G.R. No.

131953

June 5, 2002

MA. ESTELA MAGLASANG, NICOLAS CABATINGAN and MERLY S. CABATINGAN, petitioners, vs. THE HEIRS OF CORAZON CABATINGAN, namely, LUZ M. BOQUIA, PERLA M. ABELLA, ESTRELLA M. CAETE, LOURDES M. YUSON, and JULIA L. MAYOL, HEIRS OF GENOVIVA C. NATIVIDAD namely, OSCAR C. NATIVIDAD, OLGA NATIVIDAD, ODETTE NATIVIDAD, OPHELIA NATIVIDAD, RICHARD NATIVIDAD, RAYMUND NATIVIDAD, RICHIE NATIVIDAD, SONIA NATIVIDAD and ENCARNACION CABATINGAN VDA. DE TRINIDAD, ALFREDO CABATINGAN and JESUSA C. NAVADA, respondents. AUSTRIA-MARTINEZ, J.: Posed for resolution before the Court in this petition for review on certiorari filed under Rule 45 of the Rules of Court is the sole issue of whether the donations made by the late Conchita Cabatingan are donations inter vivos or mortis causa. The facts of the case are as follows:

"WHEREREFORE, and in consideration of all the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendant and unwilling coplaintiff with regards (sic) to the four Deeds of Donation Annexes "A", "A-1", "B" and Annex "C" which is the subject of this partial decision by: Declaring the four Deeds of Donation as null and void ab initio for being a donation Mortis Causa and for failure to comply with formal and solemn requisite under Art. 806 of the New Civil Code; b) To declare the plaintiffs and defendants as well as unwilling co-plaintiff as the heirs of the deceased Conchita Cabatingan and therefore hereditary co-owners of the properties subject of this partial decision, as mandated under Art. 777 of the New Civil Code; SO ORDERED."
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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 () portion of the former's house and lot located at Cot-cot, Liloan, Raising questions of law, petitioners elevated the court a quo's 9 1 decision to this Court, alleging that: 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 "THE LOWER COURT PALPABLY DISREGARDED THE one located in Cogon, Cebu (307 sq. m.) and the other, a portion LONG-AND-WELL-ESTABLISHED RULINGS OF THIS of a parcel of land in Masbate (50,232 sq. m.); (b) petitioner HONORABLE SUPREME COURT ON THE Nicolas Cabatingan, a portion of a parcel of land located in CHARACTERIZATION OF DONATIONS AS INTER Masbate (80,000 sq. m.); and (c) petitioner Merly S. Cabatingan, a VIVOS OR MORTIS CAUSA AND, INSTEAD, 2 portion of the Masbate property (80,000 sq. m.). These deeds of PROCEEDED TO INTERPRET THE DONATIONS IN 10 donation contain similar provisions, to wit: QUESTION IN A MANNER CONTRARY THERETO." "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 3 rescinded and of no further force and effect; x x x" (Emphasis Ours) On May 9, 1995, Conchita Cabatingan died. Upon learning of the existence of the foregoing donations, respondents filed with the Regional Trial Court of Mandaue, Branch 55, an action for Annulment And/Or Declaration of Nullity of Deeds of Donations and Accounting, docketed as Civil Case No. MAN-2599, seeking the annulment of said four (4) deeds of donation executed on January 14, 1995. 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, 4 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 5 Cabatingan. Petitioners in their Amended Answer, deny respondents' allegations contending that Conchita Cabatingan freely, knowingly 6 and voluntarily caused the preparation of the instruments. On respondents' motion, the court a quo rendered a partial judgment on the pleadings on December 2, 1997 in favor of respondents, with the following dispositive portion: 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 11 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 12 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 13 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 14 to Cabatingan's death. The phrase "to become effective upon the

The court a quo ruled that the donations are donations mortis causa and therefore the four (4) deeds in question executed on January 14, 1995 are null and void for failure to comply with the requisites of Article 806 of the Civil Code on solemnities of wills 8 and testaments.

death of the DONOR" admits of no other interpretation but that requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil Code, to wit: Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the donations as mortis causa in the following "ART. 805. Every will, other than a holographic will, must Acceptance and Attestation clauses, uniformly found in the subject be subscribed at the end thereof by the testator himself or deeds of donation, to wit: by the testator's name written by some other person in his presence, and by his express direction, and attested and "That the DONEE does hereby accept the foregoing subscribed by three or more credible witnesses in the presence of the testator and of one another. donation mortis causa under the terms and conditions set forth therein, and avail herself of this occasion to express her profound gratitude for the kindness and generosity of The testator or the person requested by him to write his the DONOR." name and the instrumental witnesses of the will, shall xxx "SIGNED by the above-named DONOR and DONEE at the foot of this Deed of Donation mortis causa, which 15 consists of two (2) pages x x x." That the donations were made "in consideration of the love and affection of the donor" does not qualify the donations as inter vivos because transfers mortis causa may also be made for the same 16 reason. Well in point is National Treasurer of the Phils. v. Vda. de 17 Meimban. In said case, the questioned donation contained the provision: "That for and in consideration of the love and affection which the DONOR has for the DONEE, the said Donor by these presents does hereby give, transfer, and convey unto the DONEE, her heirs and assigns a portion of ONE HUNDRED THOUSAND (100,000) SQUARE METERS, on the southeastern part Pro-indiviso of the above described property. (The portion herein donated is within Lot 2-B of the proposed amendment Plan Subdivision of Lots Nos. 1 and 2, Psu-109393), with all the buildings and improvements thereon, to become effective upon the 18 death of the DONOR. (italics supplied.)" 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.

Notably, the foregoing provision is similar to that contained in the Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void. donation executed by Cabatingan. 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 WHEREFORE, the petition is hereby DENIED for lack of merit. ownership and possession of the donated property to the donee only after the former's death. Further: SO ORDERED. "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. 19 481)." G.R. No. 113725 June 29, 2000
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JOHNNY S. RABADILLA, petitioner, vs. 2 COURT OF APPEALS AND MARIA MARLENA COSCOLUELLA Y BELLEZA VILLACARLOS, respondents. DECISION PURISIMA, J.:

This is a petition for review of the decision of the Court of 3 Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555, We apply the above rulings to the present case. The herein which set aside the decision of Branch 52 of the Regional Trial subject deeds expressly provide that the donation shall be rescinded in case petitioners predecease Conchita Cabatingan. As Court in Bacolod City, and ordered the defendants-appellees 20 (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to stated in Reyes v. Mosqueda, one of the decisive reconvey title over Lot No. 1392, together with its fruits and characteristics of a donation mortis causa is that the transfer interests, to the estate of Aleja Belleza. 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 The antecedent facts are as follows: lifetime and that the ownership of the properties donated be transferred to the donee or independently of, and not by reason of In a Codicil appended to the Last Will and Testament of testatrix her death, she would have not expressed such proviso in the Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the subject deeds.1wphi1.nt herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511, 855 square meters of that parcel of land surveyed as Lot Considering that the disputed donations are donations mortis No. 1392 of the Bacolod Cadastre. The said Codicil, which was 21 causa, the same partake of the nature of testamentary provisions duly probated and admitted in Special Proceedings No. 4046 and as such, said deeds must be executed in accordance with the

before the then Court of First Instance of Negros Occidental, contained the following provisions: "FIRST I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City: (a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros Occidental. (b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of Jorge Rabadilla. xxx FOURTH (a)....It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies. FIFTH

enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that: 1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near descendants and sister of the testatrix. 2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance. 3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent. The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza. On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly. During the pre-trial, the parties admitted that:

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year. SIXTH I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with 4 others than my near descendants and my sister."

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendantheirs, arrived at an amicable settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect: "That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit: 75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years. That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein agreed upon, taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a Pursuant to the same Codicil, Lot No. 1392 was transferred to the staggered cash installment, payable on or before the end of deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. December of every sugar crop year, to wit: 44498 thereto issued in his name. For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year Dr. Jorge Rabadilla died in 1983 and was survived by his wife 1988-89; Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla. On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 5 1991-92." However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988 -1989. On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows: "WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While there maybe the non-performance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil. In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice. SO ORDERED."
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no modal institution and the testatrix intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there can be no valid substitution and such testamentary provision cannot be given any effect. The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity or reference as to who are 8 the "near descendants" and therefore, under Articles 843 and 9 845 of the New Civil Code, the substitution should be deemed as not written. The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law. It is a general rule under the law on succession that successional 10 rights are transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory 11 heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death. In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over the said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below. Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution - Dr. Jorge Rabadilla was to be substituted by the testatrix's near descendants should there be noncompliance with the obligation to deliver the piculs of sugar to private respondent. Again, the contention is without merit.

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus: "Therefore, the evidence on record having established plaintiffappellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendantsappellee's admitted non-compliance with said obligation since 1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies. Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza. SO ORDERED."
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Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code. The petition is not impressed with merit.

Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under Petitioner contends that the Court of Appeals erred in resolving the substitutions in general, the testator may either (1) provide for the appeal in accordance with Article 882 of the New Civil Code on designation of another heir to whom the property shall pass in modal institutions and in deviating from the sole issue raised which case the original heir should die before him/her, renounce the is the absence or prematurity of the cause of action. Petitioner inheritance or be incapacitated to inherit, as in a simple 12 maintains that Article 882 does not find application as there was substitution, or (2) leave his/her property to one person with the

express charge that it be transmitted subsequently to another or 13 others, as in a fideicommissary substitution. The Codicil sued upon contemplates neither of the two.

inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. In simple substitutions, the second heir takes the inheritance in Jorge Rabadilla's inheritance and the effectivity of his institution as default of the first heir by reason of incapacity, predecease or 14 a devisee, dependent on the performance of the said obligation. It renunciation. In the case under consideration, the provisions of is clear, though, that should the obligation be not complied with, subject Codicil do not provide that should Dr. Jorge Rabadilla the property shall be turned over to the testatrix's near default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. be seized and turned over to the testatrix's near descendants. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to 15 transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no 16 fideicommissary substitution." Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not 17 related by first degree to the second heir. In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide: Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the 18 testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the 19 succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does 20 not suspend. To some extent, it is similar to a resolutory 21 condition. From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the 22 institution should be considered as modal and not conditional. Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not the right to seize the property itself from the instituted heir because the right to seize was expressly limited to violations by the buyer, lessee or mortgagee. In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was 23 made. Such construction as will sustain and uphold the Will in all 24 its parts must be adopted. Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest. Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property. Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect 25 after his death. Since the Will expresses the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will. WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No pronouncement as to costs SO ORDERED. G.R. No. 111904 October 5, 2000

SPS. AGRIPINO GESTOPA and ISABEL SILARIO GESTOPA, petitioners, vs. COURT OF APPEALS and MERCEDES DANLAG y PILAPIL, respondents. DECISION QUISUMBING, J.: This petition for review, under Rule 45 of the Rules of Court, 2 assails the decision of the Court of Appeals dated August 31, 3 1993, in CA-G.R. CV No. 38266, which reversed the judgment of the Regional Trial Court of Cebu City, Branch 5. The facts, as culled from the records, are as follows: Spouses Diego and Catalina Danlag were the owners of six parcels of unregistered lands. They executed three deeds of donation mortis causa, two of which are dated March 4, 1965 and another dated October 13, 1966, in favor of private respondent 4 Mercedes Danlag-Pilapil. The first deed pertained to parcels 1 & 2 with Tax Declaration Nos. 11345 and 11347, respectively. The second deed pertained to parcel 3, with TD No. 018613. The last deed pertained to parcel 4 with TD No. 016821. All deeds contained the reservation of the rights of the donors (1) to amend, cancel or revoke the donation during their lifetime, and (2) to sell, mortgage, or encumber the properties donated during the donors' lifetime, if deemed necessary.
1

"WHEREFORE, the foregoing considered, the Court hereby renders judgment in favor of the defendants and against the plaintiff: 1. Declaring the Donations Mortis Causa and Inter Vivos as revoked, and, therefore, has (sic) no legal effect and force of law. 2. Declaring Diego Danlag the absolute and exclusive owner of the six (6) parcels of land mentioned in the Deed of revocation (Exh. P-plaintiff, Exh. 6-defendant Diego Danlag). 3. Declaring the Deeds of Sale executed by Diego Danlag in favor of spouses Agripino Gestopa and Isabel Gestopa dated June 28, 1979 (Exh. S-plaintiff; Exh. 18-defendant); Deed of Sale dated December 18, 1979 (Exh. T plaintiff; Exh. 9-defendant); Deed of Sale dated September 14, 1979 (Exh. 8); Deed of Sale dated June 30, 1975 (Exh. U); Deed of Sale dated March 13, 1978 (Exh. X) as valid and enforceable duly executed in accordance with the formalities required by law. 4. Ordering all tax declaration issued in the name of Mercedes Danlag Y Pilapil covering the parcel of land donated cancelled and further restoring all the tax declarations previously cancelled, except parcels nos. 1 and 5 described, in the Deed of Donation Inter Vivos (Exh. "1") and Deed of Sale (Exh. "2") executed by defendant in favor of plaintiff and her husband.

On January 16, 1973, Diego Danlag, with the consent of his wife, 5 [5.] With respect to the contract of sale of abovestated Catalina Danlag, executed a deed of donation inter vivos covering parcels of land, vendor Diego Danlag and spouse or their the aforementioned parcels of land plus two other parcels with TD estate have the alternative remedies of demanding the Nos. 11351 and 11343, respectively, again in favor of private balance of the agreed price with legal interest, or respondent Mercedes. This contained two conditions, that (1) the rescission of the contract of sale. Danlag spouses shall continue to enjoy the fruits of the land during their lifetime, and that (2) the donee can not sell or dispose of the 8 SO ORDERED." land during the lifetime of the said spouses, without their prior consent and approval. Mercedes caused the transfer of the parcels' tax declaration to her name and paid the taxes on them. In rendering the above decision, the trial court found that the reservation clause in all the deeds of donation indicated that Diego On June 28, 1979 and August 21, 1979, Diego and Catalina Danlag did not make any donation; that the purchase by Mercedes of the two parcels of land covered by the Deed of Donation Inter Danlag sold parcels 3 and 4 to herein petitioners, Mr. and Mrs. Agripino Gestopa. On September 29, 1979, the Danlags executed Vivos bolstered this conclusion; that Mercedes failed to rebut the 6 a deed of revocation recovering the six parcels of land subject of allegations of ingratitude she committed against Diego Danlag; the aforecited deed of donation inter vivos. and that Mercedes committed fraud and machination in preparing all the deeds of donation without explaining to Diego Danlag their contents. On March 1, 1983, Mercedes Pilapil (herein private respondent) filed with the RTC a petition against the Gestopas and the 7 Danlags, for quieting of title over the above parcels of land. She alleged that she was an illegitimate daughter of Diego Danlag; that she lived and rendered incalculable beneficial services to Diego and his mother, Maura Danlag, when the latter was still alive. In recognition of the services she rendered, Diego executed a Deed of Donation on March 20, 1973, conveying to her the six (6) parcels of land. She accepted the donation in the same instrument, openly and publicly exercised rights of ownership over the donated properties, and caused the transfer of the tax declarations to her name. Through machination, intimidation and undue influence, Diego persuaded the husband of Mercedes, Eulalio Pilapil, to buy two of the six parcels covered by the deed of donation. Said donation inter vivos was coupled with conditions and, according to Mercedes, since its perfection, she had complied with all of them; that she had not been guilty of any act of ingratitude; and that respondent Diego had no legal basis in revoking the subject donation and then in selling the two parcels of land to the Gestopas. In their opposition, the Gestopas and the Danlags averred that the deed of donation dated January 16, 1973 was null and void because it was obtained by Mercedes through machinations and undue influence. Even assuming it was validly executed, the intention was for the donation to take effect upon the death of the donor. Further, the donation was void for it left the donor, Diego Danlag, without any property at all. On December 27, 1991, the trial court rendered its decision, thus: Mercedes appealed to the Court of Appeals and argued that the trial court erred in (1) declaring the donation dated January 16, 1973 as mortis causa and that the same was already revoked on the ground of ingratitude; (2) finding that Mercedes purchased from Diego Danlag the two parcels of land already covered by the above donation and that she was only able to pay three thousand pesos, out of the total amount of twenty thousand pesos; (3) failing to declare that Mercedes was an acknowledged natural child of Diego Danlag. On August 31, 1993, the appellate court reversed the trial court. It ruled: "PREMISES CONSIDERED, the decision appealed from is REVERSED and a new judgment is hereby rendered as follows: 1. Declaring the deed of donation inter vivos dated January 16, 1973 as not having been revoked and consequently the same remains in full force and effect; 2. Declaring the Revocation of Donation dated June 4, 1979 to be null and void and therefore of no force and effect; 3. Declaring Mercedes Danlag Pilapil as the absolute and exclusive owner of the six (6) parcels of land specified in the above-cited deed of donation inter vivos;

4. Declaring the Deed of Sale executed by Diego Danlag in favor of spouses Agripino and Isabel Gestopa dated June 28, 1979 (Exhibits S and 18), Deed of Sale dated December 18, 1979 (Exhibits T and 19), Deed of Sale dated September 14, 1979 (Exhibit 8), Deed of Sale dated June 30, 1975 (Exhibit U), Deed of Sale dated March 13, 1978 (Exhibit X) as well as the Deed of Sale in favor of Eulalio Danlag dated December 27, 1978 (Exhibit 2) not to have been validly executed;

That for the same purpose as hereinbefore stated, the Donor further states that he has reserved for himself sufficient properties in full ownership or in usufruct enough for his maintenance of a decent livelihood in consonance with his standing in society. That the Donee hereby accepts the donation and expresses her thanks and gratitude for the kindness and generosity of the 13 Donor."

Note first that the granting clause shows that Diego donated the 5. Declaring the above-mentioned deeds of sale to be null properties out of love and affection for the donee. This is a mark of 14 and void and therefore of no force and effect; a donation inter vivos. Second, the reservation of lifetime usufruct indicates that the donor intended to transfer the naked 6. Ordering spouses Agripino Gestopa and Isabel Silerio ownership over the properties. As correctly posed by the Court of Gestopa to reconvey within thirty (30) days from the Appeals, what was the need for such reservation if the donor and finality of the instant judgment to Mercedes Danlag Pilapil his spouse remained the owners of the properties? Third, the the parcels of land above-specified, regarding which titles donor reserved sufficient properties for his maintenance in have been subsequently fraudulently secured, namely accordance with his standing in society, indicating that the donor those covered by O.C.T. T-17836 and O.C.T. No. 17523. intended to part with the six parcels of land.15 Lastly, the donee accepted the donation. In the case of Alejandro vs. Geraldez, 78 SCRA 245 (1977), we said that an acceptance clause is a mark 7. Failing to do so, ordering the Branch Clerk of Court of the Regional Trial Court (Branch V) at Cebu City to effect that the donation is inter vivos. Acceptance is a requirement for donations inter vivos. Donations mortis causa, being in the form of such reconveyance of the parcels of land covered by a will, are not required to be accepted by the donees during the O.C.T. T-17836 and 17523. donors' lifetime. SO ORDERED."
9

The Court of Appeals held that the reservation by the donor of lifetime usufruct indicated that he transferred to Mercedes the ownership over the donated properties; that the right to sell belonged to the donee, and the donor's right referred to that of merely giving consent; that the donor changed his intention by donating inter vivos properties already donated mortis causa; that the transfer to Mercedes' name of the tax declarations pertaining to the donated properties implied that the donation was inter vivos; The attending circumstances in the execution of the subject donation also demonstrated the real intent of the donor to transfer and that Mercedes did not purchase two of the six parcels of land 16 the ownership over the subject properties upon its execution. donated to her. Prior to the execution of donation inter vivos, the Danlag spouses already executed three donations mortis causa. As correctly Hence, this instant petition for review filed by the Gestopa observed by the Court of Appeals, the Danlag spouses were spouses, asserting that: aware of the difference between the two donations. If they did not intend to donate inter vivos, they would not again donate the four "THE HONORABLE COURT OF APPEALS, TWELFTH DIVISION, lots already donated mortis causa. Petitioners' counter argument that this proposition was erroneous because six years after, the HAS GRAVELY ERRED IN REVERSING THE DECISION OF 10 spouses changed their intention with the deed of revocation, is not THE COURT A QUO." only disingenious but also fallacious. Petitioners cannot use the deed of revocation to show the spouses' intent because its validity Before us, petitioners allege that the appellate court overlooked is one of the issues in this case. the fact that the donor did not only reserve the right to enjoy the fruits of the properties, but also prohibited the donee from selling or disposing the land without the consent and approval of the Danlag spouses. This implied that the donor still had control and ownership over the donated properties. Hence, the donation was post mortem. Crucial in resolving whether the donation was inter vivos or mortis causa is the determination of whether the donor intended to transfer the ownership over the properties upon the execution of 11 the deed. In ascertaining the intention of the donor, all of the deed's 12 provisions must be read together. The deed of donation dated January 16, 1973, in favor of Mercedes contained the following: Petitioners aver that Mercedes' tax declarations in her name can not be a basis in determining the donor's intent. They claim that it is easy to get tax declarations from the government offices such that tax declarations are not considered proofs of ownership. However, unless proven otherwise, there is a presumption of 17 regularity in the performance of official duties. We find that petitioners did not overcome this presumption of regularity in the issuance of the tax declarations. We also note that the Court of Appeals did not refer to the tax declarations as proofs of ownership but only as evidence of the intent by the donor to transfer ownership. Petitioners assert that since private respondent purchased two of the six parcels of land from the donor, she herself did not believe the donation was inter vivos. As aptly noted by the Court of Appeals, however, it was private respondent's husband who purchased the two parcels of land.

