Posted by: Elmer Brabante | June 17, 2008

Cases in Succession

Pascual vs. Francisco-Alfonso G.R. No. 138774.  March 8, 2001

May a legitimate daughter be deprived of her share in the estate of her deceased father by a simulated contract transferring the property of her father to his illegitimate children?

Respondent Aida Francisco-Alfonso (hereafter Aida) is the only daughter of spouses Gregorio Francisco and Cirila de la Cruz, who are now both deceased.

Petitioners, on the other hand, are daughters of the late Gregorio Francisco with his common law wife Julia Mendoza, with whom he begot seven (7) children.

Gregorio Francisco (hereafter Gregorio) owned two parcels of residential land, situated in Barangay Lolomboy, Bocaue, Bulacan, covered by TCT Nos. T-32740 and T-117160.  When Gregorio was confined in a hospital in 1990, he confided to his daughter Aida that the certificates of title of his property were in the possession of Regina Francisco and Zenaida Pascual.

After Gregorio died on July 20, 1990, Aida inquired about the certificates of title from her half sisters.  They informed her that Gregorio had sold the land to them on August 15, 1983.  After verification, Aida learned that  there  was  indeed a deed of absolute sale in favor of Regina Francisco and Zenaida Pascual.  Thus, on August 15, 1983, Gregorio  executed a “Kasulatan sa Ganap na Bilihan, whereby for P25,000.00, he sold the two parcels of land to Regina Francisco and Zenaida Pascual.  By virtue of the sale, the Register of Deeds of Bulacan issued TCT No. T-59.585 to Regina Francisco and TCT T-59.586 to Zenaida Pascual.

On April 1, 1991, Aida filed with the Regional Trial Court, Bulacan a complaint against petitioners for annulment of sale with damages. She alleged that the signature of her late father, Gregorio Francisco, on the Kasulatan sa Ganap na Bilihan dated August 15, 1983, was a forgery.

In their joint answer to the complaint, petitioners denied the alleged forgery or simulation of the deed of sale.  After due proceedings, on July 21, 1994, the trial court rendered a decision dismissing the complaint.  The dispositive portion reads:

“WHEREFORE, on the basis of the evidence adduced and the law applicable  thereon,  the  Court hereby renders judgment:

“a) sustaining the validity of the “Kasulatan Sa Ganap Na Bilihan” executed on 15 August 1993 by the late Gregorio Francisco in favor of the defendants;

“b) affirming the validity of the Transfer Certificates of Title No. T-59.585 issued to defendant Regina Francisco and No. T-59.386 issued to defendant Zenaida Pascual; and

“c) dismissing the complaint as well as the defendants’ counterclaim for damages and attorney’s fees for lack of merit.”

In time, respondent Alfonso appealed to the Court of Appeals.

After due proceedings, on April 30, 1999, the Court of Appeals promulgated its decision reversing that of the trial court, the dispositive portion of which reads:

“WHEREFORE, the Decision dated July 21, 1994 of the court a quo is REVERSED and SET ASIDE and another rendered as follows:

“1. The Kasulatan Sa Ganap na Bilihan dated August 15, 1983 is declared null and void from the beginning and TCT Nos. T-59.585 (M) and T-59-586 (M), both of the Registry of Deeds of Bulacan (Meycauayan Branch) in the names of Regina Francisco and Zenaida Pascual, respectively, are annulled and cancelled;

“2. The Register of Deeds of Bulacan (Meycauayan Branch) is ordered to cancel the aforementioned TCT Nos. T-59.585 (M) and T-59.586 (M) and to reinstate Transfer Certificates of Title Nos. T-132740 and T-117160 both in the name of Gregorio Francisco.

“3. Defendants-appellees Regina Francisco and Zenaida Pascual jointly and solidarily are ordered to pay plaintiff-appellant Alfonso the amount of P5,000.00 as moral damages, P5,000.00 as exemplary damages and P5,000.00 as attorney’s fees.

“4. The counterclaim of defendants-appellees is dismissed for lack of merit.

“Costs of suit against said defendants-appellees.”

Hence, this petition.

