273 that portions of Magsaysay Park"shall be open for disposition in accordance with the public landlaw" does "not per se or automatically mean that the private rightsor ownership of the heirs of Cabalo Kusop are not recognized" 17in view of the various documents recognizing said private rightsover Lots Y-1 and Y-2 as well as "official documents of severalimports (which) were the basis for the issuance of ProclamationNo. 2273." 18 Hence, petitioner cites the fact that on December 29,1983, the Bureau of Lands disposed of portions of Lot Y-2 under

Free Patent No. (XXI-21) 475 and the same was registered in thename of the heirs of Cabalo Kusop under Original Certificate ofTitle No. P-4900. 19

Petitioner also contends that the deed of donation does not violateArticle 1491 paragraph 5 of the Civil Code because the deed"could not take effect but only upon the success of the case beingadvocated by" him. 20 The deed of donation "must be construed asa contingent onerous donation" . . . "effective only after thehappening of the suspensive condition" consisting of the issuanceof a presidential proclamation segregating portions of MagsaysayPark in favor of the donors. 21

The resolution of this case hinges on the validity of the donation,the deed of which has been quoted above.

Both the courts below appear to have proceeded from thepresumption that the donation is actually in favor of the petitioner.The deed of donation itself and subsequent acts of Tayoto,


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however, reveal that the donee is the John F. Kennedy MemorialLyceum (Far East), Inc. and not the herein petitioner.

Admittedly, there appears to be a confusion as to the personalitiesof the Lyceum and Tayoto as shown by the facts that one of thereasons stated for the donation is Tayoto's "faithful service as a

legal counsel" and that the deed states that the donation is "subjectto the outcome of the cases" involving the donated property whichcases would be handled by Tayoto. However, the undisputable factis that Tayoto affixed his signature on the deed of donation andaccepted the donation in his capacity as "President/Director &Founder" of the Lyceum and not in his personal capacity. The deed

itself acknowledges the fact that the Lyceum is "a duly organizednon-stock private corporation." Hence, legally, it is a separatecorporate entity with a personality distinct from that of itsrepresentative in the donation, petitioner herein.

Moreover, petitioner is bound by his actuations subsequent to the

execution of the deed of donation which negate his claim that thedonation is really a "contingent onerous donation" in his favor.After the issuance of Proclamation No. 2273, when it becameapparent that the donors would eventually have a right to claim theproperty excluded from the Magsaysay Park, petitioner still movedto solidify his claim over the donated property. Thus, he saw to theadoption by the Lyceum board of trustees of Resolution No. 1which resulted in the execution of the document by whichpetitioner, in his capacity as president of the lyceum and his wife

as treasurer thereof, assigned the ownership rights over the donatedland to petitioner himself.

Be that as it may, the donation is void. There are three essentialelements of donation is [1] the reduction of the patrimony of thedonor, [2] the increase in the patrimony of the donee, and [3] the

intent to do an act of liberality (animus donandi). 22 Granting thatthere is an animus donandi we find that the alleged donation lacksthe first two elements which presuppose the donor's ownershiprights over the subject of the donation which he transmits to thedonee thereby enlarging the donee's estate. This is in consonancewith the rule that a donor cannot lawfully convey what is not hisproperty. 23 In other words, a donation of a parcel of land thedominical rights of which do not belong to the donor at the time ofthe donation, is void. This holds true even of the subject of thedonation is not the land itself but the possessory and proprietaryrights over said land. 24

In this case, although they allegedly declared Magsaysay Park astheir own for taxation purposes, the heirs of Cabalo Kusop did nothave any transmissible proprietary rights over the donated propertyat the time of the donation. In fact, with respect to Lot Y-2, theystill had to file a free patents application to obtain an originalcertificate of title thereon. This is because Proclamation No. 2273declaring as "open to disposition under the provisions of the PublicLand Act" some portions of the Magsaysay Park, is not anoperative law which automatically vests rights of ownership on theheirs of Cabalo Kusop over their claimed parcels of land.

