DEL ROSARIO v. FERRER
G.R. No. 187056 September 20, 2010
On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a
document entitled “DonationMortis Causa” 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 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.
Although denominated as a donation mortis causa, which in law is the equivalent
of a will, the deed had no attestation clause and was witnessed by only two persons.
The named donees, however, signified their acceptance of the donation on the face of
the document.
Guadalupe, the donor wife, died in September 1968. A few months later or on
December 19, 1968, Leopoldo, the donor husband, executed a deed of assignment of
his rights and interests in subject property to their daughter Asuncion. Leopoldo died in
June 1972.
In 1998 Jarabini filed a “petition for the probate of the August 27, 1968 deed of
donation mortis causa” before the Regional Trial Court (RTC) of Manila in Sp. Proc. 98-
90589. Asuncion opposed the petition, invoking his father Leopoldo’s assignment of his
rights and interests in the property to her.
ISSUE: Whether or not the spouses’ donation to Asuncion, Emiliano, and Jarabini was
a donation mortis causa, as it was denominated, or in fact a donation inter vivos.
The donation was inter vivos. That the document in question in this case was
captioned “Donation Mortis Causa” is not controlling. The 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.
In Austria-Magat v. Court of Appeals, the Court held that “irrevocability” is a
quality absolutely incompatible with the idea of conveyances mortis causa, where “revocability” is precisely the essence of the act. A donation mortis causa has the following characteristics:
1. It conveys no title or ownership to the transferee before the death of the
transferor; or, what amounts to the same thing, that the transferor should retain
the ownership (full or naked) and control of the property while alive;
2. That before his death, the transfer should be revocable by the transferor at
will, ad nutum; but revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties conveyed; and
3. That the transfer should be void if the transferor should survive the
transferee.
The Court thus said in Austria-Magat that the express “irrevocability” of the
donation is the “distinctive standard that identifies the document as a
donation inter vivos.” Here, the donors plainly said that it is “our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the surviving spouse.” The intent to make the donation irrevocable becomes even clearer by the proviso that a surviving donor shall respect the irrevocability of the donation. Consequently, the donation was in reality a donation inter vivos.
The donors in this case of course reserved the “right, ownership, possession,
and administration of the property” and made the donation operative upon their death.
But this Court has consistently held that such reservation (reddendum) in the
context of an irrevocable donation simply means that the donors parted with their naked title, maintaining only beneficial ownership of the donated property while they lived.
Notably, the three donees signed their acceptance of the donation, which
acceptance the deed required. 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.
Finally, as Justice J. B. L. Reyes said in Puig v. Peñaflorida, in case of doubt,
the conveyance should be deemed a donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed.
Since the donation in this case was one made inter vivos, it was immediately
operative and final. The reason is that such kind of donation is deemed perfected from
the moment the donor learned of the donee’s acceptance of the donation. The
acceptance makes the donee the absolute owner of the property donated
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.
