Spouses Sicad vs Court of Appeals294 SCRA 183 Succession Donation Mortis Causa vs Donation Inter VivosIn 1979, Aurora Montinola executed a deed entitled Deed of Donation Inter Vivos in favor of her three grandchildren Catalino Valderrama, Judy Valderrama, and Jesus Valderrama. The deed however provided that that the donation shall be effective only 10 years after Montinolas death. In 1980, theoriginaltitle of the parcel of land subject of the donation was cancelled and a new title was given to the Valderramas. Montinola however retained theoriginaltitle and she continued to perform acts of ownership over the parcel of land.In 1987, Montinola revoked the donation because of acts of ingratitude committed against her by the Valderramas; that the Valderramas defamed her; that she overheard the Valderramas plotting against her life. In 1990, she petitioned to have her title be reinstated and her grandchildrens title be cancelled. She said that the donation is actually a donation mortis causa and that the same is void because the formalities of a will were not complied with. In the same year, she sold her property to spouses Ernesto and Evelyn Sicad.The Valderramas opposed the petition. In 1993, while the case was still pending, Montinola died. The petition was continued by the spouses Sicad.ISSUE:Whether or not the Deed of Donation Inter Vivos is actually a donation mortis causa.HELD:Yes, the deed is a donation mortis causa. Montinola not only reserved for herself all the fruits of the property allegedly conveyed, but what is even more important, specially provided that without the knowledge and consent of the Montinola, the donated properties could not be disposed of in any way, thereby denying to the transferees the most essential attribute of ownership, the power to dispose of the properties. A donation which purports to be one inter vivos but withholds from the done (in this case the Valderramas) the right to dispose of the donated property during the donors lifetime is in truth one mortis causa. In a donation mortis causa the right of disposition is not transferred to the donee while the donor is still alive. The donation is therefore void because the formalities of a will, which is essentially a donation mortis causa, were not complied with.

THIRD DIVISION[G.R. No. 125888.August 13, 1998]SPOUSES ERNESTO and EVELYN SICAD,petitioners, vs.COURT OF APPEALS, CATALINO VALDERRAMA, JUDY CRISTINA M. VALDERRAMA and JESUS ANTONIO VALDERRAMA,respondents.DECISIONNARVASA,C.J.:The issue raised in the appeal bycertiorariat bar centers on the character of a deed of donation executed by the late Aurora VirtoVda.De Montinola of the City of Iloilo as eitherinter vivosormortis causa.That deed, entitled DEED OF DONATIONINTER VIVOS,[1]was executed by Montinola on December 11, 1979.It named as donees her grandchildren, namely: Catalino Valderrama, Judy Cristina M. Valderrama and Jesus Antonio Valderrama; and treated of a parcel of land, Lot 3231 of the Cadastral Survey of Panay, Capiz, covered by Transfer Certificate Title No. T-16105 in the name of Montinola.The deed also contained the signatures of the donees in acknowledgment of the acceptance of the donation.Montinolas Secretary, Gloria Salvilla, afterwards presented the deed for recording in the Property Registry, and the Register of Deeds cancelled TCT No. T-16105 (the donors title) and, in it place, issued TCT No. T-16622 on February 7, 1980, in the names of the donees.[2]Montinola however retained the owners duplicate copy of the new title (No. T-16622), as well as the property itself, until she transferred thesame ten (10) years later, on July 10, 1990, to the spouses, Ernesto and Evelyn Sicad.On March 12, 1987, Aurora Montinola drew up a deed of revocation of the donation,[3]and caused it to be annotated as an adverse claim on TCT No. T-16622 (issued, as aforestated, in her grandchildrens names).Then on August 24, 1990, she filed a petition with the Regional Trial Court in Roxas City for the cancellation of said TCT No. T-16622 and the reinstatement of TCT No. T-16105 (in her name), the case being docketed as Special Proceeding No. 3311.Her petition was founded on the theory that the donation to her three (3) grandchildren was onemortis causawhich thus had to comply with the formalities of a will; and since it had not, the donation was void and could not effectively serve as basis for the cancellation of TCT No. T-16105 and the issuance in its place of TCT No. T-16622.The donees (Montinolas grandchildren) opposed the petition.In their opposition dated August 29, 1990, they averred that the donation in their favor was oneinter vivoswhich, having fully complied with