Consequently, the Court of Appeals did not err in concluding that the right to dispose of the properties belonged to the donee. The donor's right to give consent was merely intended to protect his usufructuary interests. In Alejandro, we ruled that a limitation on the right to sell during the donors' lifetime implied that ownership had passed to the donees and donation was already effective during the donors' lifetime.

"That for and in consideration of the love and affection which the Donor inspires in the Donee and as an act of liberality and generosity, the Donor hereby gives, donates, transfer and conveys by way of donation unto the herein Donee, her heirs, assigns and As a rule, a finding of fact by the appellate court, especially when it successors, the above-described parcels of land; 18 is supported by evidence on record, is binding on us. On the alleged purchase by her husband of two parcels, it is reasonable That it is the condition of this donation that the Donor shall to infer that the purchase was without private respondent's continue to enjoy all the fruits of the land during his lifetime and consent. Purchase by her husband would make the properties that of his spouse and that the donee cannot sell or otherwise, conjugal to her own disadvantage. That the purchase is against dispose of the lands without the prior consent and approval by the her self-interest, weighs strongly in her favor and gives credence Donor and her spouse during their lifetime. to her claim that her husband was manipulated and unduly influenced to make the purchase, in the first place.1wphi1 xxx

Was the revocation valid? A valid donation, once accepted, becomes irrevocable, except on account of officiousness, failure by the donee to comply with the charges imposed in the donation, 19 or ingratitude. The donor-spouses did not invoke any of these reasons in the deed of revocation. The deed merely stated: "WHEREAS, while the said donation was a donation Inter Vivos, our intention thereof is that of Mortis Causa so as we could be sure that in case of our death, the above-described properties will be inherited and/or succeeded by Mercedes Danlag de Pilapil; and that said intention is clearly shown in paragraph 3 of said donation to the effect that the Donee cannot dispose and/or sell the properties donated during our life-time, and that we are the one 20 enjoying all the fruits thereof." Petitioners cited Mercedes' vehemence in prohibiting the donor to gather coconut trees and her filing of instant petition for quieting of title. There is nothing on record, however, showing that private respondent prohibited the donors from gathering coconuts. Even assuming that Mercedes prevented the donor from gathering coconuts, this could hardly be considered an act covered by Article 21 765 of the Civil Code. Nor does this Article cover respondent's filing of the petition for quieting of title, where she merely asserted what she believed was her right under the law. Finally, the records do not show that the donor-spouses instituted any action to revoke the donation in accordance with Article 769 of 22 the Civil Code. Consequently, the supposed revocation on September 29, 1979, had no legal effect. WHEREFORE, the instant petition for review is DENIED. The assailed decision of the Court of Appeals dated August 31, 1993, is AFFIRMED. Costs against petitioners. SO ORDERED. G.R. No. L-15939 November 29, 1965

TRANSFIERE, en concepto de donacion mortis causa, a favor de la antedicha Donataria, las parcelas de terreno arriba descritas con las mejoras existentes en ellas, bajo las siguientes condiciones: 1. Que la Donante se reserva el derecho de hipotecar y aun vender las propiedades objecto de esta escritura de donacion mortis causa, cuando y si necesita fondos para satisfacer sus propias necesidades, sin que para ello tenga que intervenir la Donataria, pues su consentimiento se sobre entiende aqui, aparte de que la donacion que aqui se hace es mortis causa, es decir que la donacion surtira sus efectos a la muerte de la donante; 2. Que la donataria sufragana todos los gastos necesarios para los tratamientos medicos, gastos de hospital y/o entierro de la donante a menos que dicha donante tenga propios fondos depositados en un banco o bancos o que haya cosecho levantada o recogida. en cual caso dichos recursos responderan portales, gastos a disposicion y direccion de la donataria; 3. Que la cesion y transferencia aqui provista surtira efecto al fallecer la Donante; y 4. Que si la Donataria muere antes de la Donante esta donacion surtira efecto a favor de los hijos o descendientes de la primera, pero su marido, el actual Governador de la provincia de Iloilo Hon. Mariano B. Peaflorida, asumira las deligaciones que asume en esta escritura de donacion la Donataria Doa Estela Magbanua, especialmente la de atender a los gastos de ultima enfermedad y entierra de la Donante. 5. Que esta escritura de donacion no se presentara al Registrador de Titulos de Iloilo sino despues de la muerte de la donante. Que la Donataria, por la presente, acepta la donacion aqui hecha de las tres (3) parcelas de terreno arriba, descritas, con las mejoras existentes en ellas, en las o bajo las condiciones y/o estipulaciones arriba expresadas, y al mismo tiempo de su mas expresivo y sincero aprecio y gratitud para con la Donante y expresa su imperecedero agradecimiento por la benevolencia y generosidad demonstrada por dicha Donante en este acto. Que Don Mariano B. Peaflorida, marido de la Donataria, asume las obligaciones contenidas en el parrafo 4 o de las condiciones de esta escritura de donacion. On December 28, 1949, the deceased executed another deed of donation, also entitled "ESCRITURA DE DONACION MORTIS CAUSA" in favor of the same donee, Estela Magbanua Peaflorida, conveying to her three parcels of land covered by Transfer Certificates of Title Nos. 925, 927 and 11042 of the Register of Deeds of Iloilo stipulating as follows: Que la DONANTE, en consideracion a los servicios prestados a la tiene, por la presente cedo y traspaso a la DONATARIA, en concepto de una DONACION MORTIS CAUSA, (1) la totalidad del Lote No. 2054 del Catastro de Pototan, arriba descrito, y cubierto por el Certificado de Transferencia de Titulo No.926 expedido su favor por el Registrador de Titulos de la provincia de Iloilo, con todas las mejoras existentes en ella, (2) la totalidad de la porcion secana y alta que no sea dedicada a la siembra y cultivo de palay de Lote No. 2053 de Catastro de Pototan, y cubierto por el certificado de Transferencia de Titulo No. 927, expedido a su favor por el Registrador de Titulos de Iloilo, con todas las mejoras existentes en ella; (3) y la mitad de Lote No. 58 de la Catastro de Pototan, Iloilo, y cubierto por el certificado de Transferencia de Titulo No. 11042, expedido a su favor por el Registrador de Titulos de Iloilo, con todas las mejoras existentes en ellas, cuya mitad de Lote No. 58 es la que colinda con los lotes Nos. 61, 62 y 63 del Catastro del Pototan, Iloilo, y cuyas tres lotes Nos. 2053, 2055, y 58 estan mas

ANGELES UBALDE PUIG, ET AL., plaintiffs-appellants, vs. ESTELA MAGBANUA PEAFLORIDA, ET AL., defendantsappellants. Ceferino de los Santos, Jr. for plaintiffs-appellants. Salonga, Ordoez & Associates for defendants-appellants. REYES, J.B.L., J.: Direct appeal to this Court from a decision of March 23, 1959, issued by the Court of First Instance of Iloilo, in its Civil Case No. 2892, declaring null and void certain deeds of donation executed by the late Carmen Ubalde Vda. de Parcon. The facts were stipulated in the court below, to the effect that on April 10, 1953, Carmen Ubalde Vda. de Parcon died in the City of Iloilo, without forced heirs, leaving certain properties in the City and province of Iloilo. She left a will and was survived by nephews and nieces, children of her predeceased brother, Catalino Ubalde, and sister, Luisa Ubalde, married to Ariston Magbanua. It also appears that besides her will, the deceased had executed two notarial deeds of donation. One, entitled DONACION MORTIS CAUSA, was executed on November 24, 1948, in favor of her niece, Estela Magbanua, married to Mariano Peaflorida, purporting to convey to the donee the properties covered by Transfer Certificates of Title Nos. 2338 and 18951 of the Registry of Deeds of Iloilo, subject to the following stipulations: Que por y en consideracion al afecto, amor y cario que la Donante guarda para con la Donataria y tambien por motivo de la lealtad y atencion y servicion fieles que la ultima ha rendido, come sigue aun rindiendo, a favor de la primera, dicha Donante, por la presente, CEDE Y

detalladamente descritos en el parrafo anterioir, bajo las condiciones siguientes: Que si en la fecha de su muerte no haya la DONANTE tras pasado VENDIDO o cedido a otras terceras personas o entidades la mitad de dichos lotes No. 58 del Catastro del Pototan, Iloilo, la aqui DONATARIA se compromete y se obliga a pagar a Caridad Ubalde, casada con Tomas Pedrola, y residente en el municipio de Pototan, Iloilo, la cantidad de SEIS CIENTOS PESOS (P600.00), y el pago de esta cantidad se verificara en la fecha en que la aqui DONATARIA tome posesion de la mitad de dicho lote No. 58; Que antes de su muerte, la DONANTE, podra enajenar, vender, traspasar o hipotecar a cualesquier personas o entidades los bienes aqui donados a favor de la DONATARIA en concepto de una donacion mortis causa; Que esta escritura de donacion mortis causa no se registrara en la oficina del Registrador de Titulos de Iloilo sino despues del fallecimiento de la DONANTE; y Que la DONATARIA acepta la presente donacion bajo las condiciones arriba consignadas y hace constar publicamente su agradecimiento a la DONANTE por sugenerosidad y liberalidad. Both donations were recorded in the corresponding Registry of Deeds after the death of the donor. The will executed by the deceased on March 26, 1951 was submitted to the Court of First Instance of Iloilo in Special Proceedings No. 991; and because the Executor and Special Administrator, Mariano B. Peaflorida, would not attack the validity of the donations above-referred to, the nephews and nieces of the late Carmen Ubalde, children of her predeceased brother, Catalino Ubalde, filed the present suit against their cousins Magbanua, seeking to have the two deeds of donation set aside for lack of testamentary formalities; and after issue joined and by decision of March 23, 1959 the Court of First Instance rendered judgment, with a dispositive portion reading as follows: IN VIEW OF THE FOREGOING, the Court hereby renders judgment (a) Declaring the aforementioned two deeds of donation mortis causa, executed in favor of the defendant Estela Magbanua Peaflorida without the testamentary formalities prescribed by law invalid and of no effect; (b) Declaring that the disposition mortis causa in favor of Estela Magbanua Peaflorida of the portion of Lot No. 2053 of the Cadastral Survey of Pototan, Iloilo, covered by T.C.T. No. 927 of the Register of Deeds of Iloilo, described as "la porcion secana y alta que no esta dedicada al cultivo y siembra de palay" contained in the void deed of donation mortis causa dated December 26, 1949, was validated by paragraph ten of the will subsequently executed by Carmen Ubalde on March 26, 1951; (c) Ordering the defendant Estela Magbanua Peaflorida to forthwith deliver to the administrator or executor of the estate of the deceased Carmen Ubalde Vda. de Parcon the parcels of land covered by T.C.T. Nos. 2338, 18951, 925 and 11042 of the Register of Deeds of Iloilo for proper distribution among the lawful heirs and the parcel of land covered by T.C.T. No. 927 of the Register of Deeds of Iloilo for adjudication in accordance with the aforesaid will; and (d) Dismissing the case with respect to the defendants Mariano B. Peaflorida, Isabel Magbanua Velasco, Neri Magbanua and Efrain Magbanua.

Without pronouncement as to costs. SO ORDERED. Both parties, plaintiff and defendant, appealed. Two issues are propounded in the appeal, which are: (1) Are the two donations, previously described, inter vivos or mortis causa? It being admitted that in the latter event the donations are void for not being executed with testamentary formalities. (2) Was the donation of a portion of Lot 2053 of the Pototan Cadastre, covered by T.C.T. No. 927 of the Registry of Deeds of Iloilo, validated by par. 10 of the last will and testament of the decedent, which reads as follows: DECIMO. Lego a Doa Angeles Ubalde, casada con Don Francisco Puig, toda la porcion palayera del Lote No. 2053 del catastro de Pototan, Iloilo, y cubierto por el certificado de Transferencia de Titulo No. 927 expedido a mi favor por el Registrador de Titulos de Iloilo, y en relacion con este lote, hago constar que he cedido y traspasado, en concepto de una donacion mortis causa, a Doa Estela Magbanua, casada con Don Mariano B. Peaflorida, la porcion alta y secana que no esta dedicada al cultivo y siembra de palay de este mismo Lote No. 2053, segun documento que he firmado a su favor. With regard to the character of the donations, it is well to recall here that the jurisprudence of this Court has established the following rules: (1) That the donation mortis causa of the Roman Law and the Spanish pre-codal legislation has been eliminated as a juridical entity from and after the enactment of the Spanish Civil Code of 1889 (Art. 620) as well as the Civil Code of the Philippines (Art. 728), which admit only gratuitous transfers of title or real rights to property either by way of donations inter vivos or else by way of last will and testament, executed with the requisite legal formalities. In the first case, the act is immediately operative, even if the actual execution may be deferred until the death of the donor; in the second, nothing is conveyed to the grantee and nothing is acquired by the latter, until the death of the grantortestator, the disposition being until then ambulatory and not final (Bonsato vs. Court of Appeals, 95 Phil. 481). (2) That an essential characteristic of dispositions mortis causa is that the conveyance or alienation should be (expressly or by necessary implication) revocable ad nutum, i.e., at the discretion of the grantor or so-called "donor," simply because the latter has changed his mind (Bautista vs. Sabiniano, 92 Phil. 244; Bonsato vs. Court of Appeals, 95 Phil. 481). (3) That, in consequence, the specification in a deed of the causes whereby the act may be revoked by the donor indicates that the donation is inter vivos, rather than a disposition mortis causa (Zapanta vs. Posadas, 52 Phil. 557). (4) That the designation of the donation as mortis causa, or a provision in the deed to the effect that the donation is "to take effect at the death of the donor" are not controlling criteria (Laureta vs. Mata, 44 Phil. 668; Concepcion vs. Concepcion, L-4225, August 25, 1952; Cuevas vs. Cuevas, 68 Phil. 68); such statements are to be construed together with the rest of the instrument, in order to give effect to the real intent of the transferor (Concepcion vs. Concepcion, supra; Bonsato vs. Court of Appeals, supra). (5) That a conveyance for onerous consideration is governed by the rules of contracts and not by those of donation or testament (Carlos vs. Ramil, 20 Phil. 183; Manalo vs. de Mesa, 29 Phil. 495).

(6) That in case of doubt, the conveyance should be deemed Here is an unlimited power to indirectly avoid the alleged donation donation inter vivos rather than mortis causa, in order to avoid any time the donor should choose to do so, and which leaves no uncertainty as to the ownership of the property subject of the deed. doubt as to the mortis causa nature of the conveyance; unlike the prior donation, where the power to indirectly revoke is hedged in by the specification that the donor could dispose of the property Tested by the foregoing principles, the donation of November 24, only to satisfy her needs, thereby impliedly rejecting alienations for 1948, while somewhat ambiguous, should be held inter vivos in any other purpose. Hence, following the rule of Zapanta vs. character. Admittedly, it is designated as "mortis causa," and specifies that it will take effect upon the death of the donor; but, as Posadas, 52 Phil. 557, the donation of November 24, 1948 must previously stated, these expressions are not controlling, and, in the beheld to partake of the nature of a conveyance inter vivos. instance, before us, are contradicted by other provisions indicating a contrary intent. Thus, (d) Finally, it is no objection to our view that the donation of November 24, 1948 should provide that it is not to be recorded until after the donor's death (par. 5), since the absence of (a) The conveyance of the properties described in the deed registration would affect only subsequent purchasers, without (Annex A, amended complaint) appears made in consideration of denying the validity and obligatory effects of the conveyance as the undertaking of the donee, Estela Magbanua, to bear "all expenses for medical treatment, hospital expenses and/or burial of between the parties thereto. the Donor," without limiting the time when such expenses are to be incurred. In fact, the use of the words "y/o entierro" (and/or burial) We, therefore, conclude, and so hold, that the court below erred in strongly suggests that the illness and hospitalization expenditures adjudging the deed of November 24, 1948 to be null and void. The same is valid and operative as a donation inter vivos. to be borne by the donee may or may not be connected with the donor's last illness. (b) Emphasizing the onerous character of the transaction is the requirement that if the donee should predecease the donor, Governor Peaflorida shall assume the obligations of the donee, "especialmente" (but not exclusively) "los gastos de ultima enfermedad y entierro de la donante" (par. 4), and this undertaking was assumed even if the properties donated would not go to Peaflorida but to the donee's children and descendants (par. 3). It was evidently because of this liability, unconnected with the conveyance, that Peaflorida had to sign the document together with the donee. It is easy to see that unless the conveyance were to be effective before the death of donor,, the obligations assumed by the donee and Governor Peaflorida (her husband) would be without consideration (causa). In a very similar case (Manalo vs. De Mesa, 29 Phil. 495), this court ruled: There can be no doubt that the donation in question was made for a valuable consideration, since the donors made it conditional upon the donees' bearing the expenses that might be occasioned by the death and burial of the donor Placida Manalo, a condition and obligation which the donee Gregorio de Mesa carried out in his own behalf and for his wife Leoncia Manalo; therefore, in order to determine whether or not said donation is valid and effective it should be sufficient to demonstrate that, as a contract, it embraces the conditions the law requires and is valid and effective, although not recorded in a public instrument. (Manalo vs. de Mesa, 29 Phil. 495, 500) Such conditions (consent, subject matter, causa or consideration and observance of the formalities or solemnities required by law) are all present in the deed of November 24, 1948. (c) Again, while there is a clause that the donor reserved her right "to mortgage or even sell the donated property, when and if she should need funds to meet her own needs," this last sentence of the stipulation appears incompatible with the grantor's freedom to revoke a true conveyance mortis causa, a faculty that is essentially absolute and discretionary, whether its purpose should be to supply her needs or to make a profit, or have no other reason than a change of volition on the part of the grantor-testator. If the late Carmen Ubalde Vda. de Parcon wished or intended to retain the right to change the destination of her property at her sole will and discretion, there was no reason for her to specify the causes for which she could sell or encumber the property covered by her bounty. Turning now to the deed of donation (also labelled mortis causa) executed by and between the same parties on December 28, 1949, the text thereof (quoted ante, pp. 4-5) is clear that no proprietary right was intended to pass to the alleged "donee" prior to the "donor's" death, and that the same was a true conveyance mortis causa, which by law is invalid because it was not executed with the testamentary formalities required by the statutes in force at the time. Here, unlike in the previous donation the designation is donation mortis causa is confirmed by the fact that no signs contradict or limit the unqualified and unrestricted right of the donor to alienate the conveyed properties in favor of other persons of her choice at any time that she should wish to do so; it is so expressed in the deed, and it indirectly recognizes the donor's power to nullify the conveyance to the alleged "donee" whatever the "donor" wished to do so, for any reason or for no particular reason at all. As we have seen, this faculty is characteristic of conveyances post mortem or mortis causa: for the right of the transfer or to alienate the "donated" property to someone else necessarily imports that the conveyance to the "donee" will not become final and definite in favor of the latter until the death of the "donor" should exclude every possibility that the property maybe alienated to some other person. Defendant-appellant Estela Magbanua Peaflorida contends that this second deed of December 28, 1949 is also a donation inter vivos; and she argues that the stipulated power of the grantor to encumber or alienate the property to persons, other than the donee, at any time before the grantor dies, should be viewed as a mere resolutory condition that does not contradict but confirms the immediate effectivity of the donation. This ingenious argument is not legally tenable, since it ignores the circumstance that the socalled "resolutory condition" is one purely dependent upon the exclusive will of the grantor, and is proof that the deed as executed, is not obligatory at all (Civ. Code of 1889, Art. 1115; Civil Code of the Philippines, Art. 1182). Confirming the rule, both the old and the new Civil Codes prescribe that the effectivity, compliance, or binding effect of contracts cannot be left to the sole will of one of the parties (Art. 1256, Civ. Code of 1889; Art. 1308, Civil Code of the Philippines).