The main issue raised is whether the Supreme Court may review the factual findings of the appellate court.  The jurisdiction of this Court in cases brought before it from the Court of Appeals under Rule 45 of the Revised Rules of Court is limited to review of pure errors of law.  It is not the function of this Court to analyze or weigh evidence all over again, unless there is a showing that the findings of the lower court are totally devoid of support or are glaringly erroneous as to constitute grave abuse of discretion

We affirm the decision of the Court of Appeals because:

First:  The kasulatan was simulated.  There was no consideration for the contract of sale.  Felicitas de la Cruz, a family friend of the Franciscos, testified that Zenaida Pascual and Regina Francisco did not have any source of income in 1983, when they bought the property, until the time when Felicitas testified in 1991.

As proof of income, however, Zenaida Pascual testified that she was engaged in operating a canteen, working as cashier in Mayon Night Club as well as buying and selling RTW (Ready to Wear) items in August of 1983 and prior thereto.

Zenaida alleged that she paid her father the amount of P10,000.00.  She did not withdraw money from her bank account at the Rural Bank of Meycauayan, Bulacan, to pay for the property.  She had personal savings other than those deposited in the bank.  Her gross earnings from the RTW for three years was P9,000.00, and she earned P50.00 a night at the club.

Regina Francisco, on the other hand, was a market vendor, selling nilugaw, earning a net income of P300.00 a day in 1983.  She bought the property from the deceased for P15,000.00. She had no other source of income.

We find it incredible that engaging in buy and sell could raise the amount of P10,000.00, or that earnings in selling goto could save enough to pay P15,000.00, in cash for the land.

The testimonies of petitioners were incredible considering their inconsistent statements as to whether there was consideration for the sale and also as to whether the property was bought below or above its supposed market value.  They could not even present a single witness to the kasulatan that would prove receipt of the purchase price.

Since there was no cause or consideration for the sale, the same was a simulation and hence, null and void.

Second:  Even if the kasulatan was not simulated, it still violated the Civil Code provisions insofar as the transaction affected respondent’s legitime.  The sale was executed in 1983, when the applicable law was the Civil Code, not the Family Code.

Obviously, the sale was Gregorio’s way to transfer the property to his illegitimate daughters at the expense of his legitimate daughter.  The sale was executed to prevent respondent Alfonso from claiming her legitime and rightful share in said property.  Before his death, Gregorio had a change of heart and informed his daughter about the titles to the property.

According to Article 888, Civil Code:

“The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.

“The latter may freely dispose of the remaining half subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.”

Gregorio Francisco did not own any other property.  If indeed the parcels of land involved were the only property left by their father, the sale in fact would deprive respondent of her share in her father’s estate.  By law, she is entitled to half of the estate of her father as his only legitimate child.

The legal heirs of the late Gregorio Francisco must be determined in proper testate or intestate proceedings for settlement of the estate.  His compulsory heir can not be deprived of her share in the estate save by disinheritance as prescribed by law.


Heirs of Spouses Sandejas Sr. vs. Lina
G.R. No. 141634.
February 5, 2001

A contract of sale is not invalidated by the fact that it is subject to probate court approval.  The transaction remains binding on the seller-heir, but not on the other heirs who have not given their consent to it.  In settling the estate of the deceased, a probate court has jurisdiction over matters incidental and collateral to the exercise of its recognized powers.  Such matters include selling, mortgaging or otherwise encumbering realty belonging to the estate.  Rule 89, Section 8 of the Rules of Court, deals with the conveyance of real property contracted by the decedent while still alive.  In contrast with Sections 2 and 4 of the same Rule, the said provision does not limit to the executor or administrator the right to file the application for authority to sell, mortgage or otherwise encumber realty under administration.  The standing to pursue such course of action before the probate court inures to any person who stands to be benefited or injured by the judgment or to be entitled to the avails of the suit.

Petitioners argue that the CA erred in ordering the conveyance of the disputed 3/5 of the parcels of land, despite the nonfulfillment of the suspensive condition — court approval of the sale — as contained in the “Receipt of Earnest Money with Promise to Sell and to Buy” (also referred to as the “Receipt”).  Instead, they assert that because this condition had not been satisfied, their obligation to deliver the disputed parcels of land was converted into a money claim.