the requirements therefor set out in Article 729 of the Civil Code, was perfectly valid and efficacious.They also expressed doubt about the sincerity of their grandmothers intention to recover the donated property, since she had not pursued the matter of its revocation after having it annotated as an adverse claim.The case, originally treated as a special proceeding, was subsequently considered by the lower Court as an ordinary civil action in view of the allegations and issues raised in the pleadings.Pre-trial was had, followed by trial on the merits which was concluded with the filing of the parties memoranda.The Trial Court then rendered judgment on March 27, 1991, holding that the donation was indeed oneinter vivos, and dismissing Aurora Montinolas petition for lack of merit.[4]The matter of its revocation was not passed upon.Montinola elevated the case to the Court of Appeals, her appeal being docketed as CA-G.R. CV No. 33202.She however died on March 10, 1993,[5]while appeal was pending.Shortly after Montinolas demise, a Manifestation and Motion dated March 31, 1993 was filed by Ernesto Sicad and Evelyn Bofill-Sicad, herein petitioners,[6]in which they (a) alleged that they had become the owners of the property covered by TCT No. T-16622 in virtue of adeed of definite sale dated May 25, 1992accomplished by Montinola in their favor, which was confirmed by an affidavit dated November 26, 1997 also executed by the latter, and (b) prayed that they be substituted as appellants and allowed to prosecute the case in their own behalf.Another motion was subsequently presented under date of April 7, 1993, this time by the legal heirs of Aurora Montinola, namely:Ofelia M. de Leon, Estela M. Jaen and Teresita M. Valderrma.They declared that they were not interested in pursuing the case, and asked that the appeal be withdrawn.Montinolas counsel opposed the motion.On June 21, 1993, the Court of Appeals issued a Resolution: (a) ordering the substitution of the persons above mentionedOfelia M. de Leon, Estela M. Jaen and Teresita M. Valderama as plaintiffs-appellant in place of the late Aurora Montinola, as well as the joinder of the spouses Ernesto and Evelyn Bofill-Sicad as additional appellants;[7]and (b) denying the motion for the withdrawal of the appeal.On June 30, 1995, the Eighth Division of the Court of Appeals promulgated its Decision on the case affirming the judgment of the Regional Trial Court;[8]and on July 31, 1996, it denied the separate motions for reconsideration filed by Ofelia M. de Leon, Estela M. Jaen, and Teresita M. Valderrama, on the one hand, and by the spouses, Ernest and Evelyn Sicad, on the other.[9]The Sicad Spouses have appealed to this Court; and here, they contend that the following errors were committed by the Appellate Tribunal, to wit:1)** in ruling that the donation wasinter vivosand in not giving due weight to the revocation of the donation; and2)** in not ordering that the case be remanded for further reception of evidence.[10]The Comment filed for private respondents (the donees) under date of December 19, 1996 deals with what they consider theprincipal issue in this case**(i.e.)whether the donation is mortis causa or inter vivosand set forth the argument that the donor clearly intended to effect the immediate transfer of ownership to the donees, that the prohibition in the deed of donation against selling the property within ten (10) years after the death of the donor does not indicate that the donation ismortis causa,that the donors alleged act of physically keeping the title does not suggest any intention to defer the effectivity of the donation, that the payment of real property taxes is consistent with the donors reservation of the right of usufruct, that the donors intent is not determined by ** (her) self-serving post execution declarations, the donation was never effectively revoked, and petitioners have waived their right to question the proceedings in the trial court.[11]The Reply of the Sicad Spouses dated March 14, 1997 reiterates their thesis that the donation wasmortis causa, that the circumstances surrounding the execution of the deed, and the subsequent actions of the donor incontrovertibly signify the donors intent to transfer the property only after her death, that the donor did not intend to give effect to the donation, and that the procedure adopted by the Trial Court in the case was fatally defective.[12]A Rejoinder dated April 3, 1997 was then submitted by the Valderamas, traversing the assertions of the Reply.