It is also argued that the stipulation empowering the "donor" to alienate the property elsewhere would be unnecessary if the donation were mortis causa. The flaw in this reasoning is that it loses sight of the fact that the clause in question proves that there is no donation at all, since it shows that the alleged donor, Carmen Ubalde, did not wish to be bound, and did not want to lose her title to, nor her control over, the property during her own lifetime. There was, therefore, no conveyance inter vivos, since none was intended; and no donation mortis causa because, as already It is illuminating, in this respect, to compare the provisions above pointed out, acts intended to be effective after the death of the discussed with the corresponding paragraph of the second deed of grantor must be executed in the form of a last will and testament, donation dated December 28, 1949. The latter recites as follows: or else they will not be legally valid. Que antes de su muerte, la Donante podra enajenar, vender, traspasar o hipotecar a cualesquier personas o entidades los bienes aqui donados a favor de la Donataria, en concepto de una donacion mortis causa. (Annex "B", Rec. App., pp. 24-25) The nullity of the donation of December 28, 1949 has an exception: the conveyance therein of "la porcion alta y secana que no esta dedicada al cultivo y siembra de palay" of Lot 2053 of the Pototan (Iloilo) Cadastre was correctly held by the appealed

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decision to have been confirmed and validated by the late Carmen Ubalde in clause 10 of her last will and testament executed on March 26, 1951 (Stip. of Facts, Annex "A"; Rec. on Appeal, pp. 5253), when she solemnly declared that she had conveyed said portion to defendant-appellant Estela Magbanua by donation mortis causa. While made by way of reference, we are satisfied that this portion of the will's tenth clause (previously quoted on page 7 of this decision) is valid as an independent testamentary legacy, as it is apparent and indubitable that the decedent had intended to bequeath the described portion of Lot 2053 to the defendant-appellant. That it should be expressed in the past tense is irrelevant: technicalities should not be allowed to enervate the manifest will of the testatrix, clearly expressed in a valid testament, or unavoidably inferred therefrom.

necessarily meant, according to section 50 of the Land Registration Act, that the deed in question should not take effect as a conveyance nor bind the land until after the death of the "donor".

Neither did the document operate to vest possession upon Doa Estela Magbanua, in view of the express condition that (paragraph 3) if at the date of her death the donor had not transferred, sold, or conveyed one-half of lot 58 of the Pototan Cadastre to other persons or entities, the donee would be bound to pay to Caridad Ubalde, married to Tomas Pedrola, the amount of P600.00, and such payment was to be made on the date the donee took possession of Lot No. 58. As the obligation to pay the legacy to Caridad Ubalde would not definitely arise until after the death of the donor, because only by then would it become certain that the In view of the foregoing, the appealed decision of the Court of First "donor" could not transfer the property to someone else, and such Instance of Iloilo should be and is modified by declaring, as we payment must precede the taking possession of the property hereby rule, that the deed of Donation executed by the late "donated", it necessarily follows that the "donee's" taking of possession could not occur before the death of the donor. Carmen Ubalde in favor of Estela Magbanua Peaflorida on November 24, 1948 is a valid and effective conveyance by way of donation inter vivos, duly accepted by the donee. It being thus clear that the disposition contained in the deed is one IN ALL OTHER RESPECTS, the appealed decision is affirmed. Without costs in this instance. Let the records be returned to the Court of origin for further proceedings in conformity with this opinion G.R. No. L-15939 January 31, 1966 that produces no effect until the death of the grantor, we are clearly faced by an act mortis causa of the Roman and Spanish law. We thus see no need of resorting to American authorities as to the import of the reservation of the donor's right to dispose of the donated property, for the Spanish authorities are very clear on this point: Desde el momento en que la muerte del donante es la que determina la adquisicion o el derecho a los bienes; desde el montento en que la disposicion puede ser revocada voluntariamente, se salva la linea divisoria entre unos y otros actos: la donacion equivale a un legado; mas aun que esto: es un legado en realidad . (5 Manresa, 5th Ed., p. 107) Ahora bien: si el mal llamado donante no solo dilata la fecha de la ejecucion para el momento de su muerte, sino que ademas se reserva la facultad de revocar a su arbitrio la disposicion, entonces el acto no es valido bajo la forma de contrato; hay en realidad una disposicion mortis causa que exige las solemnidades del testamento. (V Manresa, 5th Ed., p. 109) (Emphasis supplied) The presence of an acceptance is but a consequence of the erroneous concept of the true nature of the juridical act, and does not indicate that in the same is a true donation inter vivos. Appellant Magbanua further argues that the reserved power of the donor to convey the donated property to other parties during her lifetime is but a resolutory condition (albeit a potestative one) that confirms the passing of the title to the donee. In reality, this argument is a veritable petitio principii; it takes for granted what has to be proved, i.e., that some proprietary right has passed under the terms of the deed, which, as we have shown, is not true until the donor has died. It is highly illuminating to compare the condition imposed in the deed of donation of December 28, 1949 with that established in the contract dealt with in Taylor vs. Uy Tieng Piao & Tau Liuan, 43 Phil. 874, invoked by appellants. In the alleged deed of donation of December 28, 1949, the late Doa Carmen Ubalde imposed expressly that: Que antes de su muerte, la Donante podra enajenar, vender, traspasar e hipotecar a cualesquiera personas o entidades los bienes aqui donados a favor de la Donataria en concepto de Donacion mortis causa. In the Taylor vs. Uy Tieng Piao case, on the other hand, the condition read: It is understood and agreed that should the machinery to be installed in said factory fail, for any reason, to arrive, in the City of Manila within the period of six (6) months from date hereof, this contract may be cancelled by the party

ANGELES UBALDE PUIG, ET AL., plaintiffs-appellants, vs. ESTELLA MAGBANUA PEAFLORIDA, ET AL., defendantsappellants. Salonga and Ordonez for the plaintiffs-appellants. Fulgencio Vega for the defendants-appellants. RESOLUTION (Main opinion was promulgated on November 29, 1965). REYES, J.B.L., J.: Defendants-appellants Estela Magbanua Peaflorida, et al., insist that the reservation by the donor of the right to dispose of the property during her lifetime in the deed of December 28, 1949 indicates that title had passed to the donee in her lifetime, otherwise, it is argued, the reservation would be superfluous, and they cite American authorities in support. This thesis would be plausible if the reservation of the power to dispose were the only indication to be considered in deciding whether the donation of December 28, 1949 was mortis causa or inter vivos. But such is not the case. The Court in its decision took to account not only the foregoing circumstance but also the fact that the deceased expressly and consistently declared her conveyance to be one of donation mortis causa, and further forbade the registration of the deed until after her death. All these features concordantly indicated that the conveyance was not intended to produce any definitive effects, nor to finally pass any interest to the grantee, except from and after the death of the grantor. We see nothing in the deed itself to indicate that any right, title or interest in the properties described was meant to be transferred to Doa Estela Magbanua prior to the death of the grantor, Carmen Ubalde Vda. de Parcon. Not ownership, certainly, for the stipulation: Que esta escritura de donacion mortis causa no se registrara en la oficina del Registrador de Titulos de Iloilo sino despues del fallecimiento de la Donante

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of the second part at its option, such cancellation, however, not to occur before the expiration of such six (6) months. (pp. 874-875, cas. cit.). In the Uy Tieng Piao case the contract could only be cancelled after six months, so that there could be no doubt that it was in force at least for that long, and the optional cancellation can be viewed as a resolutory condition (or more properly, a nonretroactive revocatory one); but no such restriction limited the power of the donor, Doa Carmen Ubalde, to set at naught the alleged conveyance in favor of Doa Estela Magbanua by conveying the property to other parties at any time, even at the very next instant after executing the donation, if she so chose. It requires no argument to demonstrate that the power, as reserved in the deed, was a power to destroy the donation at any time, and that it meant that the transfer is not binding on the grantor until her death made it impossible to channel the property elsewhere. Which, in the last analysis, as held in our main decision, signifies that the liberality is testamentary in nature, and must appear with the solemnities required of last wills and testaments in order to be legally valid. Wherefore, the motion to reconsider is denied. G.R. No. L-33849 August 18, 1977 TEODORICO ALEJANDRO, IRENEO POLICARPIO, VIRGINIA ALEJANDRO, MARIA ALEJANDRO, SALUD ALEJANDRO, EMILIA ALEJANDRO, FLORENCIO ALEJANDRO and DIONISIA ALEJANDRO, petitioners, vs. HON. AMBROSIO M. GERALDEZ, Presiding Judge, Court of First Instance of Bulacan, Branch V, Sta. Maria, ANDREA DIAZ and ANGEL DIAZ, respondents. G.R. No. L-33968 August 18, 1977 ANDREA DIAZ, petitioner, vs. HON. AMBROSIO M. GERALDEZ, in his capacity as Presiding Judge of the Court of First Instance of Bulacan, Branch V, TEODORICO ALEJANDRO, IRENEO POLICARPIO, VIRGINIA ALEJANDRO, MARIA ALEJANDRO, EMILIA ALEJANDRO, FLORENCIO ALEJANDRO and DIONISIA ALEJANDRO, respondents. Ponciano G. Hernandez for Teodorico Alejandro, et al. Porfirio Villaroman for Andrea Diaz and Angel Diaz.

lalawigan ng Bulacan, Pilipinas, ngayong ika 20 ng Enero, 1949, ng mag-asawang GABINO DIAZ at SEVERA MENDOZA, filipinos, may mga sapat na gulang, naninirahan sa nayon ng Parada, Sta. Maria, Bulacan na dito'y kinikilalang NAGKALOOB (DONORS), sa kapakanan nila REGINA FERNANDO, filipina, may sapat na gulang, viuda; OLIMPIA DIAZ, filipina, may sapat na gulang, kasal kay Teodorico Alejandro, ANGEL DIAZ, filipino, may sapat na gulang, kasal kay Catalina Marcelo, at ANDREA DIAZ, filipina, may sapat na gulang, kasal kay Perfecto Marcelo, mga naninirahan sa nayon ng Parada, Sta. Maria, Bulacan, na dito'y kinikilalang PINAGKALOOBAN (DONEES). PAGPAPATUNAY: Na ang Nagkaloob (DONORS) ay siyang mayari, at kamayari at namomosision sa kasalukuyan ng mga parcelang lupa kasama ang mga kagalingan na nasa lugar ng Parada, Sta. Maria, Bulacan, mapagkikilala sa paraang mga sumusunod (description and statements 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 na taglay 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 nabanggit na nagkakaloob sa pamamagitan ng kasulatang ito ng pagkakaloob (Donation) ay buong pusong inililipat at lubos na ibinibigay sa nasabing pinagkakalooban ang lupang binabanggit at makikilala sa unahan nito, laya sa ano mang sagutin at pagkakautang, katulad nito: (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 ng mag-asawang Gabino Diaz at Severa Mendoza sa kanilang anak na si 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 si Andrea Diaz, kasal kay Perfecto Marcelo."

AQUINO. J. This is a case about donations inter vivos and mortis causa . The bone 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 Certificate of Title No. 7336. The facts are as follows: On January 20, 1949 the spouses Gabino (Gavino) Diaz and Severa Mendoza, their daughter-in-law Regina Fernando and their three children, Olimpia Diaz, Angel Diaz and Andrea Diaz, executed a deed of donation covering eight lots of the Lolomboy Friar Lands Estate, owned by the Diaz spouses, located at Barrio Parada, Sta. Maria, Bulacan. The deed reads as follows: KASULATAN NG PAGKAKALOOB (A DEED OF DONATION) ALAMIN NG LAHAT NG MAKATUTUNGHAY NITO: Ang pagkakaloob (donation) na ito, ginawa at pinagtibay dito sa municipio ng Sta. Maria,

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(Note Some dispositions are not reproduced verbatim but are merely 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 equal shares. (c) Lot No. 2377, TCT No. 10840, 1/3 to Angel Diaz, 1/3 to Andrea Diaz, and 1/3 "ay inilalaan o inihahanda ng mag-asawang Gabino Diaz at Severa Mendoza sa kanilang sariling kapakanan o mga gastos nila.

SA KATUNAYAN NG LAHAT, linagdaan namin ang kasulatang ito, dito sa Sta. Maria, Bulacan, ngayon ika 20 ng Enero, 1949, sa patibay ng dalawang sacsing kaharap. Signature Thumbmark Signature GABINO DIAZ SEVERA MENDOZA REGINA FERNANDO Thumbmark Signature Signature OLIMPIA DIAZ ANGEL DIAZ ANDREA DIAZ (Acknowledgment signed by Notary Celedonio Reyes is omitted) Gabino Diaz died in 1962. On October 20, 1964 Severa Mendoza and her two children, Andrea Diaz and Angel Diaz, executed a deed of donation denominated as "Kasulatan ng Pagbibigay na Magkakabisa Pagkamatay (Donation Mortis causa )" over one-half of Lot No. 2377-A, which is a portion of Lot No. 2377 of the Lolomboy Friar Lands Estate (which in turn is item 3 or [c] in the 1949 deed of donation already mentioned).

(d) Lot No. 2448, TCT No. 10997 to Olimpia Diaz sa condicion na pagkakalooban ni Olimpia Diaz si Crisanta de la Cruz, asawa ni Alejandro - - - - (sic) sakaling si Crisanta ay mamatay ng In that deed of donation, Severa Mendoza donated to Andrea Diaz halagang isang daang piso (P100), bilang her one-half share in Lot 2377-A, which one-half share is Identified gastos sa libing." as Lot 2377-A-1, on condition that Andrea Diaz would bear the funeral expenses to be incurred after the donor's death. She died in 1964. (e) Na ang lupang-solar na sinasaysay sa Lote No. 4168 o Titulo No. 2051 (No. 5); lupangbukid na sinasaysay sa Lote No. 25?2 o Titulo No. 17960 (No. 6); at lupang-bukid na sinasaysay sa Lote No. 2521 o Titulo No. 17961 (No. 7) sa unahan nito ay inilalaan 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 her children with the deceased Miguel Diaz in whose name the said Lot was already registered. Na kaming mga pinagkakalooban (DONEES) na sila Regina Fernando, 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 ang kagandahang loob at paglingap na ipinakita at ginawa ng nagkakaloob (Donors). AT SA WAKAS, ang pagkakaloob na ito (DONATION), ay sumasailalim sa paraang mga sumusunod: 1. Ang mga Pinagkakalooban (Donatarios) na sila Regina Fernando, Olimpia Diaz, Angel Diaz, at Andrea Diaz, siyang nakaaalam sa mga gastos sa pagkakasakit at sa libing ng NAGKALOOB (DONANTE); 2. Na ang mga Pinagkalooban (DONATARIOS) ay hindi maaaring makapagbili sa pangatlong tao ng nasabing mga pagaari samantalang ang nagkaloob (Donante) ay buhay Datapwa't kung ang pagbibiling gagawin ay upang malunasan ang mga gastos at menitencion ng Nagkaloob (Donante) samakatuwid ang nasabing pagbibili ay matuwid; 3. Gayun din, samantalang kaming magasawang Gabino Diaz at Severa Mendoza ay buhay, patuloy ang aming pamamahala, karapatan, at pagkamay-ari sa mga nasabing pagaari na sinasaysay sa unahan nito na pagaari namin; ngunit sakaling kami ay bawian ng buhay ng Panginoong Dios at mamatay na ang mga karapatan at pagkamay-ari ng bawa't Pinagkalooban (Donatarios) sa bawa't pag-aari na nauukol sa bawa't isa ay may lubos na kapangyarihan." It should be noted that the other one-half share in Lot 2377-A or Lot No. 2377-A-2 was previously adjudicated to Angel Diaz because he defrayed the funeral expenses on the occasion of the death of Gabino Diaz. On May 12, 1970 Andrea Diaz sued her brother, Angel Diaz, in the Court of First Instance of Bulacan, Sta. Maria Branch V for the partition of Lots Nos. 2377-A and 2502 (Civil Case No. SM-357). Teodorico Alejandro, the surviving spouse of Olimpia Diaz, and their children intervened in the said case. They claimed one-third of Lot No. 2502. Angel Diaz alleged in his answer that he had. been occupying his share of Lot No. 2502 "for more than twenty years". The intervenors claimed that the 1949 donation was a void mortis causa disposition. On March 15, 1971 the lower court rendered a partial decision with respect to Lot No. 2377-A. The case was continued with respect to Lot No. 2502 which is item No. 1 or (a) in the 1949 deed of donation. The record does not show what happened to the other six lots mentioned in the deed of donation. The trial court in its decision of June 30, 1971 held that the said deed of donation was a donation mortis causa because the ownership of the properties donated did not pass to the donees during 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 equal parts between Angel Diaz and Andrea Diaz on the theory that the said deed of donation was effective "as an extra-judicial partition among the parents and their children. Consequently, the Alejandro intervenors were not given any share in Lot No. 2502. Angel Diaz and the intervenors were ordered to pay Andrea Diaz "attorney's fees of P1,000 each or a total of P2,000". The Alejandro intervenors filed a motion for reconsideration, On July 16, 1971 the trial court denied that motion but eliminated the attorney's fees. Andrea Diaz and the Alejandro intervenors filed separate appeals to this Court under Republic Act No. 5440. Andrea Diaz contends that the 1949 deed of donation is a valid donation inter vivos and that the trial court erred in deleting the award for attorney's fees. The Alejandro intervenors contend that the said donation is mortis causa ; 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 valid partition. In the ultimate analysis, the appeal involves the issue of whether the Alejandro intervenors should be awarded one-third of Lot No. 2502, or 1,892 square meters thereof, as intestate heirs of the Diaz spouses.

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To resolve that issue, it is necessary to determine whether the deed of donation is inter vivos or mortis causa. A brief exposition on the nature of donation inter vivos and mortis causa may facilitate the resolution of that issue. Many legal battles have been fought on the question of whether a particular deed is an inter vivos or mortis causa donation. The copious jurisprudence on that point sheds light on that vexed question. The Civil Code provides: 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. (620). ART. 729. When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor's death, this shall be a donation inter vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise. (n) ART. 730. The fixing of an event or the imposition of a suspensive condition, which may take place beyond the natural expectation of life of the donor, does not destroy the nature of the act as a donation inter vivos unless a contrary intention appears. (n)

Mondragon, 35 Phil. 105). The execution of a public instrument is a mode of delivery or tradition (Ortiz vs. Court of Appeals, 97 Phil. 46). 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 only 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 (Bonsato vs. Court of Appeals, 95 Phil. 481). But if the donation takes effect during the donor's lifetime or independently of the donor's death, meaning that the full or naked ownership (nuda proprietas) ) of the donated properties passes to the donee during the donor's lifetime, not by reason of his death but because of the deed of donation, then the donation is inter vivos (Castro vs. Court of Appeals, L-20122, April 28, 1969, 27 SCRA 1076). The effectivity of the donation should be ascertained from the deed of 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 accrued immediately upon the effectivity of the instrument and not upon the donor's death, the donation is inter vivos (Kiene vs. Collector of Internal Revenue, 97 Phil. 352).

There used to be a prevailing notion, spawned by a study of Roman Law, that the Civil Code recognizes a donation mortis as a juridical act in contraposition to a donation inter vivos. That ART. 731. When a person donates something impression persisted because the implications of article 620 of the subject to the resolutory condition of the donor's Spanish Civil Code, now article 728, that "las donaciones que survival, there is a donation inter vivos. (n) hayan de producir sus efectos pro muerte del donante participan de la naturaleza de las disposiciones de ultima voluntad, y se regiran por las reglas establecidas en el capitulo de la sucesion ART. 732. Donations which are to take effect testamentaria" had not been fully expounded in the law schools. inter vivos shall be governed by the general provisions on contracts and obligations in all that Notaries assumed that the donation mortis causa of the Roman Law was incorporated into the Civil Code. 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 to have some familiarization with the distinctions between donations inter vivos and mortis causa because the Code prescribes different formalities for the two kinds of donations. An utter vivos donation of real property must be evidenced by a public document and should be accepted by the donee in the same deed of donation or in a separate instrument. In the latter case, the donor should be notified of the acceptance in an authentic form and that step should be 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 called donation mortis causa . It is in reality a legacy (5 Manresa, Codigo Civil, 6th Ed., p. 107). If not embodied in a valid will, the donation is void (Narag vs. Cecilio, 109 Phil. 299; Aznar vs. Sucilla 102 Phil. 902; Tuazon vs. Posadas, 54 Phil. 289; Serrano vs. Solomon, 105 Phil. 998, 1002). This Court advised notaries to apprise donors of the necessity of clearly specifying whether, notwithstanding the donation, they wish to retain the right to control and dispose at will of the property before their death, without the consent or intervention of the beneficiary, since the reservation of such right would be a conclusive indication that the transfer' would be effective only at the donor's death, and, therefore, the formalities of testaments should be observed; while, a converso, the express waiver of the right of free disposition would place the inter vivos character of the donation beyond dispute (Cuevas vs. Cuevas, 98 Phil. 68,72). From the aforequoted articles 728 to 732, it is evident that it is the time of effectivity (aside from the form) which distinguishes a donation inter vivos from a donation mortis causa . And the effectivity is determined by the time when the full or naked ownership (dominum plenum or dominium directum) of the donated properties is transmitted to the donees. (See Lopez vs. Olbes, 15 Phil. 540; Gonzales and Fuster Fabra vs. Gonzales As explained by Justice J. B. L. Reyes in the Bonsato case, supra, article 620 broke away from the Roman Law tradition and followed the French doctrine that no one may both donate and retain. Article 620 merged donations mortis causa with testamentary dispositions and thus suppressed the said donations as an independent legal concept. Castan Tobenas says: (b) Subsisten hoy en nuestro Derecho las donaciones mortis causa ? De lo que acabamos de decir se desprende que las donaciones mortis causa han perdido en el Codigo civil su caracter distintivo y su naturaleza, y hay que considerarlas hoy como una institucion suspirimida, refundida en la del legado. ... La tesis de la desaparicion de las donaciones mortis causa en nuestro Codigo Civil, acusada ya precedentemente por el projecto de 1851, puede decirse que constituye una communis opinio entre nuestros expositores, incluso los mas recientes. ... Garcia Goyena, comentando dicho proyecto, decia que la Comision se habia adherido al acuerdo de suprimir las donaciones mortis causa , seguido por casi todos los Codigos modernos. Las donaciones mortis causa a;adia-eran una especie de montsruo entre los contratos y ultimas voluntades; las algarabia del Derecho romano y patrio sobre los puntos de semenjanza y disparidad de estas donaciones con los pactos y legados no podia producir sino dudas, confusion y pleitos en los rarisimos casos que ocurriesen por la dificuldad de apreciar y fijar sus verdaderos caracteres' "(4 Derecho Civil Espanol, Comun y Foral, 8th Ed., 1956, pp. 182-3).