The import of said quoted proviso in a presidential proclamation is

discussed in the aforecited Republic v. Court of Appeals casewhich dealt with the validity of a donation by a sales awardee of aparcel of land which was later reserved by presidentialproclamation for medical center site purposes. We held therein that

where the land is withdrawn from the public domain and declaredas disposable by the Director of Lands under the Public Land Act,the Sales Award covering the same confers on a sales awardeeonly a possessory and not proprietary right over the land appliedfor. The disposition of the land by the Director is merelyprovisional as the applicant still has to comply with the

requirements of the law before any patent is issued. It is only afterthe compliance with such requirements t hat the patent is issued andthe land applied for considered "permanently disposed of by theGovernment." 25

The interpretation of said proviso should even be more stringent in

this case considering that with respect to Lot Y-1, the heirs ofCabalo Kusop do not appear to have taken even the initial stepsmandated by the Public Land Act for claimants of the landexcluded from the public domain. The alleged donation wastherefore no more than an exercise in futility.

The donation being void, petitioner is not entitled to any rightsotherwise emanating therefrom. Hence, we do not find it necessaryto determine the applicability of Article 1491, paragraph 5 of theCivil Code.

However, it appearing that petitioner's legal services to privaterespondents have not been paid as the donation which wassupposedly in payment thereof has been declared null and void inthe present case, we deem it just, fair and equitable to fix a

reasonable amount of attorney's fees in favor of petitioner. Wewould have ordinarily remanded the case for reception of evidenceon the nature and character of the services rendered by petitioner to

private respondents, but so as not to unduly prolong the resolutionof this controversy, more so now that petitioner is dead, ** we fixthe amount of attorney's fees to be paid by private respondents to

the estate of petitioner at Ten Thousand Pesos.

WHEREFORE, the petition for review on certiorari is herebyDENIED for lack of merit. The motion to substitute petitioner filedby his widow, Mrs. Juliet Espanto vda. de Tayoto, is GRANTED.Private respondents are ordered to pay the amount of TenThousand Pesos as attorney's fees to the estate of the lateRev./Atty. Jose T. Tayoto for the legal services rendered by thelatter to them. No pronouncement as to costs.

SO ORDERED.


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G.R. No. L-8327 December 14, 1955

ANTONINA CUEVAS, plaintiff-appellant,vs.CRISPULO CUEVAS, defendant-appellee.

Pedro D. Maldia for appellant.Teodoro P. Santiago for appellee.

REYES, J. B. L., J.:

On September 18, 1950, Antonina Cuevas executed a notarizedconveyance entitled "Donacin Mortis Causa," ceding to hernephew Crispulo Cuevas the northern half of a parcel ofunregistered land in barrio Sinasajan, municipality of Penaranda,Province of Nueva Ecija (Exhibit A). In the same instrument

appears the acceptance of Crispulo Cuevas.

"Subsequently, on May 26, 1952, the donor executed anothernotarial instrument entitled "Revocacion de Donacion MortisCausa" (Exhibit B) purporting to set aside the precedingconveyance; and on August 26, 1952, she brought action in theCourt of First Instance to recover the land conveyed, on the ground(1) that the donation being mortis causa, it had been lawfullyrevoked by the donor; and (2) even it if were a donation inter

vivos, the same was invalidated because (a) it was not properlyaccepted; (b) because the donor did not reserve sufficient propertyfor her own maintenance, and (c) because the donee was guilty of

ingratitute, for having refused to support the donor.

Issues having been joined, and trial had, the Court of First Instance

denied the recovery sought, and Antonina Cuevas thereuponappealed. The Court of Appeals forwarded the case to this Courtbecause, the case having been submitted on a stipulation of facts,the appellant raised only questions of law.

The first issue tendered converns the true nature of the deed"Exhibit A"; whether it embodies a donation inter vivos, or adisposition of property mortis causa revocable freely by thetransferor at any time before death. 1

It has been rules that neither the designation mortis causa, nor theprovision that a donation is "to take effect at the death of the

donor", is a controlling criterion in defining the true nature ofdonations (Laureta vs. Mata, 44 Phil., 668; Concepcion vs.Concepcion, 91 Phil., 823). Hence, the crux of the controversyrevolves around the following provisions of the deed of do nation:

Dapat maalaman ni Crispulo Cuevas na samantalang ako aynabubuhay, and lupa na ipinagkakaloob ko sa kaniya ay ako pa rinand patuloy na mamomosecion, makapagparatrabaho,makikinabang at ang iba pang karapatan sa pagmamayari ay saakin pa rin hanggang hindo ko binabawian ny buhay ng Maykapalat ito naman ay hindi ko nga iya-alis pagkat kung ako ay mamatayna ay inilalaan ko sa kaniya.

There is an apparent conflict in the expression above quoted, inthat the donor reserves to herself "the right of possession,cultivation, harvesting and other rights and attributes of ownership

while I am not deprived of life by the Almighty"; but right after,the same donor states that she "will not takle away" (the property)"because I reserve it for him (the donee) when I die."

