SECOND DIVISION

[G.R. No. 187056. September 20, 2010.]

JARABINI G. DEL ROSARIO , petitioner, vs . ASUNCION G. FERRER,

substituted by her heirs, VICENTE, PILAR, ANGELITO, FELIXBERTO,
JR., all surnamed G. FERRER, and MIGUELA FERRER ALTEZA ,
respondents.

DECISION

ABAD , J : p

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. IDTcHa

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,
Manila 2 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, signi ed 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 led a "petition for the probate of the August 27, 1968 deed of
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 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. HITAEC

After trial, the RTC rendered a decision dated June 20, 2003, 5 nding 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. 1 0
In Austria-Magat v. Court of Appeals , 1 1 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;
EDSAac

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. 1 2 (Underscoring supplied)

The Court thus said in Austria-Magat that the express "irrevocability" of the
donation is the "distinctive standard that identi es 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
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 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. 1 3
Notably, the three donees signed their acceptance of the donation, which
acceptance the deed required. 1 4 This Court has held that an acceptance clause
indicates that the donation is inter vivos, since acceptance is a requirement only for
such kind of donations. Donations mortis causa, being in the form of a will, need not be
accepted by the donee during the donor's lifetime. 1 5
Finally, as Justice J. B. L. Reyes said in Puig v. Peñaflorida, 1 6 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 nal. 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. 1 7
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. 1 8 SaIHDA

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 in exible and absolute. 1 9 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 .
Carpio, Peralta, Bersamin * and Perez, ** JJ., concur.

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.
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 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.

9. Rollo, p. 66.
10. Concepcion v. Concepcion, 91 Phil. 823, 828 (1952).

11. 426 Phil. 263 (2002).

12. Aluad v. Aluad, G.R. No. 176943, October 17, 2008, 569 SCRA 697, 705-706.

13. Austria-Magat v. Court of Appeals, supra note 11, at 274; Spouses Gestopa v. Court of
Appeals, 396 Phil. 262, 271 (2000); Alejandro v. Judge Geraldez , 168 Phil. 404, 420-421
(1977); Cuevas v. Cuevas , 98 Phil. 68, 71 (1955); Bonsato v. Court of Appeals , 95 Phil.
481, 488 (1954).
14. Rollo, p. 101.

15. Austria-Magat v. Court of Appeals, supra note 11, at 276-277.

16. 122 Phil. 665, 672 (1965).

17. Heirs of Sevilla v. Sevilla, 450 Phil. 598, 613 (2003).

18. Gochan & Sons Realty Corp. v. Heirs of Raymundo Baba, 456 Phil. 569, 579 (2003).
19. Reyes v. Court of Appeals, 346 Phil. 266, 273 (1997).

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