We disagree.  Petitioners admit that the agreement between the deceased Eliodoro Sandejas Sr. and respondent was a contract to sell.  Not exactly.  In a contract to sell, the payment of the purchase price is a positive suspensive condition.  The vendor’s obligation to convey the title does not become effective in case of failure to pay.

On the other hand, the agreement between Eliodoro Sr. and respondent is subject to a suspensive condition — the procurement of a court approval, not full payment.  There was no reservation of ownership in the agreement.  In accordance with paragraph 1 of the Receipt, petitioners were supposed to deed the disputed lots over to respondent.  This they could do upon the court’s approval, even before full payment.  Hence, their contract was a conditional sale, rather than a contract to sell as determined by the CA.

When a contract is subject to a suspensive condition, its birth or effectivity can take place only if and when the condition happens or is fulfilled. Thus, the intestate court’s grant of the Motion for Approval of the sale filed by respondent resulted in petitioners’ obligation to execute the Deed of Sale of the disputed lots in his favor.  The condition having been satisfied, the contract was perfected.  Henceforth, the parties were bound to fulfill what they had expressly agreed upon.

Court approval is required in any disposition of the decedent’s estate per Rule 89 of the Rules of Court.  Reference to judicial approval, however, cannot adversely affect the substantive rights of heirs to dispose of their own pro indiviso shares in the co-heirship or co-ownership. In other words, they can sell their rights, interests or participation in the property under administration.  A stipulation requiring court approval does not affect the validity and the effectivity of the sale as regards the selling heirs.  It merely implies that the property may be taken out of custodia legis, but only with the court’s permission. It would seem that the suspensive condition in the present conditional sale was imposed only for this reason.

Probate jurisdiction covers all matters relating to the settlement of estates (Rules 74 & 86-91) and the probate of wills (Rules 75-77) of deceased persons, including the appointment and the removal of administrators and executors (Rules 78-85).  It also extends to matters incidental and collateral to the exercise of a probate court’s recognized powers such as selling, mortgaging or otherwise encumbering realty belonging to the estate.  Indeed, the rules on this point are intended to settle the estate in a speedy manner, so that the benefits that may flow from such settlement may be immediately enjoyed by the heirs and the beneficiaries.

Petitioners’ computation is correct.  The CA computed Eliodoro’s share as an heir based on one tenth of the entire disputed property.  It should be based only on the remaining half, after deducting the conjugal share.

Succession laws and jurisprudence require that when a marriage is dissolved by the death of the husband or the wife, the decedent’s entire estate – under the concept of conjugal properties of gains — must be divided equally, with one half going to the surviving spouse and the other half to the heirs of the deceased.  After the settlement of the debts and obligations, the remaining half of the estate is then distributed to the legal heirs, legatees and devices.


Liyao Jr vs Tanhoti-Liyao
G.R. No. 138961
March 7, 2002

On November 29,1976, William Liyao, Jr., represented by his mother Corazon G. Garcia, filed Civil Case No. 24943 before the RTC of Pasig, Branch 167 which is an action for compulsory recognition as “the illegitimate (spurious) child of the late William Liyao” against herein respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao. The complaint was later amended to include the allegation that petitioner “was in continuous possession and enjoyment of the status of the child of said William Liyao,” petitioner having been “recognized and acknowledged as such child by the decedent during his lifetime.”

It must be stated at the outset that both petitioner and respondents have raised a number of issues which relate solely to the sufficiency of evidence presented by petitioner to establish his claim of filiation with the late William Liyao. Unfortunately, both parties have consistently overlooked the real crux of this litigation: May petitioner impugn his own legitimacy to be able to claim from the estate of his supposed father, William Liyao?

We deny the present petition.

Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be legitimate. The presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded in a policy to protect innocent offspring from the odium of illegitimacy.

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code provides:

Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

1) By the impotence of the husband;

2) By the fact that husband and wife were living separately in such a way that access was not possible;

3) By the serious illness of the husband.

Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years from her husband, Ramon Yulo, at the time that she cohabited with the late William Liyao and it was physically impossible for her to have sexual relations with Ramon Yulo when petitioner was conceived and born. To bolster his claim, petitioner presented a document entitled, “Contract of Separation,” executed and signed by Ramon Yulo indicating a waiver of rights to any and all claims on any property that Corazon Garcia might acquire in the future.