The question to be decided is whetehr the donor intended to partwith the title to the property immediately upon the execution of the

deed, or only later, when she had died. If the first, the donation isoperative inter vivos; if the second, we would be confronted with adisposition mortis causa, void from the beginning because theformalities of testaments were not observed (new Civil Code, Arts.728 and 828; heirs of Bonsato vs. Court of Appeals, 250 Off. Gaz.(8), p. 3568; Tuason vs. Posadas, 54 Phil., 289; Sent. Trib. Sup. of

Spain, 8 July 1943).

We agree with the Court below that the decisive proof that thepresent donation is operative inter vivor lies in the final phrase tothe effect that the donor will not dispose or take away ("hindi konga iya-alis" in the original) the land "because I am reserving it to

him upon my death." By these words the donor expresslyrenounced the right to freely dispose of the property in favor ofanother (a right essential to full ownership) and manifested theirrevocability of the conveyance of the naked title to the propertyin favor of the donee. As stated in our decision in Bonsato vs.Court of Appeals, ante, such irrevocability is characteristic ofdonations inter vivos, because it is incompatible with the idea of adisposition post mortem. Witness article 828 of the New CivilCode, that provides:

ART. 828. A will may be revoked by the testator at any timebefore his death. Any waiver or r estriction of this right is void.

It is apparent from the entire context of the deed of donation thatthe donor intended that she should retain the entire beneficial

ownership during her lifetime, but that the naked title shouldirrevocably pass to the donee. It is only thus that all theexpressions heretofore discussed can be given full effect; and whenthe donor stated that she would continue to retain the "possession,cultivation, harvesting and all other rights and attributes ofownership," she meant only the dominium utile, not the fullownership. As the Court below correctly observed, the words"rights and attributes of ownership" should be construed ejusdemgeneris with the preceding rights of "possession, cultivation andharvesting" expressly enumerated in the deed. Had the donormeant to retain full or absolute ownership she had no need tospecify possession, cultivation and harvesting, since all these rights

are embodied in full or absolute ownership; nor would she thenhave excluded the right of free disposition from the "rights andattributes of ownership" that she reserved for herself.lawphi1.net

Hence, the Court below rightly concluded that the deed Exhibit Awas a valid donation inter vivos, with reservation of beneficial titleduring the lifetime of the donor. We may add that it is highlydesirable that all those who are called to prepare or notarize deedsof donation should call the attention of the donors to the necessityof clearly specifying whether, notwithstanding the donation, theywish to retain the right to control and dispose at will of theproperty before their death, without need of the consent or

intervention of the beneficiary, since the express reservation ofsuch right would be conclusive indication that the liberality is toexist only at the donor's death, and therefore, the formalities oftestaments should be observed; while, a converso, the express

waiver of the right of free disposition would place the inter vivoscharacter of the donation beyond dispute (Heirs of Bonsato vs.Court of Appeals, 50 Off. Gaz. (8), p. 3568).

The argument that there was no sufficient acceptance, because thedeed "merely recites that (1) the donee has duly read all the

contents of this donation; (2) that he 'shall fully respect all itsterms'; and (3) that 'for the act of benevolence' he is expressing hisgratitude" but there is no show of acceptance (Appellant's brief, p.7), is without basis. To respect the terms of the donation, and at thesame time express gratitude for the donor's benevolence,constitutes sufficient acceptance, If the donee did not accept, what

had he to be grateful about? We are no longer under the formularysystem of the Roman law, when specific expressions had to beused under paid of nullity.

Also unmeritoriious is the contention that the donation is voidbecause the donor failed to reserve enough for ther own support.

As we have seen, she expressly reserved to herself all the benefitsderivable from the donated property as long as she lived. Duringthat time, she suffered no diminution of income. If that was notenough to support her, the deficiency was not dur to the donation.

Finally, the donee is not rightfully chargeaboe with ingratitude,because it was expressly stipulated that the donee had a totalincome of only P30 a month, out of which he had to supporthimself, his wife and his two children. Evidently his means did not

allow him to add the donor's support to his own burdens.