[13]Considering the focus of the opposing parties, and their conflicting theories, on the intention of Aurora Montinola in executing the document entitled Deed of DonationInter Vivos,it is needful to review the circumstances of the signing of that document by Montinola, as ostensible donor, and her grandchildren, as ostensible donees.The evidence establishes that on December 11, 1979, when the deed of donation prepared by Montinols lawyer (Atty. Treas) was read and explained by the latter to the parties.Montinola expressed her wish that the donation take effect only after ten (10) years from her death, and that the deed include a prohibition on the sale of the poperty for such period.Accordingly, a new proviso was inserted in the deed reading:however, the donees shall not sell or encumber the properties herein donated within 10 years after the death of the donor.[14]The actuality of the subsequent insertion of this new proviso is apparent on the face of the instrument; the intercalation is easily perceived and identified it was clearly typed on a different machine, and is crammed into the space between the penultimate paragraph of the deed and that immediately preceding it.[15]Not only did Aurora Montinola ordered the insertion in the deed of that restrictive proviso, but also, after recordation of the deed of donation, she never stopped treating the property as her own.She continued, as explicitly authorized in the deed itself, to possess he property, enjoy its fruits and otherwise exercise the rights of dominion, paying the property taxes as they fell due all these she did until she transferred the property to the Sicad Spouses on July 10, 1990.She did not give the new certificate of title to the ostensible donees but retained too, until she delivered it to the Sicads on the occasion of the sale of the property to them.In any event, the delivery of the title to the donees would have served no useful purpose since, as just stated, they were prohibited to effect any sale or encumbrance thereoffor a period of ten (10) years after the ostensible donors decease.And consistent with these acts denoting retention of ownership of the property was Montinolas openly expressed view that the donation was ineffectual and could not be given affect even after ten (10) years from her death.For this view she sought to obtain judicial approval.She brought suit on August 24, 1990 to cancel TCT no. T-16622 (issued to her grandchildren) premised precisely on the invalidity of the donation for failure to comply with the requisites of testamentary dispositions.Before that, she attempted to undo the conveyance to her grandchildrenby executiona deed of revocation of the donation on March 12, 1987, and causing annotation thereof as an adverse claim on said TCT No. T-16622.She also exercised indisputable acts of ownership over said property by executing, as just stated, deeds intended to pass title over it to third parties petitioner herein.[16]As already intimated, the real nature of a deed is to be ascertained by both its language and the intention of the parties as demonstrated by the circumstances attendant upon its execution.In this respect, case law has laid down significant parameters.Thus, in a decision handed down in 1946,[17]this Court construed a deed purporting to be a donationinter vivosto be in truth onemortis causabecause it stipulated (like the one now being inquired into) that all rents, proceeds, fruits, of the donated properties shall remain for the exclusive benefit and disposal of the donor, Margarita David, during her lifetime; and that, without the knowledge and consent of the donor, the donated properties could not be disposed of in any way, whether by sale, mortgage, barter, or in any other way possible.On these essential premises, the Court said, such a donation must be deemed onemortis causa, because the combined effect of the circumstances surrounding the execution of the deed of donation and of the above-quoted clauses thereof ** (was that) the most essential elements of ownership the right to dispose of the donated properties and the right to enjoy the products, profits, possession remained with Margarita David during her lifetime, and would accrue to the donees only after Margarita Davids death.So, too, in the case at bar, did these rights remain with Aurora Montinola during her lifetime, and could not pass to the donees until ten (10) years after her death.In another case decided in 1954 involving similar issue, Bonsato v. Court of Appeals,[18]this Court emphasized that the decisive characteristics of a donationmortis causa, which it had taken into account in David v. Sison, were that the donor not only reserved for herself all the fruits of the property allegedly conveyed, but what is even more important, especially provided that without knowledge and consent of the donor, the donated properties could not be disposed of in any way,; thereby denying to the transferees the most essential attribute of ownership, the power to dispose of the properties.A donation which purports to be oneinter vivosbut withholds form the donee that right to dispose of the donated property during the donors lifetime is in truth onemortis causa.In a donationmortis causathe right of disposition is not transferred to the donee while the donor is still alive.