The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the time petitioner was conceived and born is of no moment. While physical impossibility for the husband to have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code. Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved. It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none – even his heirs – can impugn legitimacy; that would amount o an insult to his memory.

It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of the then minor, herein petitioner, to compel recognition by respondents of petitioner William Liyao, Jr, as the illegitimate son of the late William Liyao cannot prosper. It is settled that a child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress. We cannot allow petitioner to maintain his present petition and subvert the clear mandate of the law that only the husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting marriage. The child himself cannot choose his own filiation. If the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mother’s alleged paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully defeated the presumption.

Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with Ramon Yulo, in testifying for herein petitioner amount to impugnation of the legitimacy of the latter?

We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are allowed to contest the legitimacy of the child. There is nothing on the records to indicate that Ramon Yulo has already passed away at the time of the birth of the petitioner nor at the time of the initiation of this proceedings. Notably, the case at bar was initiated by petitioner himself through his mother, Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled that the legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties and within the period limited by law.

Considering the foregoing, we find no reason to discuss the sufficiency of the evidence presented by both parties on the petitioner’s claim of alleged filiation with the late William Liyao. In any event, there is no clear, competent and positive evidence presented by the petitioner that his alleged father had admitted or recognized his paternity.

Eceta vs. Eceta G.R. No. 157037, May 20, 2004


We note Rosalina’s attempt to mislead the Court by representing that this case is one for compulsory recognition, partition and accounting with damages. Notably, what was filed and tried before the trial court and the Court of Appeals is one for partition and accounting with damages only.  The filiation, or compulsory recognition by Vicente Eceta of Maria Theresa, was never put in issue.  In fact, both parties have already agreed and admitted, as duly noted in the trial court’s pre-trial order, that Maria Theresa is Rosalina’s granddaughter.

Notwithstanding, Maria Theresa successfully established her filiation with Vicente by presenting a duly authenticated birth certificate. Vicente himself signed Maria Theresa’s birth certificate thereby acknowledging that she is his daughter.  By this act alone, Vicente is deemed to have acknowledged his paternity over Maria Theresa, thus:

The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.  In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws.  The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgement of the child, and no further court action is required.  In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval.

Speed Distributing Corp vs. CA G.R. No. 149351.  March 17, 2004

To determine whether a case involves an intra-corporate controversy, and is to be heard and decided by the Branches of the RTC specifically designated by the Court to try and decide such cases, two elements must concur: (a) the status or relationship of the parties; and (2) the nature of the question that is the subject of their controversy.

The first element requires that the controversy must arise out of intra-corporate or partnership relations between any or all of the parties and the corporation, partnership or association of which they are stockholders, members or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation, partnership or association and the State insofar as it concerns their individual franchises. The second element requires that the dispute among the parties be intrinsically connected with the regulation of the corporation. If the nature of the controversy involves matters that are purely civil in character, necessarily, the case does not involve an intra-corporate controversy. The determination of whether a contract is simulated or not is an issue that could be resolved by applying pertinent provisions of the Civil Code.

In the present recourse, it is clear that the private respondent’s complaint in the RTC is not an intra-corporate case.  For one thing, the private respondent has never been a stockholder of Leslim, or of Speed for that matter.  The complaint is one for the nullification of the deed of absolute sale executed by Leslim in favor of Speed over the property covered by TCT No. T-36617 in the name of Leslim, the cancellation of TCT No. T-116716 in the name of Speed, as well as the Secretary’s Certificate dated August 22, 1994. The private respondent alleged that since her deceased husband, Pastor Lim, acquired the property during their marriage, the said property is  conjugal in nature, although registered under the name of Leslim under TCT No. T-36617. She asserted that the petitioners connived to deprive the estate of Pastor Lim and his heirs of their possession and ownership over the said property using a falsified Secretary’s Certificate stating that the Board of Directors of Leslim had a meeting on August 19, 1995, when, in fact, no such meeting was held.  Petitioner Lita Lim was never a stockholder of Leslim or a member of its Board of Directors; her husband, petitioner Ireneo Marcelo was the Vice-President of Speed; and, petitioner Pedro Aquino was Leslim’s corporate secretary.  The private respondent further averred that the amount of P3,900,000.00,  the purchase price of the property under the deed of absolute sale, was not paid to Leslim, and that petitioners Spouses Marcelo and petitioner Pedro Aquino contrived the said deed to consummate their devious scheme and chicanery.  The private respondent concluded that the Deed of Absolute Sale was simulated; hence, null and void.