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Manresa is more explicit. He says that "la disposicion del articulo 620 significa, por lo tanto: (1) que han desaperacido las llamadas antes donaciones mortis causa , por lo que el Codigo no se ocupa de ellas en absoluto; (2) que toda disposicion de bienes para despues de la muerte sigue las reglas establecidas para la sucesion testamentaria" (5 Comentarios al Codigo Civil Espanol, 6th Ed., p.107). Note that the Civil Code does not use the term donation mortis causa . ( Section 1536 of the Revised Administrative Code in imposing the inheritance tax uses the term "gift mortis causa ").lwphl@it What are the distinguishing characteristics of a donation mortis causa? Justice Reyes in the Bonsato case says that in a disposition post mortem (1) the transfer conveys no title or ownership to the transferee before the death of the tansferor, or the transferor (meaning testator) retains the ownership, full or naked (domino absoluto or nuda proprietas) (Vidal vs. Posadas, 58 Phil. 108; De Guzman vs. Ibea, 67 Phil. 633; (2) the transfer is revocable before the transferor's death and revocabllity may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed (Bautista vs. Sabiniano, 92 Phil. 244), and (3) the transfer would be void if the transferor survived the transferee. In other words, in a donation mortis causa it is the donor's death that determines that acquisition of, or the right to, the property donated, and the donation is revocable at the donor's will, Where the donation took effect immediately upon the donee's acceptance thereof and it was subject to the resolutory condition that the donation would be revoked if the donee did not give the donor a certain quantity of rice or a sum of money, the donation is inter vivos (Zapanta vs. Posadas, Jr., 52 Phil. 557).

6. That a conveyance for an onerous consideration is governed by the rules of contracts and not by those of donations or testaments (Carlos vs. Ramil, 20 Phil. 183; Manalo vs. De Mesa, 29 Phil. 495). 7. That 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. It may be added that the fact that the donation is given in consideration of love and affection or past or future services is not a characteristic of donations inter vivos because transfers mortis causa may be made also for those reasons. There is difficulty in applying the distinctions to controversial cases because it is not easy sometimes to ascertain when the donation takes effect or when the full or naked title passes to the transferee. As Manresa observes, "when the time fixed for the commencement of the enjoyment of the property donated be at the death of the donor, or when the suspensive condition is related to his death, confusion might arise" (5 Codigo Civil, 6th Ed., p. 108). The existence in the deed of donation of conflicting stipulations as to its effectivity may generate doubt as to the donor's intention and as to the nature of the donation (Concepcion vs. Concepcion, 91 Phil. 823).

Where the donor declared in the deed that the conveyance was mortis causa and forbade the registration of the deed before her death, the clear inference is that the conveyance was not intended to produce any definitive effect nor to pass any interest to the Justice Reyes in the subsequent cast of Puig vs. Penaflorida, Lgrantee except after her death. In such a case, the grantor's 15939, November 29, 1965, 15 SCRA 276, synthesized the rules reservation of the right to dispose of the property during her as follows: lifetime means that the transfer is not binding on her until she dies. It does not mean that the title passed to the grantee during her 1. That the Civil Code recognizes only gratuitous lifetime. (Ubalde Puig vs. Magbanua Penaflorida, L-15939, Resolution of January 31, 1966, 16 SCRA 136). transfers of property which are effected by means of donations inter vivos or by last will and testament executed with the requisite legal In the following cases, the conveyance was considered a void formalities. mortis causa transfer because it was not cast in the form of a last will and testament as required in article 728, formerly article 620: 2. That in inter vivos donations the act is immediately operative even if the material or physical deliver (execution) of the property may be deferred until the donor's death, whereas, in a testamentary disposition, nothing is conveyed to the grantee and nothing is acquired by him until the death of the grantortestator. The disposition is ambulatory and not final. 3. That in a mortis causa disposition the conveyance or alienation should be (expressly or by necessary implication) revocable ad nutum or at the discretion of the grantor or so called donor if he changes his mind (Bautista vs. Saniniano, 92 Phil. 244). 4. That, consequently, the specification in the deed of the cases whereby the act may be revoked by the donor indicates that the donation is inter vivos and not a mortis causa disposition (Zapanta vs. Posadas, 52 Phil. 557). 5. That the designation of the donation as mortis causa , or a provision in the deed to the effect the donation "is to take effect at the death of the donor", is not a controlling criterion because those statements are to be construed together with the rest of the instrument in order to give effect to the real intent of the transferor (Laureta vs. Mata and Mango, 44 Phil. 668; Concepcion vs. Concepcion, 91 Phil. 823; Cuevas vs. Cuevas, 98 Phil. 68). (a) Where it was stated in the deed of donation that the donor wanted to give the donee something "to take effect after his death" and that "this donation shall produce effect only by and because of the death of the donor, the property herein donated to pass title after the donor's death" (Howard vs. Padilla, 96 Phil. 983). In the Padilla case the donation was regarded as mortis causa although the donated property was delivered to the donee upon the execution of the deed and although the donation was accepted in the same deed. (b) Where it was provided that the donated properties would be given to the donees after the expiration of thirty days from the donor's death, the grant was made in the future tense, and the word "inherit" was used (Carino vs. Abaya, 70 Phil. 182). (c) Where the donor has the right to dispose of all the donated properties and the products thereof. Such reservation is tantamount to a reservation of the right to revoke the donation (Bautista vs. Sabiniano 92 Phil. 244). (d) Where the circumstances surrounding the execution of the deed of donation reveal that the donation could not have taken effect before the donor's death and the rights to dispose of the donated properties and to enjoy the fruits remained with the donor during her lifetime (David vs. Sison, 76 Phil. 418). But if the deed of donation makes an actual conveyance of the property to the donee, subject to a life estate in the donors, the donation is is inter vivos (Guarin vs. De Vera, 100 Phil. 1100). Articles 729, 730 and 731 have to some extent dissipated the confusion surrounding the two kinds of donation. The rule in article

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729 is a crystallization of the doctrine announced in decided cases. A clear instance where the donor made an inter vivos donation is found in De Guzman vs. Ibea 67 Phil. 633. In that case, it was provided in the deed that the donor donated to the donee certain properties so that the donee "may hold the same as her own and always" and that the donee would administer the lands donated and deliver the fruits thereof to the donor, as long as the donor was alive, but upon the donor's death the said fruits would belong to the donee. It was held that the naked ownership was conveyed to the donee upon the execution of the deed of donation and, therefore, the donation became effective during the donor's lifetime.

the donee to the donor and of the donor's affection for the donee; that the donor had reserved what was necessary for his maintenance, and that the donation "ha de producir efectos solamente por muerte de la donante". It was ruled that the donation was inter vivos because the stipulation that the donation would take effect only after the donor's death "simply meant that the possession and enjoyment, of the fruits of the properties donated' should take effect only after the donor's death and not before". Resolution of the instant case. The donation in the instant case is inter vivos because it took effect during the lifetime of the donors. It was already effective during the donors' lifetime, or immediately after the execution of the deed, as shown by the granting, habendum and warranty clause of the deed (quoted below).

In Sambaan vs. Villanueva, 71 Phil. 303, the deed of donation, as in Balaqui vs. Dongso, 53 Phil. 673, contained conflicting provision. It was provided in the deed that the donation was made "en consideracion al afecto y carino" of the donor for the donee but In that clause it is stated that, in consideration of the affection and that the donation "surtira efectos despues de ocurrida mi muerte esteem of the donors for the donees and the valuable services (donor's death). rendered by the donees to the donors, the latter, by means of the deed of donation, wholeheartedly transfer and unconditionally give That donation was held to be inter vivos because death was not to the donees the lots mentioned and described in the early part of the deed, free from any kind of liens and debts: the consideration for the donation but rather the donor's love and affection for the donee. The stipulation that the properties would be delivered only after the donor's death was regarded as a mere Na dahil at alang-alang sa modality of the contract which did not change its inter vivos pagmamahal at masuyong character. The donor had stated in the deed that he was donating, pagtingin na taglay ng ceding and transferring the donated properties to the donee. (See NAGKAKALOOB (DONORS) Joya vs. Tiongco, 71 Phil. 379). sa Pinagkakalooban In Laureta vs. Mata and Magno, 44 Phil. 668 the deed of donation provided that the donor was donating mortis causa certain properties as a reward for the donee's services to the donor and as a token of the donor's affection for him. The donation was made under the condition that "the donee cannot take possession of the properties donated before the death of the donor"; that the ' donee should cause to be held annually masses for the repose of the donor's soul, and that he should defray the expenses for the donor's funeral. It was held that the said donation was inter vivos despite the statement in the deed that it was mortis causa . The donation was construed as a conveyance in praesenti ("a present grant of a future interest") because it conveyed to the donee the title to the properties donated "subject only to the life estate of the donor" and because the conveyance took effect upon the making and delivery of the deed. The acceptance of the donation was a circumstance which was taken into account in characterizing the donation as inter vivos. In Balacui vs. Dongso, supra, the deed of donation involved was more confusing than that found in the Laureta case. In the Balaqui case, it was provided in the deed that the donation was made in consideration of the services rendered to the donor by the donee; that "title" to the donated properties would not pass to the donee during the donor's lifetime, and that it would be only upon the donor's death that the donee would become the "true owner" of the donated properties. However, there was the stipulation that the donor bound herself to answer to the donee for the property donated and that she warranted that nobody would disturb or question the donee's right. Notwithstanding the provision in the deed that it was only after the donor's death when the 'title' to the donated properties would pass to the donee and when the donee would become the owner thereof, it was held in the Balaqui case that the donation was inter vivos. It was noted in that case that the donor, in making a warranty, implied that the title had already been conveyed to the donee upon the execution of the deed and that the donor merely reserved to herself the "possesion and usufruct" of the donated properties. In Concepcion vs. Concepcion, 91 Phil. 823, it was provided in the deed of donation, which was also styled as mortis causa , that the donation was made in consideration of the services rendered by (DONEES) gayun din sa tapat at mahalagang paglilingkod noong mga lumipas na panahon na ginawa ng huli sa una ang nabanggit na nagkakaloob sa pamagitan ng kasulatang ito ng pagkakaloob (Donation) ay buong pusong inililipat at lubos na ibinibigay sa nasabing pinagkakalooban ang lupang binabanggit at makikilala sa unahan nito, laya sa ano mang sagutin at pagkakautang, katulad nito: Following the above-ousted granting, habendum and warranty clause is the donors' declaration that they donate ( ipinagkakaloob) Lot No. 2502, the property in litigation, in equal shares to their children Angel Diaz and Andrea Diaz, the western part to Angel and the eastern part to Andrea. The acceptance clause is another indication that the donation is inter vivos. Donations mortis causa , being in the form of a will, are never accepted by the donees during the donors' lifetime. Acceptance is a requirement for donations inter vivos. In the acceptance clause herein, the donees declare that they accept the donation to their entire satisfaction and, by means of the deed, they acknowledge and give importance to the generosity and solicitude shown by the donors and sincerely thank them. In the reddendum or reservation clause of the deed of donation, it is stipulated that the donees would shoulder the expenses for the illness and the funeral of the donors and that the donees cannot sell to a third person the donated properties during the donors' lifetime but if the sale is necessary to defray the expenses and support of the donors, then the sale is valid. The limited right to dispose of the donated lots, which the deed gives to the donees, implies that ownership had passed to them by means of' the donation and that, therefore, the donation was already effective during the donors' lifetime. That is a characteristic of a donation inter vivos. However, paragraph 3 of the reddendum in or reservation clause provides that "also, while we, the spouses Gabino Diaz and Severa Mendoza, are alive, our administration, right, and

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ownership of the lots mentioned earlier as our properties shall continue but, upon our death, the right and ownership of the donees to each of the properties allocated to each of them shall be fully effective." The foregoing is the translation of the last paragraph of the deed of donation which reads: (3) Gayun din samantalang kaming magasawang Gabino Diaz at Severa Mendoza ay buhay, patuloy and aming pamamahala, karapatan, at pagkamayari sa mga nasabing pagaari na sinasaysay sa unahan nito na pagaari namin; ngunit sakaling kami ay bawian ng buhay ng Panginoong Dios at mamatay na, ang mga karapatan at pagkamayari ng bawa't pinagkalooban (Donatorios) sa bawa't pagaari nauukol sa bawa't isa ay may lubos na kapangyarihan. Evidently, the draftsman of the deed did not realize the discordant and ambivalent provisions thereof. The habendum clause indicates the transfer of the ownership over the donated properties to the donees upon the execution of the deed. But the reddendum clause seems to imply that the ownership was retained by the donors and would be transferred to the donees only after their death. We have reflected on the meaning of the said contradictory clauses. All the provisions of the deed, like those of a statute and testament, should be construed together in order to ascertain the intention of the parties. That task would have been rendered easier if the record shows the conduct of the donors and the donees after the execution of the deed of donation. But the record is silent on that point, except for the allegation of Angel Diaz in his answer (already mentioned) that he received his share of the disputed lot long before the donors' death and that he had been "openly and adversely occupying" his share "for more than twenty years". (Andrea Diaz on page 17 of her brief in L33849 states that the donees took possession of their respective shares as stipulated in the deed of donation. Pages 3,4,18 and 19, tsn March, 1971).

donors' lifetime. It may he noted that in that deed Lot No. 2377 (items 3 and [c]) was divided into three equal parts: one-third was donated to Andrea Diaz and one-third to Angel Diaz. The remaining one-third was reserved and retained by the donors, the spouses Gabino Diaz and Severo Mendoza, for their support. That reserved one-third portion came to be known as Lot No. 2377-A. In 1964 or after the death of Gabino Diaz, his surviving spouse Severa Mendoza executed a donation mortis causa wherein she conveyed to her daughter, Andrea Diaz (plaintiff-appellant herein), her one-half share in Lot No. 2377-A, which one-half share is known as Lot No. 2377-A-1, the other half or Lot No. 2377-A-2 having been already conveyed to Angel Diaz. That disposition of Lot No. 2377-A-2 clearly implies that the conveyance in the 1949 deed of donation as to Lot No. 2377 took effect during the lifetime of the donors, Gabino Diaz and Severa Mendoza, and proves that the 1949 donation was inter vivos. The instant case has a close similarity to the pre-war cases already cited and to three post-liberation cases. In the Bonsato case, the deed of donation also contained contradictory dispositions which rendered the deed susceptible of being construed as a donation inter vivos or as a donation causa. It was stated in one part of the deed that the donor was executing "una donacion perfects e irrevocable consumada" in favor of the donee in consideration of his past services to the donor; that at the time of the execution of the deed, the donor "ha entregado" to the donee "dichos terrenos donados'; that while the donor was alive, he would receive the share of the fruits corresponding to the owner; and "que en vista de la vejez del donante, el donatario Felipe Bonsato tomara posesion inmediatamente de dichos terrenos a su favor". These provisions indicate that the donation in question was inter vivos

However, in the last clause of the deed in the Bonsato case (as in the instant case), it was provided 'que despues de la muerte del donante entrara en vigor dicha donacion y el donatario Felipe Bonsato tendra todos log derechos de dichos terrernos en concepto de dueno absolute de la propriedad libre de toda responsabilidad y gravemen y pueda ejercitar su derecho que crea Our conclusion is that the aforequoted paragraph 3 of the conveniente". These provisions would seem to show that the reddendum or reservation clause refers to the beneficial ownership donation was mortis causa . (dominium utile) and not to the naked title and that what the donors reserved to themselves, by means of that clause, was the Nevertheless, it was held in the Bonsato case that the donation management of the donated lots and the fruits thereof. But, was inter vivos because (1) the ownership of the things donated notwithstanding that reservation, the donation, as shown in the passed to the donee; (2) it was not provided that the transfer was habendum clause, was already effective during their lifetime and revocable before the donor's death, and (3) it was not stated that was not made in contemplation of their death because the deed the transfer would be void if the transferor should survive the transferred to the donees the naked ownership of the donated transferee. properties. That conclusion is further supported by the fact that in the deed of donation, out of the eight lots owned by the donors, only five were donated. Three lots, Lots Nos. 4168, 2522 and 2521 were superflously reserved for the spouses or donors in addition to onethird of Lot No. 2377. If the deed of donation in question was intended to be a mortis causa disposition, then all the eight lots would have been donated or devised to the three children and daughter-in-law of the donors. The trial court's conclusion that the said deed of donation, although void as a donation inter vivos is valid "as an extrajudicial partition among the parents and their children" is not well-taken. Article 1080 of the Civil Code provides that 46 should a person make a partition of his estate by an act inter vivos or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs." It was further held in the Bonsato case that the stipulation "que despues de la muerte del donante entrara en vigor dicha donacion", should be interpreted together with the prior provision regarding its irrevocable and consummated character, and that would mean that the charge or condition as to the donor's share of the fruits would be terminated upon the donor's death. The Puig case, supra, is even more doubtful and controversial than the instant case. In the Puig case, the donor, Carmen Ubalde Vda. de Parcon, in a deed entitled "Donacion Mortis causa dated November 24, 1948 cede y transfiere en concepto de donacion mortis causa to the donee, Estela Magbanua Penaflorida three parcels of land in consideration of the donee's past services and the donor's love and affection for the latter.

It was stipulated in the deed that the donor could alienate or mortgage the donated properties "cuando y si necesita fondos para satisfacer sus proprias necesidades sin que para ello tega We have already observed that the said donation was not a que intervener la Donataria, pues su consentimiento se sobre partition of the entire estate of the Diaz spouses since, actually, entiende aqui parte de que la donacion que aqui se hace es mortis only five of the eight lots, constituting their estate, were partitioned. causa , es decir que la donacion surtira sus efectos a la muerte de Hence, that partition is not the one contemplated in article 1080. la donante". It was repeated in another clause of the deed "que lacesion y transferencia aqui provista surtira efecto al fallecer la Donante". There is another circumstance which strengthens ' the view that the 1949 deed of donation in question took effect during the

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It was further stipulated that the donee would defray the medical and funeral expen of the donor unless the donor had funds in the bank or "haya cosecho levantada or recogida en cual caso dichos recursos responderan portales gastos a disposicion y direccion de la donataria". Another provision of the deed was that it would be registered only after the donor's death. In the same deed the donee accepted the donation. In the Puig case the donor in another deed entitled Escritura de Donacion mortis causa " dated December 28, 1949 donated to the same donee, Estela Magbanua Penaflorida three parcels of land en concepto de una donacion mortis causa " in consideration of past services. It was provided in the deed "que antes de su nuerte la donante, podra enajenar vender traspasar o hipotecar a cualesquiera persona o entidades los bienes aqui donados a favor de la donataria en concepto de una donacion mortis causa ". The donee accepted the donation in the same deed. After the donor's death both deeds were recorded in the registry of deeds. In the donor's will dated March 26, 1951, which was duly probated, the donation of a parcel of land in the second deed of donation was confirmed. Under these facts, it was held that the 1948 deed of donation mortis causa was inter vivos in character in spite of repeated expressions therein that it was a mortis causa donation and that it would take effect only upon the donor's death. Those expressions were not regarded as controlling because they were contradicted by the provisions that the donee would defray the donor's expenses even if not connected with her illness and that the donee's husband would assume her obligations under the deed, should the donee predecease the donor. Moreover, the donor did not reserve in the deed the absolute right to revoke the donation. But the 1949 deed of donation was declared void because it was a true conveyance mortis causa which was not embodied in a last will and testament. The mortis causa character of the disposition is shown by the donor's reservation of the right to alienate or encumber the donated properties to any person or entity. In the Cuevas case, supra, one Antonina Cuevas executed on September 18, 1950 a notarial conveyance styled as "Donacion Mortis causa " where she ceded to her nephew Crispulo Cuevas a parcel of unregistered land. Crispulo accepted the donation in the same instrument. Subsequently, or on May 26, 1952, the donor revoked the donation.

