TIROL, MARK JASON S.

DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and CONNIE ALUAD, Petitioners, versus ZENAIDO ALUAD, Respondent.

G.R. NO. 176943, OCTOBER 17, 2008

PRINCIPLES:

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will shall, also sign, as aforesaid, each and every page thereof, except the last on the left margin and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that that 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.FACTS:Petitioners mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin).

Crispin was the owner of six lots located in Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself and thereafter executed a Deed of Donation Inter Vivos of Real Property in favor of Maria. The deed provided that:

will become effective upon death of the Donor, but in the event that the Donee should die before the Donor, the present donation shall be deemed rescinded. Provided, however, that anytime during the lifetime of the Donor or anyone of them who should survive, they could use, encumber or even dispose of any or even all of the parcels of the land.

Matilde sold one lot to respondent by deed of absolute sale of real property. Subsequently, she executed a last will and testament devising the other 5 lots to respondent.

Matilde died on January 25, 1994, while Maria died on September 24 of the same year.

On August 21, 1995, Marias heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas City a Complaint, for declaration and recovery of ownership and possession of two lots, and damages against respondent.

Trial court ruled in favor if the petitioners. It held that Matilde could not have transmitted any right over the two lots to respondent, she having previously alienated them to Maria via the Deed of Donation.

The Court of Appeals reversed the trial courts decision, it holding that the Deed of Donation was actually a donation mortis causa, not inter vivos, and as such it had to, but did not, comply with the formalities of a will.

ISSUE:

Whether or not the donation is mortis causa and whether or not the formalities of a will are complied withHELD:

It is donation mortis causa and the formalities of a will are not complied with.

The Court finds the donation to petitioners mother one of mortis causa, it having the following characteristics:

(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;

(2) That before the death of the transferor, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and

(3) That the transfer should be void if the transferor should survive the transferee

The statement in the Deed of Donation reading anytime during the lifetime of the DONOR or anyone of them who should survive, they could use, encumber or even dispose of any or even all the parcels of land herein donated means that Matilde retained ownership of the lots and reserved in her the right to dispose them.

For the right to dispose of a thing without other limitations than those established by law is an attribute of ownership.The phrase in the Deed of Donation or anyone of them who should survive is of course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of the donor, hence, said phrase could only have referred to the donor Matilde. The donation being then mortis causa, the formalities of a will should have been observed but they were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code.

Further, the witnesses did not even sign the attestation clause the execution of which clause is a requirement separate from the subscription of the will and the affixing of signatures on the left-hand margins of the pages of the will.

Furthermore, the witnesses did not acknowledge the will before the notary public, which is not in accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged before a notary public by the testator and the witnesses.More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the upper part of each page was not also followed.

The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the formalities of a will, it is void and transmitted no right to petitioners mother. But even assuming arguendo that the formalities were observed, since it was not probated, no right to the two lots was transmitted to Maria.