When the deed of donation provides that the donor will not dispose or take away the property donated, he is in effect making a donation inter vivos.

Here, the 2nd characteristic of a donation mortis causa (revocable at will) is absent.


Cavite, 1953:
Basilisa Comerciant, mom to five children, executed a Deed of Donation to her five children covered by Transfer Certificate 3268, with an area of 150 square meters. The said document reads as follows:
“xxx Kusang loob na ibinibigay ko at ipinagkakaloob ng ganap at hindi na mababawi sa naulit ng apat na anak ko at sa kanilang mga tagamagmana (sic),xxx”

Thereafter, the parties executed another notarized document that stated”
“xxx Na ang titulo numero TCT-T-2260 (RT-4036) ng Lungsod ng Kabite, bahay sa loteng tirahan ng Bagong Pook na nababanggit sa nasabing kasulatan, ay mananatili sa poder o possession ng Ina, na si Basilisa Comerciante habang siya ay nabubuhay at Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay ang nasabing Basilisa Comerciante. Xxx “
On Feb 1979, Basilia executed a Deed of Sale in favor of Apolinaria Austria Magat for P5000. Basilia’s children contested the act, saying that the donation was intervivos and thereby irrevocable. The trial court disagreed, stating it was mortis causa and therefore revocable. The case went to the CA and the case was reversed. CA found the document to be intervivos because of the phrase “ganap at hindi na mababawi sa naulit”

Basilia, to their mind, definitely had no plans of revoking the donation. The document executed thereafter upheld such irrevocability.

The parties proceeded to the Supreme Court

ISSUE: Whether or not the deed of donation was intervivos.


The court found that whether the donation is inter vivos or mortis causa depends on whether the donor intended to transfer ownership over the properties upon the execution of the deed.

In Bonsato v. Court of Appeals, the court recalls the characteristics of a donation mortis causa,:
(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;
(3) That the transfer should be void if the transferor should survive the transferee.
For the case at bar, the phrase “hindi na mababawi” definitely exudes the character of an intervivos agreement. The other provisions therein which seemingly make the donation mortis causa do not go against the irrevocable character of the subject donation. According to the petitioner, the provisions which state that the same will only take effect upon the death of the donor and that there is a prohibition to alienate, encumber is mortis causa. The court disagrees. The said provisions should be harmonized with its express irrevocability. In Bonsato where the donation per the deed of donation would also take effect upon the death of the donor with reservation for the donor to enjoy the fruits of the land, the Court held that the said statements only mean that “after the donor’s death, the donation will take effect so as to make the donees the absolute owners of the donated property, free from all liens and encumbrances.

In Gestopa v. Court of Appeals, the Court held that 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 and not anymore the naked title of ownership over the property donated. In the case at bar, the 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 his naked title of ownership thereto and has maintained only the right to use (jus utendi) and possess (jus possidendi) the subject donated property.

Furthermore, the act of selling the property to petitioner herein cannot be construed as a valid act of revocation of donation. A formal case ought to be filed pursuant to Art 764 which speaks of an action bearing a prescriptive period of 4 years from non compliance with the deed of donation. In this case, the 4 year prescriptive period does not even apply because none of the terms (if any) were even violated.

AUSTRIA-MAGAT VS. CA- Donation Inter Vivos