The donee was not guilty of ingratitude. The other point to be disposed of is the matter of the claim for attorney's fees of Andrea Diaz against the Alejandro intervenors. The other point to be disposed of is the matter of the claim for attorney's fees of Andrea Diaz against the Alejandro intervenors. After a careful consideration of the facts and circumstances of the case, particularly the apparent good faith of the Alejandro intervenors in asserting a one-third interest in the disputed lot and their close relationship to Andrea Diaz, we find that it is not proper to require them to pay attorney's fees (Salao vs. Salao, L-26699, March 16, 1976, 70 SCRA 65). (Andrea Diaz did not implead Angel Diaz as a respondent in her petition for review.) WHEREFORE, the trial court's amended decision is reversed insofar as it pronounces that the deed of donation is void. That donation is declared valid as a donation inter vivos. The disputed lot should be partitioned in accordance with that deed between Andrea Diaz and Angel Diaz. The decision is affirmed insofar as it does not require the Alejandro intervenors to pay attorney's fees to Andrea Diaz. No costs. SO ORDERED. Fernando (Chairman), Barredo, Concepcion, Jr. and Santos, JJ., concur.

Separate Opinions

ANTONIO, J., concurring: I concur. I agree that all the features pointed out by Justice Aquino indicate that the conveyance was intended to produce definitive effect upon the execution of said instrument. For the important characteristic of a donation inter vivos is that it takes effect independently of the donor's death. Thus, when the donor states that he donates the properties subject to the "condition that the The deed of donation in the Cuevas case contained the following donee cannot take ion of the properties donated until after my 1 provisions which, as in similar cases, are susceptible of being death'. or the ownership and possession of the property, as wen construed as making the conveyance an inter vivos or a mortis as its administration,. were turned over to the donee, but the right causa transfer: to reap and dispose of the fruits was deferred until after the death 2 of the donor or when it was expressly stated that the donation would take effect upon acceptance, but would be revoked ipso "Dapat maalaman ni Crispulo Cuevas na samantalang ako ay 3 nabubuhay, ang lupa na ipinagkakaloob ko sa kaniya ay ako pa rin facto upon the non-fulfillment of certain conditions, it has been held that the donation is inter vivos, and the ownership over the ang patuloy na mamomosecion, makapagpapatrabajo, 4 property donated is transferred to the donee. makikinabang at ang iba pang karapatan sa pagmamayari ay sa akin pa rin hanggang hindi ako binabawian ng buhay ng Maykapal at ito naman ay hindi ko nga iyaalis pagkat kung ako ay mamatay A donation inter vivos is a gratuitous contract whereby the donor na ay inilalaan ko sa kaniya." divests himself, at present and irrevocably, of the thing given in favor of the donee and, therefore, like any other contract, requires the concurrence of the reciprocal consent of the parties, and does Translation 5 not become perfect until it is accepted by the donee. As 6 observed by Manresa, upon acceptance by the donee, the donor "Crispulo Cuevas should know that while I am alive, the land which can no longer withdraw, and he can be compelled to comply with I donated to him will still be under my continued possession; I will his offering or to deliver the things he wanted to donate. be the one to have it cultivated; I will enjoy its fruits and all the Consequently, it may not be revoked unilaterally or by the sole and other rights of ownership until Providence deprives me of life and I arbitrary will of the donor. The donation, however, may be made 7 cannot take away the property from him because when I die I revocable upon the fulfillment of resolutory conditions, or may be reserve the property for him." (sic) revoked only for the reasons provided in Articles 760, 764 and 765 8 of the Civil Code. As explained in Bautista, et al. v. Sabiniano, It was held that the donation was inter vivos because the phrase except "in the instances expressly provided by law, such as the "hindi ko nga iyaalis (I will not take away the property") meant that subsequent birth of children of the donor, failure by the donee to the donor expressly renounced the right to freely dispose of the comply with the conditions imposed, ingratitude of the donee and property in favor of another person and thereby manifested the reduction of the donation in the event of inofficiousness thereof, a irrevocability of the conveyance of the naked title to the donee. donation is irrevocable. If the donor reserves the right to revoke it The donor retained the beneficial ownership or dominium utile or if he reserves the right to dispose of all the properties Being an inter vivos donation, it could be revoked by the donor purportedly donated, there is no donation. If the disposition or only on the grounds specified by law. No such grounds existed. conveyance or transfer takes effect. upon the donor's death and

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becomes irrevocable only upon his death, it is not inter vivos but a mortis causa donation." Here, the conveyance or alienation of the properties donated is not revocable ad nutum

granted the motion and issued an order, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the 1 government. Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended period 2 granted. This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion. An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991. Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate. Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain the status quo or lease 3 of the premises thereon to third parties. Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro. The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the 4 whole world. It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became

Separate Opinions ANTONIO, J., concurring: I concur. I agree that all the features pointed out by Justice Aquino indicate that the conveyance was intended to produce definitive effect upon the execution of said instrument. For the important characteristic of a donation inter vivos is that it takes effect independently of the donor's death. Thus, when the donor states that he donates the properties subject to the "condition that the donee cannot take ion of the properties donated until after my 1 death'. or the ownership and possession of the property, as wen as its administration,. were turned over to the donee, but the right to reap and dispose of the fruits was deferred until after the death 2 of the donor or when it was expressly stated that the donation would take effect upon acceptance, but would be revoked ipso 3 facto upon the non-fulfillment of certain conditions, it has been held that the donation is inter vivos, and the ownership over the 4 property donated is transferred to the donee. A donation inter vivos is a gratuitous contract whereby the donor divests himself, at present and irrevocably, of the thing given in favor of the donee and, therefore, like any other contract, requires the concurrence of the reciprocal consent of the parties, and does 5 not become perfect until it is accepted by the donee. As 6 observed by Manresa, upon acceptance by the donee, the donor can no longer withdraw, and he can be compelled to comply with his offering or to deliver the things he wanted to donate. Consequently, it may not be revoked unilaterally or by the sole and arbitrary will of the donor. The donation, however, may be made 7 revocable upon the fulfillment of resolutory conditions, or may be revoked only for the reasons provided in Articles 760, 764 and 765 8 of the Civil Code. As explained in Bautista, et al. v. Sabiniano, except "in the instances expressly provided by law, such as the subsequent birth of children of the donor, failure by the donee to comply with the conditions imposed, ingratitude of the donee and reduction of the donation in the event of inofficiousness thereof, a donation is irrevocable. If the donor reserves the right to revoke it or if he reserves the right to dispose of all the properties purportedly donated, there is no donation. If the disposition or conveyance or transfer takes effect. upon the donor's death and becomes irrevocable only upon his death, it is not inter vivos but a mortis causa donation." Here, the conveyance or alienation of the properties donated is not revocable ad nutum G.R. No. 108581 December 8, 1999 LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

YNARES-SANTIAGO, J.: May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents: Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court

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final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical questions in 5 connection therewith being for once and forever closed. Such final order makes the will conclusive against the whole world as to 6 its extrinsic validity and due execution. It should be noted that probate proceedings deals generally with 7 the extrinsic validity of the will sought to be probated, particularly on three aspects: n whether the will submitted is indeed, the decedent's last will and testament; n compliance with the prescribed formalities for the execution of wills;

set up to spur on the slothful. The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to 17 negligence, which circumstances do not concur herein. Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved 18 adversely by some other court. It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession.

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Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has 19 been filed." The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the n the same Order, the trial court also said that the estate of the late testamentar spouses be distributed according to the laws of intestacy. y capacity of Accordingly, it has no option but to implement that order of the testator; intestate distribution and not to reopen and again re-examine the 8 intrinsic provisions of the same will. n and the due execution of the last will and 9 testament. Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that 10 the will is genuine and not a forgery, that he was of the proper testamentary age and that he is a person not expressly prohibited 11 by law from making a will. The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been 12 authenticated. Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on 13 succession, the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts 14 must at some point of time fixed by law become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium the very object of which the courts were constituted was 15 to put an end to controversies. To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be It can be clearly inferred from Article 960 of the Civil Code, on the 20 law of successional rights that testacy is preferred to intestacy. But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is 21 presumed to give Nemo praesumitur donare. No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court. Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate. Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir. WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED. SO ORDERED. G.R. No. L-7188 August 9, 1954

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In re: Will and Testament of the deceased REVEREND SANCHO ABADIA. SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitionersappellees, vs. MIGUEL ABADIA, ET AL., oppositors-appellants. Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants. C. de la Victoria for appellees. MONTEMAYOR, J.: On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition. During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence.

authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses. And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared: From an examination of the document in question, it appears that the left margins of the six pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate. What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the The learned trial court found and declared Exhibit "A" to be a will and after the death of the testator lessen the formalities holographic will; that it was in the handwriting of the testator and required by law for the execution of wills, said subsequent statutes that although at the time it was executed and at the time of the should be applied so as to validate wills defectively executed testator's death, holographic wills were not permitted by law still, according to the law in force at the time of execution. However, we because at the time of the hearing and when the case was to be should not forget that from the day of the death of the testator, if decided the new Civil Code was already in force, which Code he leaves a will, the title of the legatees and devisees under it permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952, admitted to new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which probate Exhibit "A", as the Last Will and Testament of Father is invalid for failure to observe and follow the legal requirements at Sancho Abadia. The oppositors are appealing from that decision; the time of its execution then upon his death he should be and because only questions of law are involved in the appeal, the regarded and declared as having died intestate, and his heirs will case was certified to us by the Court of Appeals. then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such The new Civil Code (Republic Act No. 386) under article 810 requirements as to execution should be allowed to validate a thereof provides that a person may execute a holographic will defective will and thereby divest the heirs of their vested rights in which must be entirely written, dated and signed by the testator the estate by intestate succession. The general rule is that the himself and need not be witnessed. It is a fact, however, that at the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. time that Exhibit "A" was executed in 1923 and at the time that 231, pp. 192-193). Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not In view of the foregoing, the order appealed from is reversed, and folio or sheet) in letters and signing on the left hand margin by the Exhibit "A" is denied probate. With costs. testator and by the three attesting witnesses, requirements which G.R. No. L-33187 March 31, 1980 were not complied with in Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by the testator and were not numbered, and as to the three front CORNELIO PAMPLONA alias GEMINIANO PAMPLONA and pages, they were signed only by the testator. APOLONIA ONTE, petitioners, Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said: . . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the vs. VIVENCIO MORETO, VICTOR MORETO, ELIGIO MORETO, MARCELO MORETO, PAULINA MORETO, ROSARIO MORETO, MARTA MORETO, SEVERINA MENDOZA, PABLO MENDOZA, LAZARO MENDOZA, VICTORIA TUIZA, JOSEFINA MORETO, LEANDRO MORETO and LORENZO MENDOZA, respondents. E.P. Caguioa for petitioners. Benjamin C. Yatco for respondents.

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GUERRERO, J.: This is a petition for certiorari by way of appeal from the decision 1 of the Court of Appeals in CA-G.R. No. 35962-R, entitled "Vivencio Moreto, et al., Plaintiff-Appellees vs. Cornelio Pamplona, et al., Defendants-Appellants," affirming the decision of the Court of First Instance of Laguna, Branch I at Bian. The facts, as stated in the decision appealed from, show that: Flaviano Moreto and Monica Maniega were husband and wife. During their marriage, they acquired adjacent lots Nos. 1495, 4545, and 1496 of the Calamba Friar Land Estate, situated in Calamba, Laguna, containing 781-544 and 1,021 square meters respectively and covered by certificates of title issued in the name of "Flaviano Moreto, married to Monica Maniega." The spouses Flaviano Moreto and Monica Maniega begot during their marriage six (6) children, namely, Ursulo, Marta, La Paz, Alipio, Pablo, and Leandro, all surnamed Moreto. Ursulo Moreto died intestate on May 24, 1959 leaving as his heirs herein plaintiffs Vivencio, Marcelo, Rosario, Victor, Paulina, Marta and Eligio, all surnamed Moreto. Marta Moreto died also intestate on April 30, 1938 leaving as her heir plaintiff Victoria Tuiza. La Paz Moreto died intestate on July 17, 1954 leaving the following heirs, namely, herein plaintiffs Pablo, Severina, Lazaro, and Lorenzo, all surnamed Mendoza. Alipio Moreto died intestate on June 30, 1943 leaving as his heir herein plaintiff Josefina Moreto. Pablo Moreto died intestate on April 25, 1942 leaving no issue and as his heirs his brother plaintiff Leandro Moreto and the other plaintiffs herein. On May 6, 1946, Monica Maniega died intestate in Calamba, Laguna. On July 30, 1952, or more than six (6) years after the death of his wife Monica Maniega, Flaviano Moreto, without the consent of the heirs of his said deceased wife Monica, and before any liquidation of the conjugal partnership of Monica and Flaviano could be effected, executed in favor of Geminiano Pamplona, married to defendant Apolonia Onte, the deed of absolute sale (Exh. "1") covering lot No. 1495 for P900.00. The deed of sale (Exh. "1") contained a description of lot No. 1495 as having an area of 781 square meters and covered by transfer certificate of title No. 14570 issued in the name of Flaviano Moreto, married to Monica Maniega, although the lot was acquired during their marriage. As a result of the sale, the said certificate of title was cancelled and a new transfer certificate of title No. T-5671 was issued in the name of Geminiano Pamplona married to Apolonia Onte (Exh. "A"). After the execution of the above-mentioned deed of sale (Exh. "1"), the spouses Geminiano Pamplona and Apolonia Onte constructed their house on the eastern part of lot 1496 as Flaviano Moreto, at the time of the sale, pointed to it as the land which he sold to Geminiano Pamplona. Shortly thereafter, Rafael Pamplona, son of the spouses Geminiano Pamplona and Apolonia Onte, also built his house within lot 1496 about one meter from its boundary with the adjoining lot. The vendor Flaviano Moreto and the vendee Geminiano Pamplona thought all the time that the portion of 781 square meters which was the subject matter of their sale transaction was No. 1495 and so lot No. 1495 appears to be the subject matter in the deed of sale (Exh. "1") although the fact is that the said portion sold thought of by the parties to be lot No. 1495 is a part of lot No. 1496.

From 1956 to 1960, the spouses Geminiano Pamplona and Apolonio Onte enlarged their house and they even constructed a piggery corral at the back of their said house about one and onehalf meters from the eastern boundary of lot 1496. On August 12, 1956, Flaviano Moreto died intestate. In 1961, the plaintiffs demanded on the defendants to vacate the premises where they had their house and piggery on the ground that Flaviano Moreto had no right to sell the lot which he sold to Geminiano Pamplona as the same belongs to the conjugal partnership of Flaviano and his deceased wife and the latter was already dead when the sale was executed without the consent of the plaintiffs who are the heirs of Monica. The spouses Geminiano Pamplona and Apolonia Onte refused to vacate the premises occupied by them and hence, this suit was instituted by the heirs of Monica Maniega seeking for the declaration of the nullity of the deed of sale of July 30, 1952 above-mentioned as regards onehalf of the property subject matter of said deed; to declare the plaintiffs as the rightful owners of the other half of said lot; to allow the plaintiffs to redeem the one-half portion thereof sold to the defendants. "After payment of the other half of the purchase price"; to order the defendants to vacate the portions occupied by them; to order the defendants to pay actual and moral damages and attorney's fees to the plaintiffs; to order the defendants to pay plaintiffs P120.00 a year from August 1958 until they have vacated the premises occupied by them for the use and occupancy of the same. The defendants claim that the sale made by Flaviano Moreto in their favor is valid as the lot sold is registered in the name of Flaviano Moreto and they are purchasers believing in good faith that the vendor was the sole owner of the lot sold. After a relocation of lots 1495, 1496 and 4545 made by agreement of the parties, it was found out that there was mutual error between Flaviano Moreto and the defendants in the execution of the deed of sale because while the said deed recited that the lot sold is lot No. 1495, the real intention of the parties is that it was a portion consisting of 781 square meters of lot No. 1496 which was the subject matter of their sale transaction. After trial, the lower court rendered judgment, the dispositive part thereof being as follows: WHEREFORE, judgment is hereby rendered for the plaintiffs declaring the deed of absolute sale dated July 30, 1952 pertaining to the eastern portion of Lot 1496 covering an area of 781 square meters null and void as regards the 390.5 square meters of which plaintiffs are hereby declared the rightful owners and entitled to its possession. The sale is ordered valid with respect to the eastern one-half (1/2) of 1781 square meters of Lot 1496 measuring 390.5 square meters of which defendants are declared lawful owners and entitled to its possession. After proper survey segregating the eastern onehalf portion with an area of 390.5 square meters of Lot 1496, the defendants shall be entitled to a certificate of title covering said portion and Transfer Certificate of Title No. 9843 of the office of the Register of Deeds of Laguna shall be cancelled accordingly and new titles issued to the plaintiffs and to the defendants covering their respective portions. Transfer Certificate of Title No. 5671 of the office of the Register of Deeds of Laguna covering Lot No. 1495 and registered in the name of Cornelio Pamplona, married to Apolonia Onte, is by virtue of this decision ordered cancelled. The defendants are ordered to surrender to the office of the Register of Deeds of Laguna the owner's duplicate of Transfer Certificate of Title No. 5671 within thirty (30) days after this decision shall

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have become final for cancellation in accordance with this decision. Let copy of this decision be furnished the Register of Deeds for the province of Laguna for his information and guidance. With costs against the defendants.
2

back of their house about one and one-half meters from the eastern boundary of Lot 1496. Both vendor and vendees believed all the time that the area of 781 sq. meters subject of the sale was Lot No. 1495 which according to its title (T.C.T. No. 14570) contains an area of 781 sq. meters so that the deed of sale between the parties Identified and described the land sold as Lot 1495. But actually, as verified later by a surveyor upon agreement of the parties during the proceedings of the case below, the area sold was within Lot 1496. Again, there is no dispute that the houses of the spouses Cornelio Pamplona and Apolonia Onte as well as that of their son Rafael Pamplona, including the concrete piggery coral adjacent thereto, stood on the land from 1952 up to the filing of the complaint by the private respondents on July 25, 1961, or a period of over nine (9) years. And during said period, the private respondents who are the heirs of Monica Maniega as well as of Flaviano Moreto who also died intestate on August 12, 1956, lived as neighbors to the petitioner-vendees, yet lifted no finger to question the occupation, possession and ownership of the land purchased by the Pamplonas, so that We are persuaded and convinced to rule that private respondents are in estoppel by laches to claim half of the property, in dispute as null and void. Estoppel by laches is a rule of equity which bars a claimant from presenting his claim when, by reason of abandonment and negligence, he allowed a long time to elapse without presenting the same. (International Banking Corporation vs. Yared, 59 Phil. 92) We have ruled that at the time of the sale in 1952, the conjugal partnership was already dissolved six years before and therefore, the estate became a co-ownership between Flaviano Moreto, the surviving husband, and the heirs of his deceased wife, Monica Maniega. Article 493 of the New Civil Code is applicable and it provides a follows: Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involve. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the coownership. We agree with the petitioner that there was a partial partition of the co-ownership when at the time of the sale Flaviano Moreto pointed out the area and location of the 781 sq. meters sold by him to the petitioners-vendees on which the latter built their house and also that whereon Rafael, the son of petitioners likewise erected his house and an adjacent coral for piggery. Petitioners point to the fact that spouses Flaviano Moreto and Monica Maniega owned three parcels of land denominated as Lot 1495 having an area of 781 sq. meters, Lot 1496 with an area of 1,021 sq. meters, and Lot 4545 with an area of 544 sq. meters. The three lots have a total area of 2,346 sq. meters. These three parcels of lots are contiguous with one another as each is bounded on one side by the other, thus: Lot 4545 is bounded on the northeast by Lot 1495 and on the southeast by Lot 1496. Lot 1495 is bounded on the west by Lot 4545. Lot 1496 is bounded on the west by Lot 4545. It is therefore, clear that the three lots constitute one big land. They are not separate properties located in different places but they abut each other. This is not disputed by private respondents. Hence, at the time of the sale, the coownership constituted or covered these three lots adjacent to each other. And since Flaviano Moreto was entitled to one-half proindiviso of the entire land area or 1,173 sq. meters as his share, he had a perfect legal and lawful right to dispose of 781 sq. meters of his share to the Pamplona spouses. Indeed, there was still a remainder of some 392 sq. meters belonging to him at the time of the sale. We reject respondent Court's ruling that the sale was valid as to one-half and invalid as to the other half for the very simple reason that Flaviano Moreto, the vendor, had the legal right to more than