Wherefore, the decision appealed from is affirmed. No costs in this

instance, appellant having obtained leave to litigate as a pauper. Soordered


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Ortiz, et al. vs. Court of Appeals and Basada May 19, 1955[GRN L-7307 May 19, 1955]PACITA ORTIZ, et al., petitioners, vs. THE COURT OFAPPEALS and ANDRES BASADA, respondents1. DONATION OF REAL PROPERTY; WHEN DONEEACQUIRES OWNERSHIP AND POSSESSION OF DONATED

PROPERTY.-From the time the public instrument of donation issimultaneously executed and acknowledged by donors and donees,the latter acquired not only the ownership but also the possessionof the donated property, since the execution of a public instrumentof conveyance is one of the recognized ways in which delivery(tradition) of lands may be made, unless the countrary is expressed

or inferable from the terms of the deeds.2. ID.; DONATION IS ABSOLUTE AND UNCONDITIONALIN THE ABSENCE OF RESERVATION.- Where the donation ison its face absolute land unconditional and nothing in its textauthorizes us to conclude that it is limited to the naked ownershipof the land donated, the absence in the deed of any express

reservation of usufruct in favor of the donors is proof that no suchreservation was ever intended considering that under the law, adonation of land by public instrument is required to express thecharges that the donee must assume.PETITION for review by certiorari of a decision of the Court ofAppeals.The facts are stated in the opinion o f the Court.Marciano Chitongco for petitioners.Flaviano de Asis for respondents.

REYES, J. B. L., J.:Pacita Ortiz and Cresencia Ortiz pray for a review of the decisionof the Court of Appeals in its CA-G. R. No.7691-R, dismissing

their complaint against Andres Basada for recovery of a parcel ofland in Lapinig, Samar, described as follows:"Terreno cocalero ubicado en el municipio de Lapinig, Samar,

lindante al NorteBasilio Piangdon, ahora Pedro Mojica; al EsteEugenio Montibon, ahora solar de la escuela; al Sur-Colina; y alOeste Octavia Anacta, ahora Donata Abique, con un area, de 3,200m.c., poco mas o menos avaluado en P100.00 bajo el Tax No.4649." (Dec. CA. p. 1).As determined by the Court of Appeals, the parcel of land inquestion belonged originally to the spouses Bonifacio Yupo andVicenta, de Guerra. On April 19, 1940, the owners donated the lot(among others) to their grandchildren, petitioners Ortiz, by publicdocument acknowledged before Notary Public Liberato Cinco, andcouched in the following terms:"DEED OF DONATION LET IT BE KNOWN BY ANYBODY

WHO MIGHT SEE THIS:That, we, BONIFACIO YUPO AND VICENTA DE GUERRA,Married to each other, both of age, residing at barrio Lapinig,Palapag, Samar, Philippine and CRESENCIA ORTIZPINANGAY,ALEJANDRO ORTIZ and PACITA ORTIZ, also of age all ofthem, the first one residing at the same place and the two others atbarrio Potong, Palapag, Samar, have agreed on the following:THAT BONIFACIO YUPO and VICENTA DE GUERRA, for andin consideration of the liberality and love to their grandchildren,CRESENCIA ORTIZ-PINANGAY, ALEJANDRO ORTIZ andPACITA ORTIZ, announce to everybody that that at their free willgive and donate to CRECENCIA ORTIZ-PINANGAY

ALEJANDRO ORTIZ and PACITA ORTIZ three (3) parcels ofland which are as follows:Tax No. 19738, Awang, Lapinig, Palapag, Samar, bounded in theNorth-Jacoba Enage; East-Jacoba Enage and Swamp, South-

Awang Stream; and on the WestFermin Espinisin, Teresa Cesestaand Francisco Donceras.Tax No: 4649, Lapinig, Palapag, Samar; bounded in the North -Easilio Piangdon; on East-Eugenio Montibon; and the South--Colina; and the West-Octavio Anacta.Tax No. 12144, Potong, Palapag, Samar, bounded on the North--

Bo. de Potong; on the East-Playa Mar; South-Juan Sidro; on theWest-Juan Sidro.We trust that the donees would divide the lands donated to them bythemselves.That CRESENCIA ORTIZ-PINANGAY, ALEJANDRO ORTIZand PACITA ORTIZ, hereby accept this donation intervivos of the

above-mentioned three (3) parcels of land and that they herebymanifest their gratefulness to the sympathy, love and liberality andbenevolence of BONIFICIO YUPO and VICENTA DE GUERRA."In truth hereof, we have placed our names below this 19th day ofApril, 1940 at Palapag, Samar.(Sgd.) CRESENCIA ORTIZ-PINANGAY

(SGD.) ALEJANDRO ORTIZ(FDO.) BONIFACIO YUPO(SGD.) PACITA ORTIZ(FDO.) VICENTA DE GUERRASigned in the presence of:Signature illegibleACKNOWLEDGMENT By NOTARYY PUBLIC LIBERATO B.CINCO. '(Exhibit D-2, trans. of Exh. D)" (Dec. CA. pp. 2-3).The donors were duly notified of donee's acceptance. AlejandroOrtiz died without issue in Capas, Tarlac, as a prisoner of war,during the last occupation by the Japanese.