We are convinced that on the basis of the material allegations of the complaint, the court a quo had jurisdiction over the case.

Rule 3, Section 2 of the Rules of Court, as amended, provides as follows:

SEC. 2. Parties in interest.— A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

The private respondent filed the complaint as one of the heirs of Pastor Lim, who died intestate on June 11, 1994. She was, in fact, the surviving spouse of the deceased, a compulsory heir by operation of law.  The general rule under the law on succession is that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called upon to succeed by operation of law to the inheritance without the need of further proceedings.  Under Article 776 of the New Civil Code, inheritance includes all the properties, rights and obligations of a party, not extinguished by his death. Although the private respondent was appointed by the probate court as a special administratrix of the estate of Pastor Lim, she had the right, apart from her being a special administratrix, to file the complaint against the petitioners for the nullification of the deed of absolute sale, and TCT Nos. T-36617 and T-116716. Indeed, iEmnace vs. Court of Appeals, we held that:

On the third issue, petitioner asserts that the surviving spouse of Vicente Tabanao has no legal capacity to sue since she was never appointed as administratrix or executrix of his estate. Petitioner’s objection in this regard is misplaced. The surviving spouse does not need to be appointed as executrix or administratrix of the estate before she can file the action. She and her children are complainants in their own right as successors of Vicente Tabanao. From the very moment of Vicente Tabanao’s death, his rights insofar as the partnership was concerned were transmitted to his heirs, for rights to the succession are transmitted from the moment of death of the decedent.

Whatever claims and rights Vicente Tabanao had against the partnership and petitioner were transmitted to respondents by operation of law, more particularly by succession, which is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person are transmitted. Moreover, respondents became owners of their respective hereditary shares from the moment Vicente Tabanao died.

A prior settlement of the estate, or even the appointment of Salvacion Tabanao as executrix or administratrix, is not necessary for any of the heirs to acquire legal capacity to sue.  As successors who stepped into the shoes of their decedent upon his death, they can commence any action originally pertaining to the decedent. From the moment of his death, his rights as a partner and to demand fulfillment of petitioner’s obligations as outlined in their dissolution agreement were transmitted to respondents. They, therefore, had the capacity to sue and seek the court’s intervention to compel petitioner to fulfill his obligations.

In her complaint, the private respondent sought the nullification of the Deed of Absolute Sale executed by Leslim Corporation in favor of Speed, as well as TCT No. T-36617 under its name. Thus, Leslim Corporation is an indispensable party, and should be impleaded as a party-defendant conformably to Section 7, Rule 3 of the Rules of Court, as amended.

SEC. 7. Compulsory joinder of indispensable parties.— Parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants.

As Leslim Corporation was a party to the deed, its interests in the subject of the action and the outcome thereof is such that the trial court could not proceed without its presence.  All actuations of the trial court subsequent to the filing of the complaint are null and void, not only as to Leslim Corporation, but also as to the present parties. All the compulsory heirs of the deceased must also be impleaded as plaintiffs, being indispensable parties. Thus, the private respondent needs to amend her complaint in the court a quo to include all indispensable parties; otherwise, her claim would be dismissed.

Manongsong vs. Estimo
G. R. No. 136773.
June 25, 2003

We likewise find no basis for the trial court’s declaration that the sale embodied in the Kasulatan deprived the compulsory heirs of Guevarra of their legitimes.  As opposed to a disposition inter vivos by lucrative or gratuitous title, a valid sale for valuable consideration does not diminish the estate of the seller.  When the disposition is for valuable consideration, there is no diminution of the estate but merely a substitution of values, that is, the property sold is replaced by the equivalent monetary consideration. 

Under Article 1458 of the Civil Code, the elements of a valid contract of sale are: (1) consent or meeting of the minds; (2) determinate subject matter and (3) price certain in money or its equivalent. The presence of these elements is apparent on the face of the Kasulatan itself.  The Property was sold in 1957 for P250.00.