The defendants-appellants, not being satisfied with said judgment, appealed to the Court of Appeals, which affirmed the judgment, hence they now come to this Court. The fundamental and crucial issue in the case at bar is whether under the facts and circumstances duly established by the evidence, petitioners are entitled to the full ownership of the property in litigation, or only one-half of the same. There is no question that when the petitioners purchased the property on July 30, 1952 from Flaviano Moreto for the price of P900.00, his wife Monica Maniega had already been dead six years before, Monica having died on May 6, 1946. Hence, the conjugal partnership of the spouses Flaviano Moreto and Monica Maniega had already been dissolved. (Article 175, (1) New Civil Code; Article 1417, Old Civil Code). The records show that the conjugal estate had not been inventoried, liquidated, settled and divided by the heirs thereto in accordance with law. The necessary proceedings for the liquidation of the conjugal partnership were not instituted by the heirs either in the testate or intestate proceedings of the deceased spouse pursuant to Act 3176 amending Section 685 of Act 190. Neither was there an extra-judicial partition between the surviving spouse and the heirs of the deceased spouse nor was an ordinary action for partition brought for the purpose. Accordingly, the estate became the property of a community between the surviving husband, Flaviano Moreto, and his children with the deceased Monica Maniega in the concept of a co-ownership. The community property of the marriage, at the dissolution of this bond by the death of one of the spouses, ceases to belong to the legal partnership and becomes the property of a community, by operation of law, between the surviving spouse and the heirs of the deceased spouse, or the exclusive property of the widower or the widow, it he or she be the heir of the deceased spouse. Every co-owner shall have full ownership of his part and in the fruits and benefits derived therefrom, and he therefore may alienate, assign or mortgage it, and even substitute another person in its enjoyment, unless personal rights are in question. (Marigsa vs. Macabuntoc, 17 Phil. 107) In Borja vs. Addision, 44 Phil. 895, 906, the Supreme Court said that "(t)here is no reason in law why the heirs of the deceased wife may not form a partnership with the surviving husband for the management and control of the community property of the marriage and conceivably such a partnership, or rather community of property, between the heirs and the surviving husband might be formed without a written agreement." In Prades vs. Tecson, 49 Phil. 230, the Supreme Court held that "(a)lthough, when the wife dies, the surviving husband, as administrator of the community property, has authority to sell the property with ut the concurrence of the children of the marriage, nevertheless this power can be waived in favor of the children, with the result of bringing about a conventional ownership in common between the father and children as to such property; and any one purchasing with knowledge of the changed status of the property will acquire only the undivided interest of those members of the family who join in the act of conveyance. It is also not disputed that immediately after the execution of the sale in 1952, the vendees constructed their house on the eastern part of Lot 1496 which the vendor pointed out to them as the area sold, and two weeks thereafter, Rafael who is a son of the vendees, also built his house within Lot 1496. Subsequently, a cemented piggery coral was constructed by the vendees at the

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781 sq. meters of the communal estate, a title which he could dispose, alienate in favor of the vendees-petitioners. The title may be pro-indiviso or inchoate but the moment the co-owner as vendor pointed out its location and even indicated the boundaries over which the fences were to be erectd without objection, protest or complaint by the other co-owners, on the contrary they acquiesced and tolerated such alienation, occupation and possession, We rule that a factual partition or termination of the co-ownership, although partial, was created, and barred not only the vendor, Flaviano Moreto, but also his heirs, the private respondents herein from asserting as against the vendeespetitioners any right or title in derogation of the deed of sale executed by said vendor Flaiano Moreto. Equity commands that the private respondents, the successors of both the deceased spouses, Flaviano Moreto and Monica Maniega be not allowed to impugn the sale executed by Flaviano Moreto who indisputably received the consideration of P900.00 and which he, including his children, benefitted from the same. Moreover, as the heirs of both Monica Maniega and Flaviano Moreto, private respondents are duty-bound to comply with the provisions of Articles 1458 and 1495, Civil Code, which is the obligation of the vendor of the property of delivering and transfering the ownership of the whole property sold, which is transmitted on his death to his heirs, the herein private respondents. The articles cited provide, thus: Art. 1458. By the contract of sale one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other part to pay therefore a price certain in money or its equivalent. A contract of sale may be absolute or conditionial. Art. 1495. The vendor is bound to transfer the ownership of and deliver, as well as warrant the thing which is the object of the sale. Under Article 776, New Civil Code, the inheritance which private respondents received from their deceased parents and/or predecessors-in-interest included all the property rights and obligations which were not extinguished by their parents' death. And under Art. 1311, paragraph 1, New Civil Code, the contract of sale executed by the deceased Flaviano Moreto took effect between the parties, their assigns and heirs, who are the private respondents herein. Accordingly, to the private respondents is transmitted the obligation to deliver in full ownership the whole area of 781 sq. meters to the petitioners (which was the original obligation of their predecessor Flaviano Moreto) and not only onehalf thereof. Private respondents must comply with said obligation. The records reveal that the area of 781 sq. meters sold to and occupied by petitioners for more than 9 years already as of the filing of the complaint in 1961 had been re-surveyed by private land surveyor Daniel Aranas. Petitioners are entitled to a segregation of the area from Transfer Certificate of Title No. T9843 covering Lot 1496 and they are also entitled to the issuance of a new Transfer Certificate of Title in their name based on the relocation survey. WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED with modification in the sense that the sale made and executed by Flaviano Moreto in favor of the petitioners-vendees is hereby declared legal and valid in its entirely. Petitioners are hereby declared owners in full ownership of the 781 sq. meters at the eastern portion of Lot 1496 now occupied by said petitioners and whereon their houses and piggery coral stand. The Register of Deeds of Laguna is hereby ordered to segregate the area of 781 sq. meters from Certificate of Title No. 9843 and to issue a new Transfer Certificate of Title to the petitioners covering the segregated area of 781 sq. meters.

No costs. SO ORDERED. G.R. No. 125835 July 30, 1998 NATALIA CARPENA OPULENCIA, petitioner, vs. COURT OF APPEALS, ALADIN SIMUNDAC and MIGUEL OLIVAN, respondents.

PANGANIBAN, J.: Is a contract to sell a real property involved in restate proceedings valid and binding without the approval of the probate court? Statement of the Case This is the main question raised in this petition for review before 1 2 us, assailing the Decision of the Court of Appeals in CA-GR CV 3 No. 41994 promulgated on February 6, 1996 and its Resolution dated July 19, 1996. The challenged Decision disposed as follows: WHEREFORE, premises considered, the order of the lower court dismissing the complaint is SET ASIDE and judgment is hereby rendered declaring the CONTRACT TO SELL executed by appellee in favor of appellants as valid and binding, subject to the result of the administration proceedings of the testate Estate of Demetrio Carpena. SO ORDERED.
4

Petitioner's Motion for Reconsideration was denied in the 5 challenged Resolution. The Facts The antecedent facts, as succinctly narrated by Respondent Court of Appeals, are: In a complaint for specific performance filed with the court a quo [herein private respondents] Aladin Simundac and Miguel Oliven alleged that [herein petitioner] Natalia Carpena Opulencia executed in their favor a "CONTRACT TO SELL" Lot 2125 of the Sta. Rosa Estate, consisting of 23,766 square meters located in Sta. Rosa, Laguna at P150.00 per square meter; that plaintiffs paid a downpayment of P300,000.00 but defendant, despite demands, failed to comply with her obligations under the contract. [Private respondents] therefore prayed that [petitioner] be ordered to perform her contractual obligations and to further pay damages, attorney's fee and litigation expenses. In her traverse, [petitioner] admitted the execution of the contract in favor of plaintiffs and receipt of P300,000.00 as downpayment. However, she put forward the following affirmative defenses: that the property subject of the contract formed part of the Estate of Demetrio Carpena (petitioner's father), in respect of which a petition for probate was filed with the Regional Trial Court, Branch 24, Bian, Laguna; that at the time the contract was executed, the parties were aware of the pendency of the probate proceeding; that the

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contract to sell was not approved by the probate court; that realizing the nullity of the contract [petitioner] had offered to return the downpayment received from [private respondents], but the latter refused to accept it; that [private respondents] further failed to provide funds for the tenant who demanded P150,00.00 in payment of his tenancy rights on the land; that [petitioner] had chosen to rescind the contract. At the pre-trial conference the parties stipulated on [sic] the following facts: 1. That on February 3, 1989, [private respondents] and [petitioner] entered into a contract to sell involving a parcel of land situated in Sta. Rosa, Laguna, otherwise known as Lot No. 2125 of the Sta. Rosa Estate. 2. That the price or consideration of the said sell [sic] is P150.00 per square meters; 3. That the amount of P300,000.00 had already been received by [petitioner]; 4. That the parties have knowledge that the property subject of the contract to sell is subject of the probate proceedings; 5. That [as] of this time, the probate Court has not yet issued an order either approving or denying the said sale. (p. 3, appealed Order of September 15, 1992, pp. 109112, record).

Court with notice to the heirs of the time and place of hearing, to show that the sale is necessary and beneficial. A sale of properties of an estate as beneficial to the interested parties must comply with the requisites provided by law, (Sec. 7, Rule 89, Rules of Court) which are mandatory, and without them, the authority to sell, the sale itself, and the order approving it, would be null and void ab initio. (Arcilla vs. David, 77 Phil. 718, Gabriel, et al., vs. Encarnacion, et al., L-6736, May 4, 1954; Bonaga vs. Soler, 2 Phil. 755) Besides, it is axiomatic that where the estate of a deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the probate Court. (Estate of Obave, vs. Reyes, 123 SCRA 767). As held by the Supreme Court, a decedent's representative (administrator) is not estopped from questioning the validity of his own void deed purporting to convey land. (Bona vs. Soler, 2 Phil, 755). In the case at bar, the [petitioner,] realizing the illegality of the transaction[,] has interposed the nullity of the contract as her defense, there being no approval from the probate Court, and, in good faith offers to return the money she received from the [private respondents]. Certainly, the administratrix is not estop[ped] from doing so and the action to declare the inexistence of contracts do not prescribe. This is what precipitated the filing of 6 [petitioner's] demurrer to evidence. The trial court's order of dismissal was elevated to the Court of Appeals by private respondents who alleged: 1. The lower court erred in concluding that the contract to sell is null and void, there being no approval of the probate court. 2. The lower court erred in concluding that [petitioner] in good faith offers to return the money to [private respondents].

3. The lower court erred in concluding that [Private respondents] submitted their evidence [petitioner] is not under estoppel to question the in support of the material allegations of the validity of the contract to sell. complaint. In addition to testimonies of witnesses, [private respondents] presented the 4. The lower court erred in not ruling on the following documentary evidences: (1) Contract consideration of the contract to sell which is to Sell (Exh A); (2) machine copy of the last will tantamount to plain unjust enrichment of and testament of Demetrio Carpena [petitioner] at the expense of [private (defendant's father) to show that the property 7 respondents]. sold by defendant was one of those devised to her in said will (Exh B); (3) receipts signed by Public Respondent's Ruling defendant for the downpayment in the total amount of P300,000.00 (Exhs C, D & E); and (4) demand letters sent to defendant (Exhs F & G). Declaring the Contract to Sell valid, subject to the outcome of the testate proceedings on Demetrio Carpena's estate, the appellate It appears that [petitioner], instead of submitting court set aside the trial court's dismissal of the complaint and correctly ruled as follows: her evidence, filed a Demurrer to Evidence. In essence, defendant maintained that the contract to sell was null and void for want of approval by It is apparent from the appealed order that the the probate court. She further argued that the lower court treated the contract to sell executed contract was subject to a suspensive condition, by appellee as one made by the administratrix of which was the probate of the will of defendant's the Estate of Demetrio Carpena for the benefit of father Demetrio Carpena. An Opposition was the estate. Hence, its main reason for voiding filed by [private respondents]. It appears further the contract in question was the absence of the that in an Order dated December 15, 1992 the probate court's approval. Presumably, what the court a quo granted the demurrer to evidence lower court had in mind was the sale of the and dismissed the complaint. It justified its estate or part thereof made by the administrator action in dismissing the complaint in the for the benefit of the estate, as authorized under following manner: Rule 89 of the Revised Rules of Court, which It is noteworthy that when the contract to sell was consummated, no petition was filed in the requires the approval of the probate court upon application therefor with notice to the heirs, devisees and legatees.

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However, as adverted to by appellants in their brief, the contract to sell in question is not covered by Rule 89 of the Revised Rules of Court since it was made by appellee in her capacity as an heir, of a property that was devised to her under the will sought to be probated. Thus, while the document inadvertently stated that appellee executed the contract in her capacity as "executrix and administratrix" of the estate, a cursory reading of the entire text of the contract would unerringly show that what she undertook to sell to appellants was one of the "other properties given to her by her late father," and more importantly, it was not made for the benefit of the estate but for her own needs. To illustrate this point, it is apropos to refer to the preambular or preliminary portion of the document, which reads: WHEREAS, the SELLER is the lawful owner of a certain parcel of land, which is more particularly described as follows: xxx xxx xxx xxx xxx xxx xxx xxx xxx WHEREAS, the SELLER suffers difficulties in her living and has forced to offer the sale of the above-described property, "which property was only one among the other properties given to her by her late father," to anyone who can wait for complete clearance of the court on the Last Will Testament of her father. WHEREAS, the SELLER in order to meet her need of cash, has offered for sale the said property at ONE HUNDRED FIFTY PESOS (150.00) Philippine Currency, per square meter unto the BUYERS, and with this offer, the latter has accepted to buy and/or purchase the same, less the area for the road and other easements indicated at the back of Transfer Certificate of Title No. 2125 duly confirmed after the survey to be conducted by the BUYER's Licensed Geodetic Engineer, and whatever area [is] left. (Emphasis added). To emphasize, it is evident from the foregoing clauses of the contract that appellee sold Lot 2125 not in her capacity as executrix of the will or administratrix of the estate of her father, but as an heir and more importantly as owner of said lot which, along with other properties, was devised to her under the will sought to be probated. That being so, the requisites stipulated in Rule 89 of the Revised Rules of Court which refer to a sale made by the administrator for the benefit of the estate do not apply.

xxx xxx xxx It is noteworthy that in a Manifestation filed with this court by appellants, which is not controverted by appellee, it is mentioned that the last will and testament of Demetrio Carpena was approved in a final judgment rendered in Special Proceeding No. B-979 by the Regional Trial Court, Branch 24 Bian, Laguna. But of course such approval does not terminate the proceeding[s] since the settlement of the estate will ensue. Such proceedings will consist, among others, in the issuance by the court of a notice to creditors (Rule 86), hearing of money claims and payment of taxes and estate debts (Rule 88) and distribution of the residue to the heirs or persons entitled thereto (Rule 90). In effect, the final execution of the deed of sale itself upon appellants' payment of the balance of the purchase price will have to wait for the settlement or termination of the administration proceedings of the Estate of Demetrio Carpena. Under the foregoing premises, what the trial court should have done with the complaint was not to dismiss it but to simply put on hold further proceedings until such time that the estate or its residue will be distributed in accordance with the approved will. The rule is that when a demurrer to the evidence is granted by the trial court but reversed on appeal, defendant loses the right to adduce his evidence. In such a case, the appellate court will decide the controversy on the basis of plaintiff's evidence. In the case at bench, while we find the contract to sell valid and binding between the parties, we cannot as yet order appellee to perform her obligations under the contract because the result of the administration proceedings of the testate Estate of Demetrio Carpena has to be awaited. Hence, we shall confine our adjudication to merely declaring the validity of the questioned Contract to Sell. Hence, this appeal.
8

The Issue Petitioner raises only one issue: Whether or not the Contract to Sell dated 03 February 1989 executed by the [p]etitioner and [p]rivate [r]espondent[s] without the requisite probate court approval is valid. The Court's Ruling The petition has no merit. Contract to Sell Valid In a nutshell, petitioner contends that "where the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction 9 involving it without prior approval of the Probate Court." She maintains that the Contract to Sell is void because it was not approved by the probate court, as required by Section 7, Rule 89 of the Rules of Court: Sec. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estate. The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell, mortgage, or otherwise encumber real estate, in cases provided by these rules and when it appears necessary or beneficial, under the following regulations:

26

perfected between the petitioner and private respondents during the pendency of the probate proceedings, the consummation of the sale or the transfer of ownership over the parcel of land to the Insisting that the above rule should apply to this case, petitioner private respondents is subject to the full payment of the purchase argues that the stipulations in the Contract to Sell require her to act in her capacity as an executrix or administratrix. She avers that price and to the termination and outcome of the testate proceedings. Therefore, there is no basis for petitioner's her obligation to eject tenants pertains to the administratrix or 10 apprehension that the Contract to Sell may result in a premature executrix, the estate being the landlord of the said tenants. partition and distribution of the properties of the estate. Indeed, it is Likewise demonstrating that she entered into the contract in her settled that "the sale made by an heir of his share in an capacity as executor is the stipulation that she must effect the inheritance, subject to the pending administration, in no wise conversion of subject land from irrigated rice land to residential 20 stands in the way of such administration." land and secure the necessary clearances from government offices. Petitioner alleges that these obligations can be undertaken Estoppel only by an executor or administrator of an estate, and not by an 11 heir. The Court is not persuaded. As correctly ruled by the Court of Appeals, Section 7 of Rule 89 of the Rules of Court is not applicable, because petitioner entered into the Contract to Sell in her capacity as an heiress, not as an executrix or administratrix of the estate. In the contract, she represented herself as the "lawful 12 owner" and seller of the subject parcel of land. She also explained the reason for the sale to be "difficulties in her living" 13 conditions and consequent "need of cash." These representations clearly evince that she was not acting on behalf of the estate under probate when she entered into the Contract to Sell. Accordingly, the jurisprudence cited by petitioners has no application to the instant case. We emphasize that hereditary rights are vested in the heir or heirs 14 from the moment of the decedent's death. Petitioner, therefore, became the owner of her hereditary share the moment her father died. Thus, the lack of judicial approval does not invalidate the Contract to Sell, because the petitioner has the substantive right to sell the whole or a part of her share in the estate of her late father. 15 16 Thus, in Jakosalem vs. Rafols, the Court resolved an identical issue under the old Civil Code and held: Art. 440 of the Civil Code provides that "the possession of hereditary property is deemed to be transmitted to the heir without interruption from the instant of the death of the decedent, in case the inheritance be accepted." And Manresa with reason states that upon the death of a person, each of his heirs "becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community of ownership being thus formed among the coowners of the estate while it remains undivided." . . . And according to article 399 of the Civil Code, every part owner may assign or mortgage his part in the common property, and the effect of such assignment or mortgage shall be limited to the portion which may be allotted him in the partition upon the dissolution of the community. Hence, where some of the heirs, without the concurrence of the others, sold a property left by their deceased father, this Court, speaking thru its then Chief Justice Cayetano Arellano, said that the sale was valid, but that the effect thereof was limited to the share which may be allotted to the vendors upon the partition of the estate. Administration of the Estate Not Prejudiced by the Contract to Sell Petitioner further contends that "[t]o sanction the sale at this stage would bring about a partial distribution of the decedent's estate 17 pending the final termination of the testate proceedings." This becomes all the more significant in the light of the trial court's finding, as stated in its Order dated August 20, 1997, that "the 18 legitimate of one of the heirs has been impaired." Petitioner's contention is not convincing. The Contract to Sell stipulates that petitioner's offer to sell is contingent on the "complete clearance of the court on the Last Will Testament of her 19 father." Consequently, although the Contract to Sell was Finally, petitioner is estopped from backing out of her representations in her valid Contract to Sell with private respondents, from whom she had already received P300,000 as initial payment of the purchase price. Petitioner may not renege on her own acts and representations, to the prejudice of the private 21 respondents who have relied on them. Jurisprudence teaches us that neither the law nor the courts will extricate a party from an unwise or undesirable contract he or she entered into with all the 22 required formalities and with full awareness of its consequences. WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. L-47305 July 31, 1942

xxx xxx xxx

In the matter of the estate of Rufina Arevalo. ARISTON BUSTAMANTE, administrator-appellant, vs. PETRONA AREVALO, ET AL., oppositors-appellees. Nicasio Yatco for appellant. Ventura and Belmonte for appellees. BOCOBO, J.: The main issue in this case is whether or not Exhibit C, presented by appellant for allowance as the last will and testament of the deceased Rufina Arevalo, is a forgery. The Court of First Instance of Manila held that it was a forged document, and allowed an earlier will, Exhibit 6, whose authenticity was unquestioned. The value of the estate is over P50,000. The questioned document was prepared and signed in duplicate. It consists of two pages and is dated October 2, 1937. It appears to be signed by Rufina Arevalo and by three witnesses, Manuel M. Cruz, Remigo Colina and Angel Sanchez. The formal requisites of a will have been complied with. An initial fact that arrests the attention is the formulation by the appellees of the allegation of forgery even before seeing the questioned document. Said charge of forgery was signed on April 22, 1938, although Exhibit C, which had been in a sealed envelop, was not opened by order of the court till the next day, April 23, 1938. It is true that the opposition by the appellees was not actually filed in court till April 23, but it was signed by appellees' attorneys on April 22, was subscribed and sworn to by Amando Clemente on April 22, and a copy thereof was sent by registered mail to Attorney Nicasio Yatco on April 22. Moreover, in the morning of April 23, appellees attorneys Messrs. Jose Belmonte and Vicente Delgado, announced their opposition to the will Exhibit C in open court, before said documents was opened by order of the court on that day. One of the principal reasons of the court a quo for believing Exhibit C to be a forgery is that in the genuine signatures the terminal stroke of the capital "R" in "Rufina" is not joined with the letter "u," while in Exhibit C such ending is united with the letter "u" in the two marginal signatures, although in the central signature appearing on page 2, the two letters are separated. The probate

27

court believes that this difference between the marginal and the central signatures is due to the fact that the forger first used the check of "La Previsora" (Exhibit I) as the model in falsifying the marginal signatures, but having been shown another signature with the characteristic already mentioned separation of the two letters he tried to imitate said peculiarity in making central signature. We believe the probate court over looked the well-established principle that in passing upon questioned documents, the test is the general character of the writing rather than any minute and precise comparison of individual letters or lines. In People vs. Bustos (45 Phil., 30) , this Court held: It is a first principle in writing that exact coincidence between two signatures is absolute proof that one or the other is a forgery. There must be some different before authenticity reposes upon a general characteristics resemblance, coupled with specific differences, such as naturally result from the infinite variety of conditions controlling the muscles of the writer at each separate effort in forming his signature. (Emphasis supplied.)

model in falsifying the marginal signatures, it is highly improbable that said check was in the hands of Rufina Arevalo or of her attorney, Nicasio Yatco, on or about October 2, 1937, when the document in question was signed. The check had been issued on June 30, 1936, or over a year before, and it must have been returned by the bank concerned to "La Previsora" in the ordinary course of business, because it was produced by the Manager of "La Previsora." It should likewise be observed that the signature on the first page of the duplicate will (Exhibit C-3) does not have the supposed peculiarity of the standard signatures, that is the separation between "R" and "u." If, as the lower court states, the forger upon being shown a model other than Exhibit I, imitated said characteristic separation in making the central or body signature on the original will Exhibit C, it is indeed strange that he should not do the same immediately thereafter on the first page of the duplicate will but that he should, instead, repeat the mistake he had made on the marginal signatures on the original will.