It appears further that on August 14, 1941, the donor spousesexecuted another notarial deed of donation of the same property, infavor of Andres Basada, nephew of the donor Vicenta de Guerra,

subject to the condition that the donee would serve and take care ofthe donors until their death. This donation was also duly acceptedby the donee in the same instrument (Exh. 1-a).

In 1947, the first donee (Ortiz) filed revindicatory action againstthe second donee (Basada) alleging that in 1946, the latter enteredand usurped the land donated to and owned by them, and refusedto vacate the same. Basada claimed ownership of the land on theground that the donation in favor of the Ortizes had been revoked.The Court of First Instance of Samar upheld Basada's claim anddismissed the complaint, on the ground that the donees Ortiz hadabandoned the donors "to public mercy", with" most baseingratitude and highly condemnable heartlessness".Upon appeal to the Court of Appeals, the latter correctly held thatthe donation in favor of appellants Ortiz had been duly perfected inaccordance with law, and it should "stand until after its revocation

should have been asked and granted in the proper proceedings,"citing our decision in Ventura vs. Felix, 26 Phil. 500-503. It addedthat the subsequent donation of the property to Basada "is not,certainly, the way a prior donation should be r evoked."Nevertheless, the Court of Appeals upheld the dismissal of thecomplaint, holding that:"However, to all appearances, the donors in the instant case hadalways reserved for themselves the possession and use of theproperties donated. This may be inferred from the fact that theOrtizes were in possession of the land in question from the time itwas donated to them until the donors left t heir house, and that later,we believe, Basada took possession of it after the donation thereof

in his favor was signed and the donors went to live with him. Therecovery of possession of the land sought by plaintiffs is, therefore,premature because one of the donors in behalf of whom Basada isnow in occupancy of the property is still living. At least he should

have been included in the case to determine whether he really hadparted definitely not only with the ownership but also with the useand possession of the land."Dec. CA p. 9).We agree with the petitioners that the conclusion thus drawn isunwarranted. From the time the public instrument of donation

(Exh. D) was executed and acknowledged by donors and donees in1940, the latter acquired not only the ownership but also thepossession of the donated property, since the execution of a publicinstrument of conveyance is one of the recognized ways in whichdelivery (tradition) of lands may be made (Civ. Code of 1889, Art.1463; new Civil Code, Art. 1498), unless from the terms of the

deed, the contrary is expressed or inferable. In the present case, thedonation (Exh. D) is on its face absolute and unconditional,andnothing in its text authorizes us to conclude that it was limited tothe naked ownership of the land donated. Considering that underthe law, a donation of land by Public instrument is required toexpress the charges that the donee must assume (old Civil Code,

Art. 633; new Civil Code, Art. 749), the absence in the deed of anyexpress reservation of usufruct in favor of the donors is proof thatno such reservation was ever i ntended.The mere fact that the donors remain in the property after donatingit is susceptible of varied explanations and does not necessarilyimply that possession or usufruct was excluded from the donation.And the donees Ortiz having been vested with ownership andattendant possession since 1940, it is clear that the subsequentdonation of the property in favor of respondent Basada confered on

the latter no right whatever over the property as against the formerdonees.Wherefore, and without prejudice to any action of revocation that

may lawfully apertain to the donors, the decisions of the Court ofAppeals and of the Court of First Instance of Samar dismissing thecomplaint are hereby reversed, and the respondent Andres Basada

is sentenced to restore possesion to petitioners Cresencia andPacita Ortiz. The records of the case are ordered remanded to theCourt of origin for assessment of the damages suffered by thepetitioners. Cost against respondent Andres Basada.Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo,Labrador, and Concepcion, JJ., concur.Decision reversed.


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G.R. No. L-33849 August 18, 1977TEODORICO ALEJANDRO, IRENEO POLICARPIO,VIRGINIA ALEJANDRO, MARIA ALEJANDRO, SALUDALEJANDRO, EMILIA ALEJANDRO, FLORENCIOALEJANDRO and DIONISIA ALEJANDRO, petitioners,vs.