If Navarro were not the mother of Guevarra, it would only further undermine petitioners’ case.  Absent any hereditary relationship between Guevarra and Navarro, the Property would not have passed from Navarro to Guevarra, and then to the latter’s children, including petitioners, by succession.  There would then be no basis for petitioners’ claim of co-ownership by virtue of inheritance from Guevarra.  On the other hand, this would not undermine respondents’ position since they anchor their claim on the sale under the Kasulatan and not on inheritance from Guevarra.

Since the notarized Kasulatan is evidence of greater weight which petitioners failed to refute by clear and convincing evidence, this Court holds that petitioners were not able to prove by preponderance of evidence that the Property belonged to Guevarra’s estate.  There is therefore no legal basis for petitioners’ complaint for partition of the Property.

Maglasang vs. Heirs of Cabatingan G.R. No. 131953.  June 5, 2002

On February 17, 1992, Conchita Cabatingan executed in favor of her brother, petitioner Nicolas Cabatingan, a “Deed of Conditional of Donation (sic) Inter Vivos for House and Lot” covering one-half (½) portion of the former’s house and lot located at Cot-cot, Liloan, Cebu. Four (4) other deeds of donation were subsequently executed by Conchita Cabatingan on January 14, 1995, bestowing upon: (a) petitioner Estela C. Maglasang, two (2) parcels of land – one located in Cogon, Cebu (307 sq. m.) and the other, a portion of a parcel of land in Masbate (50,232 sq. m.); (b) petitioner Nicolas Cabatingan, a portion of a parcel of land located in Masbate (80,000 sq. m.); and (c) petitioner Merly S. Cabatingan, a portion of the Masbate property (80,000 sq. m.). These deeds of donation contain similar provisions, to wit:

“That for and in consideration of the love and affection of the DONOR for the DONEE, x  x  x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect; x  x  x” (Emphasis Ours)

On May 9, 1995, Conchita Cabatingan died.

Respondents allege, inter alia, that petitioners,  through their sinister machinations and strategies and taking advantage of Conchita Cabatingan’s fragile condition, caused the execution of the deeds of donation, and, that the documents are void for failing to comply with the provisions of the Civil Code regarding formalities of wills and testaments, considering that these are donations mortis causa. Respondents prayed that a receiver be appointed in order to preserve the disputed properties, and, that they be declared as co-owners of the properties in equal shares, together with petitioner Nicolas Cabatingan.

Petitioners insist that the donations are inter vivos donations as these were  made by the late  Conchita Cabatingan  “in consideration  of  the  love and affection of the donor” for the donee, and there is nothing in the deeds which indicate that the donations were made in consideration of Cabatingan’s death. In addition, petitioners contend that the stipulation on rescission in case petitioners die ahead of Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos.

Petitioners’ arguments are bereft of merit.

In a donation mortis causa, “the right of disposition is not transferred to the donee while the donor is still alive.” In determining whether a donation is one of mortis causa, the following characteristics must be taken into account:

(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.

In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan’s death. The phrase “to become effective upon the death of the DONOR” admits of no other interpretation but that Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime. 

We held in Meimban case that the donation is a mortis causa donation, and that the above quoted provision establishes the donor’s intention to transfer the ownership and possession of the donated property to the donee only after the former’s death. Further:

“As the donation is in the nature of a  mortis causa disposition, the formalities of a will should have been complied with under Article 728 of the Civil Code, otherwise, the donation is void and would produce no effect.  As we have held in Alejandro v. Geraldez (78 SCRA 245,253), “If the donation is made in contemplation of the donor’s death, meaning that the full or naked ownership of the donated properties will pass to the donee because of the donor’s death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be embodied in a last will and testament.  (Citing Bonsato v. Court of Appeals, 95 Phil. 481).”

one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee.  This is exactly what Cabatingan provided for in her donations.  If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated be transferrred to the donee or independently of, and not by reason of her death, she would have not expressed such proviso in the subject deeds.

Considering that the disputed donations are donations mortis causa, the same partake of the nature of testamentary provisions and as such, said deeds must be executed in accordance with the requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil Code, to wit:

“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. (n)

ART. 806.  Every will must be acknowledged before a notary public by the testator and the witnesses.  The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (n)”

The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were not executed in the manner provided for under the above-quoted provisions of law.

Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void.



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