Finally, to conclude that a forgery has been committed, the evidence should be forcefully persuasive. Before we are disposed to find that an attorney-at-law has so debased himself as to aid and abet the forgery of a will, which would not only send him to jail for many years but would ruin his future, we must require proof sufficiently strong to prevail against every fair and thoughtful hesitancy and doubt. And the instrumental witnesses have testified that Rufina Arevalo signed the will in their presence. It is hard to In the present case, a careful scrutiny of all the questioned and the believe they would commit perjury as it has not been shown they standard signatures has convinced us that they have been written had any interest in this case. by the same person because they show the same general type, quality and characteristics, with natural variations. We are, therefore, inclined to give credence to the expert testimony to that Therefore, we find that the will of Rufina Arevalo, dated October 2, 1937 and marked Exhibit C, is genuine and should be allowed. effect presented by the appellant. Moreover, a forger who has to make two or more signatures usually sees to it that all the signatures are uniform for fear that any difference might arouse suspicion. In this case, however, in some questioned signatures the letters "R" and "u" are separated, but in others, they are united. Osborne in "Questioned Documents" (pp. 368, 369) says: Another indication of genuineness in a holographic document or a considerable amount of writing, or in two or more disputed signatures, are certain natural variations in the details of the writing. It is difficult for the inexperienced or unthinking examiner to understand that a certain extent of variation in a group of several signatures and variation in repeated words and letters in a continuous holographic document can be evidence of genuineness. The forger does not understand this necessity for natural variation and, as nearly as he can, makes words and letters just alike. xxx xxx xxx It is unnecessary to discuss the incidental issues of fact so ably presented by counsel and examined in detail by the probate court, inasmuch as the foregoing disposes of the basic question raised. The relative position of the contending devisees in the affection of the deceased; whether Rufina Arevalo could go alone to the law office of Attorney Yatco on October 2, 1937 to sign the will Exhibit C; the alleged resentment of the testatrix toward Amando Clemente when she signed the second will, and similar questions are not of sufficient significance to alter the conclusion herein arrived at. In fact, they merely tend to becloud the main issue. The next question to be inquired into is whether or not the later will (Exhibit C) dated October 2, 1937, whose probate is herein approved, has entirely revoked the earlier will, Exhibit 6, dated January 9, 1936. Though both partes admit that the first will has been revoked by the second, yet we deem it necessary to discuss the question because a member of this Court thinks the earlier will can stand in part. It appears that the undivided interest of Rufina Arevalo in two parcels of land and the improvements thereon which belonged to the conjugal partnership between Bernabe Bustamante, who had died before the making of the two wills, and Rufina Arevalo, was expressly devised to Amando Clemente in the earlier will but was not specifically mentioned in the later will. In the first will, Exhibit 6, Rufina Arevalo, who had no forcible heirs, gave to Ariston Bustamante, her nephew, three lots and the buildings thereon; devised a parcel of land and the houses standing thereon to her cousin, Petrona Arevalo Viuda de Zacarias, and to her niece, Carmen Papa de Delgado; and finally disposed, in favor of Amando Clemente, another cousin, of a piece of land and the houses thereon, and of her undivided interest in the two parcels of land and the improvements thereon, which belonged to the conjugal partnership, also making said Amando Clemente the residuary legatee. But in the second will, Exhibit C, she designates Ariston Bustamante her only heir in these terms: Segundo Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades dejadas ya mueble o inmueble que se describen mas abajo: (a) Original Certificate of Title of Manila No. 5059 (b) Original Certificate of Title of Manila No. 4681

It necessarily follows, therefore, that if the several lines of a disputed document, or several signatures under investigation, show these natural variations of writing of the same word or letter, all of course within the scope of variation of the genuine writing, this variation itself, surprising and paradoxical as it may appear, is as strong evidence of genuineness as the opposite condition is evidence of forgery. (Emphasis supplied.) Furthermore, it is to be noted that the document in question was prepared and signed in duplicate, so that there are six signatures of Rufina Arevalo, instead of only three. It is reasonable to believe that a forger would reduce the number of signatures to be forged so as to lessen the danger of detection. In this case, Attorney Nicasio Yatco, who supervised the execution of Exhibit C, must have known that it was not necessary to make a signed duplicate of the will. As for the probate court's opinion that the forger must have used Exhibit I (a check issued by "La Previsora" to Rufina Arevalo) as a

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(c) Transfer Certificate of Title of Manila No. 19961 (d) Original Certificate of Title of Manila No. 5066 (e) Original Certificate of Title of Manila No. 4682. Her undivided interest in the two pieces of land of the conjugal partnership, with Torrens titles No. 4887 and No. 15628, devised to Amando Clemente in the earlier will, is not specifically mentioned in the later will, Exhibit C. Moreover, the second will has no revocation clause. At first sight, it would seem that the earlier will can stand with respect to Rufina Arevalo's share in said two parcels of land belonging to the conjugal partnership. But a closer examination of the later will counter-acts such initial reaction. In the first place, the testatrix in the second will names Ariston Bustamante her only heir to all her property, both personal and real, her words in Spanish being: "Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades dejadas ya mueble o inmueble." (Italics supplied.) It is true that in enumerating her parcels of land, she did not specify her interest in the two lots of the conjugal partnership. But this omission must have been due either to an oversight or to the belief that it was premature to name said two parcels as the conjugal partnership was still being liquidated. In either case, the testatrix must have thought that her comprehensive words "mi unico heredero de todas mis propiedades dejadas ya mueble o inmueble" would be sufficient to cover all her property, whether specially listed or not. Secondly, in the opening paragraph of the second will, the following words appear: "hago constar a todos este mi ultimo testamento y voluntad expresado en Castellano lenguaje que conozco y poseo, y queriendo disponer de mis bienes por virtud de este mi testamento." (Emphasis supplied.) Though she knew that she had made a first will, she nevertheless said that the second will was her last one. This would seem to signify that her last will, cancelling her previously expressed wish, was to make Ariston Bustamante her only heir. Furthermore, when she said she wanted to dispose of her property by means of the second will ("queriendo disponer de mis bienes por virtud de este mi testamento"), it would appear to be her intention that no property of hers should be left undisposed of in the second will. This fact is corroborated in the second clause wherein she names Ariston Bustamante as her only heir to all her property whether personal or real.

In view of the foregoing, the decision appealed from, declaring the second will Exhibit C a forgery and allowing the first will Exhibit 6, should be and is hereby reversed, and another judgment shall be entered allowing the later will Exhibit C, which has entirely revoked the earlier will Exhibit 6. No special pronouncement on costs is made. Let the record of this case be returned to the court of origin for further proceedings. So ordered. Yulo, C.J. and Moran, J., concur.

Separate Opinions OZAETA, J., concurring: I concur in the finding that the will Exhibit C is genuine. I think, however, that the discussion in the majority opinion of whether or not said Exhibit C entirely revoked the previous will Exhibit 6 is unnecessary, inasmuch as both parties in their brief have admitted the affirmative. There being no controversy between the parties on that score, there seems to be no occasion for the Court to render an opinion thereon.

PARAS, J., concurring and dissenting: The testatrix in this case executed two wills, one on January 9, 1936, and the other on October 2, 1937. In the first will, the testatrix specifically referred to seven parcels of land of considerable value and to certain personal properties. Three of these parcels of land and all the personal properties are given to Amando Clemente, another three to Ariston Bustamante, and the seventh parcel to Petrona Arevalo and Carmen Papa. In the second will, the testatrix particularly referred to only five parcels of land and certain personal properties, all of which are give to Ariston Bustamante, as her universal heir. The second will does not make mention of two of the three parcels given to Amando Clemente under the first will. The question that arises is whether the second will has the effect of revoking the first. In my opinion, where, as in the present case, the two wills can be reconciled, the first should be considered revoked only in so far as it is inconsistent with the second. As the second will was executed only twenty-one months after the first, the testatrix, who has been conclusively shown to be of sound mind at the time of the execution of the later will, could not have forgotten that she owned two other parcels of land, especially if they are of considerable value. Even the lawyer who drafted the second will was aware that the testatrix owned the said two parcels, because they were included in the inventory made of her properties in connection with the administration proceedings of the estate of her deceased husband. This omission could have been made only on purpose, and, coupled with the circumstance that the section will does not expressly revoke the first which has not been burned, torn, cancelled or obliterated, inevitably leads to the inference that the testatrix in face intended to make the first will effective as to the two parcels of land above referred to.

We believe, therefore, that the first will has been entirely revoked. Though it might appear right that Amando Clemente should receive something from the estate because he, together with Ariston Bustamante, has been raised by the testatrix, and both are her relatives, nevertheless it would be venturesome for us to advance our own idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the testatrix in the later will. As she had no forcible heirs, she was absolutely free to give her estate to whomsoever she choose, subject of course to the payment of her debts. It would be a dangerous precedent to strain the interpretation of a will in order to Section 623 of the Code of Civil Procedure provides: effect what the court believes to be an equitable division of the estate of a deceased person. The only function of the courts in No will shall be revoked, except by implication of these cases is to carry out the intention of the deceased as law, otherwise than by some will, codicil, or manifested in the will. Once that intention has been determined other writing executed as provided in case of through a careful reading of the will or wills, and provided the law wills; or by burning, tearing, cancelling, or on legitimes has not been violated, it is beyond the pale of judicial obliterating the same with the intention of cognizance to inquire into the fairness or unfairness of any devise revoking it, by the testator himself, or by some or bequest. It might be said that it is hard to understand how, in a other person in his presence, and by his express temporary anger at Amando Clemente, the testatrix would entirely direction. cut him off from the inheritance. We should not, however, sit in judgment upon her motives and sentiments, first because, as xxx xxx xxx already stated, nothing in the law restrained her from disposing of her property in any manner she desired, and secondly, because there are no adequate means of ascertaining the inward If partially conflicting, that of the latter date will processes of her conscience. She was the sole judge of her own operate to revoke the former so far as the attitude toward those who expected her bounty. provisions of the two are conflicting or

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incompatible, and in such case both wills are entitled to probate. (68 Corpus Juris 805.) Where there is no revocation in a later will of all former wills, two separate and distinct wills may be probated, especially when the probating of one only of the instruments would leave an intestacy as to part of the estate. This rule applies even though the later instrument states that it is the last will and testament of the testator, as the use of such words in a later instrument does not of itself revoke a prior will. (Id. p. 885.) I therefore vote for the probate of both wills. G.R. No. 147145 January 31, 2005

In an Order dated 14 August 1981, the RTC-Kabankalan admitted to probate the will of Toray. Since the oppositors did not file any motion for reconsideration, the order allowing the probate of 8 Torays will became final and executory. In an order dated 23 November 1990, the RTC-Kabankalan designated Belinda Caponong-Noble ("Caponong-Noble") Special 9 Administratrix of the estate of Abada and Toray. Caponong-Noble moved for the dismissal of the petition for probate of the will of Abada. The RTC-Kabankalan denied the motion in an Order dated 10 20 August 1991. Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S. Layumas discovered that in an Order dated 16 March 1992, former Presiding Judge Edgardo Catilo had already submitted the case for decision. Thus, the RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows: There having been sufficient notice to the heirs as required by law; that there is substantial compliance with the formalities of a Will as the law directs and that the petitioner through his testimony and the deposition of Felix Gallinero was able to establish the regularity of the execution of the said Will and further, there being no evidence of bad faith and fraud, or substitution of the said Will, the Last Will and Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate. As prayed for by counsel, Noel Abbellar is appointed administrator of the estate of Paula Toray who shall discharge his duties as such after letters of administration shall have been issued in his favor and after taking his oath and filing a bond in the amount of Ten Thousand (P10,000.00) Pesos.
11

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA CAPONONG-NOBLE, petitioner, vs. ALIPIO ABAJA and NOEL ABELLAR, respondents. DECISION CARPIO, J.: The Case
1 2

Before the Court is a petition for review assailing the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 3 47644. The Court of Appeals sustained the Resolution of the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61 Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall continue discharging her duties as such until ("RTC-Kabankalan"), admitting to probate the last will and further orders from this Court. testament of Alipio Abada ("Abada"). The Antecedent Facts Abada died sometime in May 1940. His widow Paula Toray ("Toray") died sometime in September 1943. Both died without legitimate children. On 13 September 1968, Alipio C. Abaja ("Alipio") filed with the then Court of First Instance of Negros Occidental (now RTC5 Kabankalan) a petition, docketed as SP No. 070 (313-8668), for the probate of the last will and testament ("will") of Abada. Abada allegedly named as his testamentary heirs his natural children Eulogio Abaja ("Eulogio") and Rosario Cordova. Alipio is the son of Eulogio. Nicanor Caponong ("Caponong") opposed the petition on the ground that Abada left no will when he died in 1940. Caponong further alleged that the will, if Abada really executed it, should be disallowed for the following reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last will of the testator; and (3) it was procured by undue and improper pressure and influence on the part of the beneficiaries. Citing the same grounds invoked by Caponong, the alleged intestate heirs of Abada, namely, Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and Elena Abada ("Joel Abada, et al."), and Levi, Leandro, Antonio, Florian, Hernani and Carmela Tronco ("Levi Tronco, et al."), also opposed the petition. The oppositors are the nephews, nieces and grandchildren of Abada and Toray. On 13 September 1968, Alipio filed another petition before the RTC-Kabankalan, docketed as SP No. 071 (312-8669), for the probate of the last will and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et al. opposed the petition on the same grounds they cited in SP No. 070 (313-8668). On 20 September 1968, Caponong filed a petition before the RTC-Kabankalan, docketed as SP No. 069 (309), praying for the issuance in his name of letters of administration of the intestate estate of Abada and Toray.
7 6 4

SO ORDERED.

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The RTC-Kabankalan ruled on the only issue raised by the oppositors in their motions to dismiss the petition for probate, that is, whether the will of Abada has an attestation clause as required by law. The RTC-Kabankalan further held that the failure of the oppositors to raise any other matter forecloses all other issues. Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal. In a Decision promulgated on 12 January 2001, the Court of Appeals affirmed the Resolution of the RTC-Kabankalan. The appellate court found that the RTC-Kabankalan properly admitted to probate the will of Abada. Hence, the present recourse by Caponong-Noble. The Issues The petition raises the following issues: 1. What laws apply to the probate of the last will of Abada; 2. Whether the will of Abada requires acknowledgment 13 before a notary public; 3. Whether the will must expressly state that it is written in a language or dialect known to the testator; 4. Whether the will of Abada has an attestation clause, and if so, whether the attestation clause complies with the requirements of the applicable laws;

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5. Whether Caponong-Noble is precluded from raising the Caponong-Noble asserts that the will of Abada does not indicate issue of whether the will of Abada is written in a language that it is written in a language or dialect known to the testator. known to Abada; Further, she maintains that the will is not acknowledged before a notary public. She cites in particular Articles 804 and 805 of the Old Civil Code, thus: 6. Whether evidence aliunde may be resorted to in the probate of the will of Abada. The Ruling of the Court The Court of Appeals did not err in sustaining the RTCKabankalan in admitting to probate the will of Abada. The Applicable Law Art. 804. Every will must be in writing and executed in [a] language or dialect known to the testator. Art. 806. Every will must be acknowledged before a notary public 18 by the testator and the witnesses. xxx Caponong-Noble actually cited Articles 804 and 806 of the New 19 Civil Code. Article 804 of the Old Civil Code is about the rights and obligations of administrators of the property of an absentee, while Article 806 of the Old Civil Code defines a legitime.

Abada executed his will on 4 June 1932. The laws in force at that time are the Civil Code of 1889 or the Old Civil Code, and Act No. 14 190 or the Code of Civil Procedure which governed the execution Articles 804 and 806 of the New Civil Code are new provisions. of wills before the enactment of the New Civil Code. Article 804 of the New Civil Code is taken from Section 618 of the 20 Code of Civil Procedure. Article 806 of the New Civil Code is The matter in dispute in the present case is the attestation clause taken from Article 685 of the Old Civil Code21 which provides: in the will of Abada. Section 618 of the Code of Civil Procedure, as 15 amended by Act No. 2645, governs the form of the attestation 16 Art. 685. The notary and two of the witnesses who authenticate the clause of Abadas will. Section 618 of the Code of Civil will must be acquainted with the testator, or, should they not know Procedure, as amended, provides: him, he shall be identified by two witnesses who are acquainted with him and are known to the notary and to the attesting SEC. 618. Requisites of will. No will, except as provided in the witnesses. The notary and the witnesses shall also endeavor to 17 preceding section, shall be valid to pass any estate, real or assure themselves that the testator has, in their judgment, the personal, nor charge or affect the same, unless it be written in the legal capacity required to make a will. language or dialect known by the testator and signed by him, or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three Witnesses authenticating a will without the attendance of a notary, in cases falling under Articles 700 and 701, are also required to or more credible witnesses in the presence of the testator and of know the testator. each other. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also 22 sign, as aforesaid, each and every page thereof, on the left However, the Code of Civil Procedure repealed Article 685 of the margin, and said pages shall be numbered correlatively in letters Old Civil Code. Under the Code of Civil Procedure, the intervention 23 placed on the upper part of each sheet. The attestation shall state of a notary is not necessary in the execution of any will. the number of sheets or pages used, upon which the will is written, Therefore, Abadas will does not require acknowledgment before a notary public.1awphi1.nt 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 three witnesses, and the Caponong-Noble points out that nowhere in the will can one latter witnessed and signed the will and all pages thereof in the discern that Abada knew the Spanish language. She alleges that presence of the testator and of each other. such defect is fatal and must result in the disallowance of the will. On this issue, the Court of Appeals held that the matter was not raised in the motion to dismiss, and that it is now too late to raise the issue on appeal. We agree with Caponong-Noble that the 24 Under Section 618 of the Code of Civil Procedure, the requisites of doctrine of estoppel does not apply in probate proceedings. In addition, the language used in the will is part of the requisites a will are the following: under Section 618 of the Code of Civil Procedure and the Court deems it proper to pass upon this issue. (1) The will must be written in the language or dialect known by the testator; Nevertheless, Caponong-Nobles contention must still fail. There is no statutory requirement to state in the will itself that the testator 25 (2) The will must be signed by the testator, or by the knew the language or dialect used in the will. This is a matter 26 testators name written by some other person in his that a party may establish by proof aliunde. Caponong-Noble presence, and by his express direction; further argues that Alipio, in his testimony, has failed, among others, to show that Abada knew or understood the contents of the will and the Spanish language used in the will. However, Alipio (3) The will must be attested and subscribed by three or testified that Abada used to gather Spanish-speaking people in more credible witnesses in the presence of the testator their place. In these gatherings, Abada and his companions would and of each other; 27 talk in the Spanish language. This sufficiently proves that Abada speaks the Spanish language. (4) The testator or the person requested by him to write Requisites of a Will under the Code of Civil Procedure his name and the instrumental witnesses of the will must sign each and every page of the will on the left margin; (5) The pages of the will must be numbered correlatively in letters placed on the upper part of each sheet; (6) The attestation shall state the number of sheets or pages used, upon which the will is written, and the fact that the testator signed the will and every page of the will, or caused some other person to write his name, under his express direction, in the presence of three witnesses, and the witnesses witnessed and signed the will and all pages of the will in the presence of the testator and of each other. The Attestation Clause of Abadas Will A scrutiny of Abadas will shows that it has an attestation clause. The attestation clause of Abadas will reads: Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del mismo. Y en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador al pie de este documento y en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo, las cuales estan paginadas