HON. AMBROSIO M. GERALDEZ, Presiding Judge, Court ofFirst Instance of Bulacan, Branch V, Sta. Maria, ANDREA DIAZand ANGEL DIAZ, respondents.

G.R. No. L-33968 August 18, 1977ANDREA DIAZ, petitioner,

vs.

HON. AMBROSIO M. GERALDEZ, in his capacity as PresidingJudge of the Court of First Instance of Bulacan, Branch V,TEODORICO ALEJANDRO, IRENEO POLICARPIO,

VIRGINIA ALEJANDRO, MARIA ALEJANDRO, EMILIAALEJANDRO, FLORENCIO ALEJANDRO and DIONISIAALEJANDRO, respondents.

Ponciano G. Hernandez for Teodorico Alejandro, et al.

Porfirio Villaroman for Andrea Diaz and Angel D iaz.

AQUINO. J.

This is a case about donations inter vivos and mortis causa . Thebone 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 C ertificate of Title No. 7336. Thefacts are as follows: On January 20, 1949 the spouses Gabino

(Gavino) Diaz and Severa Mendoza, their daughter-in-law ReginaFernando and their three children, Olimpia Diaz, Angel Diaz andAndrea Diaz, executed a deed of donation covering eight lots ofthe Lolomboy Friar Lands Estate, owned by the Diaz spouses,located at Barrio Parada, Sta. Maria, Bulacan. The deed reads asfollows:

KASULATAN NG PAGKAKALOOB (A DEED OFDONATION)

ALAMIN NG LAHAT NG MAKATUTUNGHAY NITO:

Ang pagkakaloob (donation) na ito, ginawa at pinagtibay dito samunicipio ng Sta. Maria, lalawigan ng Bulacan, Pilipinas, ngayongika 20 ng Enero, 1949, ng mag-asawang GABINO DIAZ atSEVERA MENDOZA, filipinos, may mga sapat na gulang,naninirahan sa nayon ng Parada, Sta. Maria, Bulacan na dito'ykinikilalang NAGKALOOB (DONORS), sa kapakanan nilaREGINA FERNANDO, filipina, may sapat na gulang, viuda;OLIMPIA DIAZ, filipina, may sapat na gulang, kasal kayTeodorico Alejandro, ANGEL DIAZ, filipino, may sapat nagulang, kasal kay Catalina Marcelo, at ANDREA DIAZ, filipina,may sapat na gulang, kasal kay Perfecto Marcelo, mga naninirahansa nayon ng Parada, Sta. Maria, Bulacan, na dito'y kinikilalang

PINAGKALOOBAN (DONEES).

PAGPAPATUNAY:

Na ang Nagkaloob (DONORS) ay siyang mayari, at kamayari atnamomosision sa kasalukuyan ng mga parcelang lupa kasama angmga kagalingan na nasa lugar ng Parada, Sta. Maria, Bulacan,mapagkikilala sa paraang mga sumusunod (description andstatements 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 nataglay 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 nabanggitna nagkakaloob sa pamamagitan ng kasulatang ito ng pagkakaloob(Donation) ay buong pusong inililipat at lubos na ibinibigay sanasabing pinagkakalooban ang lupang binabanggit at makikilala saunahan nito, laya sa ano mang sagutin at pagkakautang, katuladnito:

(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 ngmag-asawang Gabino Diaz at Severa Mendoza sa kanilang anak nasi Angel Diaz, kasal kay Catalina Marcelo; at ang ikalawang parte

(1/2) na nasa 'bandang silangan (East) ay ipinagkakaloob ng mag-asawang Gabino Diaz at Severa Mendoza sa kanilang anak na siAndrea Diaz, kasal kay Perfecto Marcelo."

(Note Some dispositions are not reproduced verbatim but aremerely 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 e qual shares.

(c) Lot No. 2377, TCT No. 10840, 1/3 to Angel Diaz, 1/3 toAndrea Diaz, and 1/3 "ay inilalaan o inihahanda ng mag-asawangGabino Diaz at Severa Mendoza sa kanilang sariling kapakanan o

mga gastos nila.

(d)Lot No. 2448, TCT No. 10997 to Olimpia Diaz sa condicionna pagkakalooban ni Olimpia Diaz si Crisanta de la Cruz, asawa niAlejandro - - - - - (sic) sakaling si Crisanta ay mamatay nghalagang isang daang piso (P100), bilang gastos sa libing."

