Irrevocable act

Donation of real property may be made from one living person to another without death in mind(inter vivos), or by reason or in contemplation of death (mortis causa). In donation mortis causa, the donor retains full ownership of the property while alive, ownership being transferred only upon his death. In donation inter vivos, the donee already acquires title to the property while the donor is still alive.If the deed of donation provides that ito ay magkakabisa lamang simula sa araw na ako’y pumanaw, does it necessarily mean that the donation is a donation mortis causa? In other words, what provisions in the subject deed are crucial for the determination of the class to which the donation belongs? This is the issue raised and answered in this Deed of Donation made by Elisa, a widow, to her four surviving children: Matilde, Carmen, Rosita and Tino.

The deed of donation dated December 17, 1975 covered a parcel of residential land together with the improvements thereon containing an area of 150 sq. meters which Elisa acquired in 1953.In the said deed, Elisa donated and bequeathed to her four aforenamed children freely, voluntarily and absolutely the said real property in consideration of the love and service they have shown and given to her.The deed was written in tagalog and more specifically provides that: alang-alang sa mabuting paglilingkod at pagtingin na iniukol sa akin ng apat kong tunay na anak, na sina Matilde, Rosita, Carmen at Tino, kusang loob na ibinibigay ko at ipinagkakaloob (sa kanila) ng ganap at hindi na mababawi ang nasabing lupa. It is also provided in the deed that: ang kaloob na ito ay magkakabisa lamang simula sa araw na ako’y pumanaw. Also contained in the said deed was the acceptance clause signed by the four children.

Attached to the deed was another notarized document wherein both Elisa and her children declared that the title to the land and the house thereon, ay mananatili sa poder o possession ng Ina na si Elisa habang siya ay nabubuhay, at gayon din ang nasabing titulo ay hindi mapapasangla o ang lupa ay maipagbibili habang maybuhay ang nasabing si Elisa.

But four years later, or on February 6,1979, Elisa executed a deed of absolute sale of the said house and lot only in favor of one of the donees Rosita. As a result, the title in the name of Elisa was cancelled and in lieu thereof, a new title was issued in the name of Rosita.

Matilde, Carmen and Tino could not question the sale perhaps in deference to their mother. But later on, when Elisa and two of her daughters-donees, Matilde and Carmen were already dead , the heirs of the latter, together with Tino, sued Rosita for the annulment of the TCT and other relevant documents and for reconveyance of the property with damages. According to them,the deed of absolute sale executed by Elisa in favor of Rosita was null and void because the land subject thereof was already donated inter vivos. Rosita on the other hand contended that the donation was a donation mortis causa inasmuch as the same expressly provided that it would take effect upon the death of the donor ("magkakabisa lamang simula sa araw na ako’y pumanaw"). Being a donation mortis causa, Rosita argued that the deed of donation to be valid must have all the formalities of a will, which it had not.

Was Rosita correct?

No.

Whether the donation is inter vivos or mortis causa depends on whether the donor intended to transfer ownership over the property upon the execution of the deed. What is most significant in determining the type of donation is the absence of stipulation that the donor could revoke the donation. Irrevocability is a quality absolutely incompatible with the idea of conveyance mortis causa where revocability is the essence of the act.

Construing together the provisions of the deed of donation in this case,said document is a donation inter vivos. The express irrevocability of the same (hindi na mababawi) is the distinctive standard that identifies it as a donation inter vivos. The other provisions therein which seemingly make the donation mortis causa do not go against the irrevocable character of the subject donation. The provisions which state that the same will take effect only upon the death of the donor (simula ng araw na ako’y pumanaw) and that the property could not be alienated, encumbered, sold or disposed of (hindi mapapasangla o maipagbibili), should be harmonized with its express irrevocability. To take effect upon the death of the donor only means that the donees become the absolute owners free from all liens and encumbrances upon the death of the donor who has reserved the right to use and to the fruits of the property while alive (ang titulo at bahay ay mananatili sa poder o possession ng ina). This provision in the deed of donation that the donated property will remain in the possession of the donor just goes to show that the donor has given up her naked title of ownership thereto and has retained only the right to use and the right to the fruits. The prohibition to alienate does not necessarily defeat the inter vivos character of the donation. It even highlights the fact that what remains with the donor is the right of usufruct (right to the fruits) and not anymore the naked title of ownership over the property donated.

Furthermore, the prohibition to alienate the property is couched in general terms such that even the donor is deemed included in the said prohibition. This also supports the irrevocable nature of the donation considering that the donor has already divested herself of the right to dispose of the donated property.

Another indication in the deed of donation that it is inter vivos is the acceptance clause signed by the donees. An acceptance clause is a mark that the donation is inter vivos. Acceptance is a requirement of donations inter vivos. On the other hand, donations mortis causa, being in the form of a will, are not required to be accepted by the donees during the donor’s lifetime.

So, the deed of sale to Rosita is null and void and the title to the house and lot in her name should be cancelled. Rosita, Tino and the heirs of Carmen and Matilde are co-owners of the land in question pursuant to the deed of donation executed by Elisa on December 17, 1975 (Austria-Magat vs. Court of Appeals et.al. G.R.106755 February 1,2002).

* * *

E-mail us at: [email protected]