31

correlativamente con las letras "UNO" y "DOS en la parte superior where its attestation clause serves the purpose of the law. x x x 33 28 1a\^/phi1.net de la carrilla. Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble alleges that the attestation clause fails to state the number of pages on which the will is written. The allegation has no merit. The phrase "en el margen izquierdo de todas y cada una de las dos hojas de que esta compuesto el mismo" which means "in the left margin of each and every one of the two pages consisting of the same" shows that the will consists of two pages. The pages are numbered correlatively with the letters "ONE" and "TWO" as can be gleaned from the phrase " las cuales estan paginadas correlativamente con las letras "UNO" y "DOS." Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator signed the will and its every page in the presence of three witnesses. She then faults the Court of Appeals for applying to the present case the rule on substantial 29 compliance found in Article 809 of the New Civil Code. The first sentence of the attestation clause reads: " Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra presencia en el margen izquierdo de todas y cada una de las hojas del mismo." The English translation is: "Subscribed and professed by the testator Alipio Abada as his last will and testament in our presence, the testator having also signed it in our presence on the left margin of each and every one of the pages of the same." The attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses. However, Caponong-Noble is correct in saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that three witnesses signed it. This Court has applied the rule on substantial compliance even before the effectivity of the New Civil Code. In Dichoso de Ticson 30 v. De Gorostiza, the Court recognized that there are two divergent tendencies in the law on wills, one being based on strict construction and the other on liberal construction. In Dichoso, the 31 Court noted that Abangan v. Abangan, the basic case on the liberal construction, is cited with approval in later decisions of the Court. In Adeva vda. De Leynez v. Leynez, the petitioner, arguing for liberal construction of applicable laws, enumerated a long line of cases to support her argument while the respondent, contending that the rule on strict construction should apply, also cited a long series of cases to support his view. The Court, after examining the cases invoked by the parties, held:
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We rule to apply the liberal construction in the probate of Abadas will. Abadas will clearly shows four signatures: that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question on the number of the witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde. The Court explained the extent and limits of the rule on liberal construction, thus: [T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself.l^vvphi1.net They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law . This clear, sharp limitation eliminates uncertainty and ought to banish any fear of 34 dire results. (Emphasis supplied) The phrase "en presencia de nosotros" or "in our presence" coupled with the signatures appearing on the will itself and after the attestation clause could only mean that: (1) Abada subscribed to and professed before the three witnesses that the document was his last will, and (2) Abada signed the will and the left margin of each page of the will in the presence of these three witnesses. Finally, Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the testator and of each other. This Court has ruled: Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if from the language employed it can reasonably be deduced that the 35 attestation clause fulfills what the law expects of it. The last part of the attestation clause states "en testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del testador." In English, this means "in its witness, every one of us also signed in our presence and of the testator." This clearly shows that the attesting witnesses witnessed the signing of the will of the testator, and that each witness signed the will in the presence of one another and of the testator. WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. SO ORDERED. G.R. No. 141882 March 11, 2005

x x x It is, of course, not possible to lay down a general rule, rigid and inflexible, which would be applicable to all cases. More than anything else, the facts and circumstances of record are to be considered in the application of any given rule. If the surrounding circumstances point to a regular execution of the will, and the DECISION instrument appears to have been executed substantially in accordance with the requirements of the law, the inclination TINGA, J.: should, in the absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although the document may suffer from some imperfection of language, or other Once again, the Court is faced with the perennial conflict of property claims between two sets of heirs, a conflict ironically non-essential defect. x x x. made grievous by the fact that the decedent in this case had resorted to great lengths to allocate which properties should go to An attestation clause is made for the purpose of preserving, in which set of heirs. permanent form, a record of the facts attending the execution of the will, so that in case of failure of the memory of the subscribing 1 witnesses, or other casualty, they may still be proved. (Thompson This is a Rule 45 petition assailing the Decision dated 30 September 1999 of the Court of Appeals which reversed the on Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected

J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, Petitioner, vs. ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.

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Decision dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of Bais City, Negros Oriental. The factual antecedents follow. Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and after her death, with Milagros Donio Teves (Milagros Donio). Don Julian had two children with Antonia, namely: Josefa Teves Escao (Josefa) and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves (Milagros 3 Reyes) and Pedro Reyes Teves (Pedro).

On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the subject lot in its name. A court, so it 11 appeared, issued an order cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia on 12 November 1979, and on the same date TCT No. T-375 was issued in the name of 12 petitioner. Since then, petitioner has been paying taxes assessed 13 on the subject lot.

Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the execution of the Compromise Agreement. In 1974, they entered into a yearly lease agreement with spouses Antonio Balansag and Hilaria Cadayday, 14 respondents herein. On Lot No. 63, respondents temporarily established their home and constructed a lumber yard. Subsequently, Milagros Donio and her children executed a Deed 15 The present controversy involves a parcel of land covering nine of Extrajudicial Partition of Real Estate dated 18 March 1980. In hundred and fifty-four (954) square meters, known as Lot No. 63 of the deed of partition, Lot No. 63 was allotted to Milagros Donio and the Bais Cadastre, which was originally registered in the name of her two (2) children, Maria Evelyn and Jose Catalino. Unaware the conjugal partnership of Don Julian and Antonia under Original that the subject lot was already registered in the name of petitioner Certificate of Title (OCT) No. 5203 of the Registry of Deeds of Bais in 1979, respondents bought Lot No. 63 from Milagros Donio as 16 City. When Antonia died, the land was among the properties evidenced by the Deed of Absolute Sale of Real Estate dated 9 involved in an action for partition and damages docketed as Civil November 1983. Case No. 3443 entitled "Josefa Teves Escao v. Julian Teves, 4 Emilio B. Teves, et al." Milagros Donio, the second wife of Don Julian, participated as an intervenor. Thereafter, the parties to the At the Register of Deeds while trying to register the deed of 5 case entered into a Compromise Agreement which embodied the absolute sale, respondents discovered that the lot was already titled in the name of petitioner. Thus, they failed to register the partition of all the properties of Don Julian. 17 deed. On the basis of the compromise agreement and approving the th same, the Court of First Instance (CFI) of Negros Oriental, 12 6 Judicial District, rendered a Decision dated 31 January 1964. The CFI decision declared a tract of land known as Hacienda Medalla Milagrosa as property owned in common by Don Julian and his two (2) children of the first marriage. The property was to remain 7 undivided during the lifetime of Don Julian. Josefa and Emilio likewise were given other properties at Bais, including the electric plant, the "movie property," the commercial areas, and the house where Don Julian was living. The remainder of the properties was retained by Don Julian, including Lot No. 63. Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the effect of the eventual death of Don Julian vis--vis his heirs: 13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis supplied) On 16 November 1972, Don Julian, Emilio and Josefa executed a 8 Deed of Assignment of Assets with Assumption of Liabilities in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an instrument entitled Supplemental to the Deed of Assignment of Assets with the 9 Assumption of Liabilities (Supplemental Deed) dated 31 July 1973. This instrument which constitutes a supplement to the earlier deed of assignment transferred ownership over Lot No. 63, 10 among other properties, in favor of petitioner. On 14 April 1974, Don Julian died intestate. Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City, seeking the declaration of nullity and cancellation of TCT No. T-375 in the name of petitioner and the transfer of the title to Lot No. 63 in their names, plus 18 damages. After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of the decision reads: WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in favor of the defendant and against the plaintiff, and thus hereby orders: (1) That complaint be dismissed; (2) That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under Transfer Certificate of Title No. T-375; (3) That plaintiffs pay costs. Finding no basis on the counterclaim by defendant, the same is hereby ordered 19 dismissed. The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of the Compromise 20 Agreement. It added that the direct adjudication of the properties listed in the Compromise Agreement was only in favor of Don Julian and his two children by the first marriage, Josefa and 21 Emilio. Paragraph 13 served only as an amplification of the terms of the adjudication in favor of Don Julian and his two children by the first marriage. According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the estate of their deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the latters death. Thus, upon Don Julians death, Josefa and Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla Milagrosa which was adjudicated in favor of Don Julian in the Compromise Agreement. As such, the properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced legitimary rights of Josefa and Emilio, and Don Julian was under no impediment to allocate the subject lot, among 22 his other properties, to Milagros Donio and her four (4) children.

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The trial court further stressed that with the use of the words "shall be," the adjudication in favor of Milagros Donio and her four (4) children was not final and operative, as the lot was still subject to 23 future disposition by Don Julian during his lifetime. It cited 24 paragraph 14 of the Compromise Agreement in support of his 25 conclusion. With Lot No. 63 being the conjugal property of Don Julian and Antonia, the trial court also declared that Milagros Donio and her children had no hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only 26 upon the death of the latter. The trial court ruled that at the time of Don Julians death on 14 April 1974, Lot No. 63 was no longer a part of his estate since he had earlier assigned it to petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of extrajudicial partition by Milagros Donio and her children, and not being the owners they could not have sold it. Had respondents exercised prudence before buying the subject lot by investigating the registration of the same with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial 27 court added. The Court of Appeals, however, reversed the trial courts decision. The decretal part of the appellate decision reads: WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T375 registered in the name of J.L.T. Agro, Inc. as null and void. With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves. SO ORDERED.
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out by the evidence on record nonetheless warrants the affirmance of the result reached by the Court of Appeals in favor of respondents. Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be quoted again: 13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and other successional rights which would correspond to them of the other half belonging to their father, Julian L.Teves. In other words, the properties now selected and adjudicated to Julian L. Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves." (Emphasis supplied) With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the heirs of Don Julian from the second marriage became automatically operative upon the approval of the Compromise Agreement, thereby vesting on them the right to validly dispose of Lot No. 63 in favor of respondents. Petitioner argues that the appellate court erred in holding that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declaration in 34 Blas v. Santos is relevant, where we defined future inheritance as any property or right not in existence or capable of determination at the time of the contract, that a person may in the future acquire by succession. Article 1347 of the New Civil Code explicitly provides: ART. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts.

Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don Julians two sets of heirs their future legitimes in his estate except as regards 29 his (Don Julians) share in Hacienda Medalla Milagrosa. The two sets of heirs acquired full ownership and possession of the properties respectively adjudicated to them in the CFI decision and Don Julian himself could no longer dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes res 30 judicata. Don Julian could have disposed of only his conjugal 31 share in the Hacienda Medalla Milagrosa.

The appellate court likewise emphasized that nobody in his right No contract may be entered into upon future judgment would preterit his legal heirs by simply executing a inheritance except in cases expressly document like the Supplemental Deed which practically covers all authorized by law. properties which Don Julian had reserved in favor of his heirs from the second marriage. It also found out that the blanks reserved for the Book No. and Page No. at the upper right corner of TCT No. T- All services which are not contrary to law, morals, good customs, 375, "to identify the exact location where the said title was public order or public policy may likewise be the object of a registered or transferred," were not filled up, thereby indicating that contract. 32 the TCT is "spurious and of dubious origin." Aggrieved by the appellate courts decision, petitioner elevated it to this Court via a petition for review on certiorari, raising pure questions of law. Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a) that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian; (b) that Don Julian had no right to dispose of or assign Lot No. 63 to petitioner because he reserved the same for his heirs from the second marriage pursuant to the Compromise Agreement; (c) that the Supplemental Deed was tantamount to a preterition of his heirs from the second marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not containing 33 entries on the Book No. and Page No. While most of petitioners legal arguments have merit, the application of the appropriate provisions of law to the facts borne Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of a contract. The exception is that no contract may be entered into with respect to future inheritance, and the exception to the 35 exception is the partition inter vivos referred to in Article 1080. For the inheritance to be considered "future," the succession must 36 not have been opened at the time of the contract. A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur: (1) That the succession has not yet been opened; (2) That the object of the contract forms part of the inheritance; and

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(3) That the promissor has, with respect to the object, an expectancy of a right which is purely 37 hereditary in nature. The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general rule on future things, reads: ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. .... In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is made by an act inter vivos, no 38 formalities are prescribed by the Article. The partition will of course be effective only after death. It does not necessarily require the formalities of a will for after all it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a donation be required since donation will not be the mode of acquiring the ownership here after death; since no will has been made it follows that the mode will be succession (intestate succession). Besides, the partition here is merely the physical 39 determination of the part to be given to each heir. The historical antecedent of Article 1080 of the New Civil Code is 40 Article 1056 of the old Civil Code. The only change in the provision is that Article 1080 now permits any person (not a testator, as under the old law) to partition his estate by act inter vivos. This was intended to abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos, he 41 must first make a will with all the formalities provided by law. Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his property, and distribute them among his heirs, and this partition is neither a donation nor a testament, but an instrument of a special character, sui generis, which is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death. It derives its binding force on the heirs from the respect due to the will of the owner of the property, limited only by his 42 creditors and the intangibility of the legitime of the forced heirs. The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However, considering that it would become legally operative only upon the death of Don Julian, the right of his heirs from the second marriage to the properties adjudicated to him under the compromise agreement was but a mere expectancy. It was a bare hope of succession to the property of their father. Being the prospect of a future acquisition, the interest by its nature was inchoate. It had no attribute of property, and the interest to which it related was at the 43 time nonexistent and might never exist. Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian remained the owner of the property since ownership over the subject lot would only pass to his heirs from the second marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot be challenged by Milagros Donio and her children on the ground that it had already been adjudicated to them by virtue of the compromise agreement. Emerging as the crucial question in this case is whether Don Julian had validly transferred ownership of the subject lot during his lifetime. The lower court ruled that he had done so through the Supplemental Deed. The appellate court disagreed, holding that the Supplemental Deed is not valid, containing as it does a prohibited preterition of Don Julians heirs from the second marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. The contention is well-founded.

Article 854 provides that the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, 44 nor assigning to him some part of the properties. It is the total 45 omission of a compulsory heir in the direct line from inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the 46 will in the latter case. But there is no preterition where the testator allotted to a descendant a share less than the legitime, 47 since there was no total omission of a forced heir. In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from the second marriage could inherit from Don Julian upon his death. A couple of provisions in the Compromise Agreement are 48 indicative of Don Julians desire along this line. Hence, the total omission from inheritance of Don Julians heirs from the second marriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded. Despite the debunking of respondents argument on preterition, still the petition would ultimately rise or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian was also the president and director of petitioner, and his daughter from the first marriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against such a transfer to a family corporation. Yet close scrutiny is in order, especially considering that such transfer would remove Lot No. 63 from the estate from which Milagros and her children could inherit. Both the alleged transfer deed and the title which necessarily must have emanated from it have to be subjected to incisive and detailed examination. Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property in favor of the 49 person whose name appears therein. A certificate of title accumulates in one document a precise and correct statement of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly the 50 real interest of its owner. To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of evidence on the defect of the title must be adduced to overcome the predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate courts ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the Supplemental Deed would not affect the validity of petitioners title for this Court has ruled that a thumbmark is a recognized mode of 51 signature. The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No. T-375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox, conventional and normal process established by law. And, worse still, the illegality is reflected on the face of both titles. Where, as in this case, the transferee relies on a voluntary instrument to secure the issuance of a new title in his name such instrument has to be presented to the Registry of Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read, thus: SEC. 53. Presentation of owners duplicate upon entry of new certificate. No voluntary instrument shall be registered by the Register of Deeds unless the owners duplicate certificate is presented with such instrument, except in

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cases expressly provided for in this Decree or upon order of the court, for cause shown. (Emphasis supplied) .... SEC. 57. Procedure in registration of conveyances. An owner desiring to convey his registered land in fee simple shall execute and register a deed of conveyance in a form sufficient in law. The Register of Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall prepare and deliver to him an owners duplicate certificate. The Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the registration book in which the new certificate is registered and a reference by number to the last preceding certificate. The original and the owners duplicate of the grantors certificate shall be stamped "cancelled." The deed of conveyance shall be filed and endorsed with the number and the place of registration of the certificate of title of the land conveyed. (Emphasis supplied) As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it to the Register of Deeds to secure the transfer of the title in its name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the succeeding TCT No. T-375 either which shows that it had presented the Supplemental Deed. In fact, there is absolutely no mention of a reference to said document in the original and transfer certificates of title. It is in this regard that the finding of the Court of Appeals concerning the absence of entries on the blanks intended for the Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT No. T-375 in its place are not predicated on a valid transaction. What appears instead on OCT No. 5203 is the following pertinent entry: Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC. CONDITIONS: Lost owners duplicate is hereby cancelled, and null and void and a new Certificate of Title No. 375 is issued per Order of the Court of First Instance on file in this office. Date of Instrument: November 12, 1979 Date of Inscription: Nov. 12, 1979 4:00 P.M. (SGD) MANUEL C. MONTESA Acting Deputy Register of Deeds II 52 (Emphasis supplied) What the entry indicates is that the owners duplicate of OCT No. 5203 was lost, a petition for the reconstitution of the said owners duplicate was filed in court, and the court issued an order for the reconstitution of the owners duplicate and its replacement with a new one. But if the entry is to be believed, the court concerned (CFI, according to the entry) issued an order for the issuance of a new title which is TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of Deeds had not been lost. Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and replacement of the lost title only, nothing else. Since what was lost is the owners copy of OCT No. 5203, only that owners copy could be ordered replaced. Thus, the Register of Deeds exceeded his

authority in issuing not just a reconstituted owners copy of the original certificate of title but a new transfer certificate of title in place of the original certificate of title. But if the court order, as the entry intimates, directed the issuance of a new transfer certificate of titleeven designating the very number of the new transfer certificate of title itselfthe order would be patently unlawful. A court cannot legally order the cancellation and replacement of the 53 original of the O.C.T. which has not been lost, as the petition for reconstitution is premised on the loss merely of the owners duplicate of the OCT Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the transfer of title to the subject lot in its name, instead of the Supplemental Deed which should be its proper course of action. It was so constrained to do because the Supplemental Deed does not constitute a deed of conveyance of the "registered land in fee simple" "in a form sufficient in law," as required by Section 57 of P.D. No. 1529. A plain reading of the pertinent provisions of the Supplemental Deed discloses that the assignment is not supported by any consideration. The provision reads: .... WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by Julian L. Teves, Emilio B. Teves th and Josefa T. Escao at Dumaguete City on 16 day of November 1972 and ratified in the City of Dumaguete before Notary Public Lenin Victoriano, and entered in the latters notarial register as Doc. No. 367; Page No. 17; Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T. Escao, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as reflected in the Balance Sheet of the former as of December 31, 1971. WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of th First Instance of Negros Oriental, 12 Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to Don Julian L. Teves. We quote. From the properties at Bais Adjudicated to Don Julian L.Teves .... Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed value - P2,720.00 .... WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the registration of the transfer of the above corporation. NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel of land[s] with a fair market value of EIGHTYFOUR THOUSAND PESOS (P84,000.00), Philippine Currency, and which transfer, conveyance and assignment shall become 54 absolute upon signing. (Emphasis supplied) The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent the consideration for the

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assignment made by Don Julian. Rather, it is a mere statement of the fair market value of all the nineteen (19) properties enumerated in the instrument, of which Lot No. 63 is just one, that were transferred by Don Julian in favor of petitioner. 55 Consequently, the testimony of petitioners accountant that the assignment is supported by consideration cannot prevail over the clear provision to the contrary in the Supplemental Deed. The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is annotated on the back of the TCT No. 56 T-375 as the consideration for the assignment. However, the 57 said annotation shows that the mortgage was actually executed 58 in favor of Rehabilitation Finance Corporation, not of petitioner. Clearly, said mortgage, executed as it was in favor of the Rehabilitation Finance Corporation and there being no showing that petitioner itself paid off the mortgate obligation, could not have been the consideration for the assignment to petitioner. Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation which is established. Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void 59 or inexistent pursuant to Article 1409, paragraph (2). The absence of the usual recital of consideration in a transaction which normally should be supported by a consideration such as the assignment made by Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact that the assignee is a corporation of which Don Julian himself was also the President and Director, forecloses the application of the presumption of 60 existence of consideration established by law. Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil Code is clear on the point, thus: Art. 749. In order that the donation of the immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. In Sumipat, et al v. Banga, et al., this Court declared that title to immovable property does not pass from the donor to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void. In the case at bar, although the Supplemental Deed appears in a 62 public document, the absence of acceptance by the donee in the same deed or even in a separate document is a glaring violation of the requirement. One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis to a protracted litigation and 63 avoid multiplicity of suits are worth pursuing at all times. Thus, this Court has ruled that appellate courts have ample authority to rule on specific matters not assigned as errors or otherwise not
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raised in an appeal, if these are indispensable or necessary to the 64 just resolution of the pleaded issues. Specifically, matters not assigned as errors on appeal but consideration of which are necessary in arriving at a just decision and complete resolution of the case, or to serve the interest of justice or to avoid dispensing 65 piecemeal justice. In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or void, is unmistakably determinative of the underlying controversy. In other words, the issue of validity or nullity of the instrument which is at the core of the controversy is interwoven with the issues adopted by the 66 parties and the rulings of the trial court and the appellate court. Thus, this Court is also resolute in striking down the alleged deed in this case, especially as it appears on its face to be a blatant nullity. WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc. SO ORDERED.

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