(e) Na ang lupang-solar na sinasaysay sa Lote No. 4168 oTitulo No. 2051 (No. 5); lupang-bukid na sinasaysay sa Lote No.25?2 o Titulo No. 17960 (No. 6); at lupang-bukid na sinasaysay saLote No. 2521 o Titulo No. 17961 (No. 7) sa unahan nito ayinilalaan o inihahanda ng mag-asawang Gabino Diaz at Severa

Mendoza sa kanilang sariling kapakanan o mga gastos nila.

(f)Lot No. 2643, TCT No. 21453, to Regina Fernando and herchildren with the deceased Miguel Diaz in whose name the saidLot was already registered.

Na kaming mga pinagkakalooban (DONEES) na sila ReginaFernando, 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 angkagandahang loob at paglingap na ipinakita at ginawa ngnagkakaloob (Donors).

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

1. Ang mga Pinagkakalooban (Donatarios) na sila ReginaFernando, Olimpia Diaz, Angel Diaz, at Andrea Diaz, siyangnakaaalam sa mga gastos sa pagkakasakit at sa libing ng

NAGKALOOB (DONANTE);

2. Na ang mga Pinagkalooban (DONATARIOS) ay hindimaaaring makapagbili sa pangatlong tao ng nasabing mga pagaarisamantalang ang nagkaloob (Donante) ay buhay Datapwa't kungang pagbibiling gagawin ay upang malunasan ang mga gastos atmenitencion ng Nagkaloob (Donante) samakatuwid ang nasabingpagbibili ay matuwid;

3. Gayun din, samantalang kaming mag-asawang GabinoDiaz at Severa Mendoza ay buhay, patuloy ang amingpamamahala, karapatan, at pagkamay-ari sa mga nasabing pagaari

na sinasaysay sa unahan nito na pag-aari namin; ngunit sakalingkami ay bawian ng buhay ng Panginoong Dios at mamatay na angmga karapatan at pagkamay-ari ng bawa't Pinagkalooban

(Donatarios) sa bawa't pag-aari na nauukol sa bawa't isa ay maylubos na kapangyarihan."

SA KATUNAYAN NG LAHAT, linagdaan namin ang kasulatangito, dito sa Sta. Maria, Bulacan, ngayon ika 20 ng Enero, 1949, sapatibay ng dalawang sacsing kaharap. SignatureThumbmark Signature GABINO DIAZ SEVERAMENDOZA REGINA FERNANDO Thumbmark SignatureSignature OLIMPIA DIAZ ANGEL DIAZ ANDREA DIAZ

(Acknowledgment signed by Notary Celedonio Reyes is o mitted)

Gabino Diaz died in 1962. On October 20, 1964 Severa Mendozaand her two children, Andrea Diaz and Angel Diaz, executed adeed of donation denominated as "Kasulatan ng Pagbibigay naMagkakabisa Pagkamatay (Donation Mortis causa )" over one-halfof Lot No. 2377-A, which is a portion of Lot No. 2377 of theLolomboy Friar Lands Estate (which in turn is item 3 or [c] in the1949 deed of donation already mentioned).

In that deed of donation, Severa Mendoza donated to Andrea Diazher one-half share in Lot 2377-A, which one-half share isIdentified as Lot 2377-A-1, on condition that Andrea Diaz wouldbear 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 orLot No. 2377-A-2 was previously adjudicated to Angel Diaz


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because he defrayed the funeral expenses on the occasion of thedeath of Gabino Diaz.

On May 12, 1970 Andrea Diaz sued her brother, Angel Diaz, in theCourt of First Instance of Bulacan, Sta. Maria Branch V for thepartition of Lots Nos. 2377-A and 2502 (Civil Case No. SM-357).

Teodorico Alejandro, the surviving spouse of Olimpia Diaz, andtheir children intervened in the said case. They claimed one-thirdof Lot No. 2502. Angel Diaz alleged in his answer that he had.been occupying his share of Lot No. 2502 "for more than twentyyears". The intervenors claimed that the 1949 donation was a voidmortis causa disposition.

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

The trial court in its decision of June 30, 1971 held that the saiddeed of donation was a donation mortis causa because theownership of the properties donated did not pass to the doneesduring 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 equalparts between Angel Diaz and Andrea Diaz on the theory that the

said deed of donation was effective "as an extra-judicial partitionamong the parents and their children. Consequently, the Alejandrointervenors were not given any share in Lot No. 2502. Angel Diaz

and the intervenors were ordered to pay Andrea Diaz "attorney'sfees of P1,000 each or a total of P2,000".

The Alejandro intervenors filed a motion for reconsideration, OnJuly 16, 1971 the trial court denied that motion but eliminated theattorney's fees.

Andrea Diaz and the Alejandro intervenors filed separate appealsto this Court under Republic Act No. 5440. Andrea Diaz contendsthat the 1949 deed of donation is a valid donation inter vivos andthat the trial court erred in deleting the award for attorney's fees.The Alejandro intervenors contend that the said donation is mortiscausa ; that they are entitled to a one-third share in Lot No, 2502,and that the trial court erred in characterizing the deed as a validpartition. In the ultimate analysis, the appeal involves the issue of

whether the Alejandro intervenors should be awarded one-third ofLot No. 2502, or 1,892 square meters thereof, as intestate heirs ofthe Diaz spouses.

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

ART. 728. Donations which are to take effect upon the death of thedonor partake of the nature of t estamentary provisions, and shall begoverned by the rules established in the Title on Succession. (6 20).

ART. 729. When the donor intends that the donation shall takeeffect during the lifetime of the donor, though the property shallnot be delivered till after the donor's death, this shall be a donationinter vivos. The fruits of the property from the time of theacceptance of the donation, shall pertain to the donee, unless thedonor provides otherwise. (n)

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

ART. 731. When a person donates something subject to t heresolutory condition of the donor's survival, there is a donationinter vivos. (n)

ART. 732. Donations which are to take effect inter vivos shall begoverned 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 tohave some familiarization with the distinctions between donationsinter vivos and mortis causa because the Code prescribes differentformalities for the two kinds of donations. An utter vivos donationof real property must be evidenced by a public document andshould be accepted by the donee in the same deed of donation or in

a separate instrument. In the latter case, the donor should benotified of the acceptance in an authentic form and that step shouldbe 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 calleddonation mortis causa . It is in reality a legacy (5 Manresa, CodigoCivil, 6th Ed., p. 107). If not embodied in a valid will, the donationis void (Narag vs. Cecilio, 109 Phil. 299; Aznar vs. Sucilla 102Phil. 902; Tuazon vs. Posadas, 54 Phil. 289; Serrano vs. Solomon,105 Phil. 998, 1002).

This Court advised notaries to apprise donors of the necessity ofclearly specifying whether, notwithstanding the donation, theywish to retain the right to control and dispose at will of theproperty before their death, without the consent or intervention ofthe beneficiary, since the reservation of such right would be a

conclusive indication that the transfer' would be effective only atthe donor's death, and, therefore, the formalities of testamentsshould be observed; while, a converso, the express waiver of theright of free disposition would place the inter vivos character of thedonation beyond dispute (Cuevas vs. Cuevas, 98 P hil. 68,72).

From the aforequoted articles 728 to 732, it is evident that it is thetime of effectivity (aside from the form) which distinguishes adonation inter vivos from a donation mortis causa . And theeffectivity is determined by the time when the full or nakedownership (dominum plenum or dominium directum) of thedonated properties is transmitted to the donees. (See Lopez vs.

Olbes, 15 Phil. 540; Gonzales and Fuster Fabra vs. GonzalesMondragon, 35 Phil. 105). The execution of a public instrument isa mode of delivery or tradition (Ortiz vs. Court of Appeals, 97Phil. 46).

If the donation is made in contemplation of the donor's death,meaning that the full or naked ownership of the donated propertieswill pass to the donee only because of the donor's death, then it isat that time that the donation takes effect, and it is a donationmortis 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 orindependently of the donor's death, meaning that the full or nakedownership (nuda proprietas) ) of the donated properties passes tothe donee during the donor's lifetime, not by reason of his deathbut because of the deed of donation, then the donation is inter

vivos (Castro vs. Court of Appeals, L-20122, April 28, 1969, 27SCRA 1076).

The effectivity of the donation should be ascertained from the deedof 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 accruedimmediately upon the effectivity of the instrument and not uponthe donor's death, the donation is inter vivos (Kiene vs. Collectorof Internal Revenue, 97 Phil. 352).

There used to be a prevailing notion, spawned by a study ofRoman Law, that the Civil Code recognizes a donation mortis as ajuridical act in contraposition to a donation inter vivos. Thatimpression persisted because the implications of article 620 of the

Spanish Civil Code, now article 728, that "las donaciones quehayan de producir sus efectos pro muerte del donante participan dela naturaleza de las disposiciones de ultima voluntad, y se regiran

por las reglas establecidas en el capitulo de la sucesiontestamentaria" had not been

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