[19]In the instant case, nothing of any consequence was transferred by the deed of donation in question to Montinolas grandchildren, the ostensible donees.They did not get possession of the property donated.They did not acquire the right to the fruits thereof, or any other right of dominion over the property.More importantly, they did not acquire the right to dispose of the property this would accrue to them only after ten (10) years from Montinolas death.Indeed, they never even laid hands on the certificate of title to the same.They were therefore simply paper owners of the donated property.All these circumstances, including, to repeat, the explicit provisions of the deed of donation reserving the exercise of rights of ownership to the donee and prohibiting the sale or encumbrance of the property until ten (10) years after her death ineluctably lead to the conclusion that the donation in question was a donationmortis causa, contemplating a transfer of ownership to the donees only after the donors demise.The case of Alejandro v. Geraldez[20]cited by the Court of Appeals in support of its challenged judgment is not quite relevant.For in the deed of donation there in issue, there was a partial relinquishment of the right to dispose of the property, in the event only that this became necessary to defray the expenses and support of the donors.That limited right to dispose of the donated lots, said this Court, implies that ownership had passed to ** (the donees) by means of the donation and **, therefore, the donation was already effective during the donors lifetime.That is the characteristic of a donationinter vivos.On the other hand, in the case at bar, the donees were expressly prohibited to make any disposition of any nature or for any purpose whatever during the donors lifetime, and until ten (10) years after her death a prohibition which, it may be added, makes inapplicable the ruling in Castro v. Court of Appeals[21]where no such prohibition was imposed, and the donor retained only the usufruct over the property.The Valderramas argument that the donation isinter vivosin character and that the prohibition against their disposition of the donated property is merely a condition which, if violated, would give cause for its revocation, begs the question.It assumes that they have the right to make a disposition of the property, which they do not.The argument also makes no sense, because if they had the right to dispose of the property and did in fact dispose of it to a third person, the revocation of the donation they speak of would be of no utility or benefit to the donor, since such a revocation would not necessarily result in the restoration of the donors ownership and enjoyment of the property.It is also error to suppose that the donation under review should be deemed oneinter vivossimply because founded on considerations of love and affection.In Alejandro v. Geraldez,supra,[22]this Court also observed that the fact that the donation is given in consideration of love and affection ** is not a characteristic of donationinter vivos(solely) because transfersmortis causamay also be made for the same reason.Similarly, in Bonsato v. Court of Appeals,supra, this Court opined that the fact that the conveyance was due to the affection of the donor to the donees and services rendered by the latter,is of no particular significance in determining whether the deeds, Exh. 1 and 2, constitute transfersinter vivosor not, because a legacy may have identical motivation.[23]Finally, it is germane to advert to the legal principle in Article 1378 of the Civil Code to the effect that in the case of doubt relative to a gratuitous contract, the construction must be that entailing the least transmission of rights and interests.[24]The donation in question, though denominatedinter vivos, is in truth onemortis causa; it is void because the essential requisites for its validity have not been complied with.WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 33202 dated June 30, 1995 as well as the Resolution denying reconsideration thereof and the Decision of the Regional Trial Court in Special Case No. 3311 are SET ASIDE.TheDeed of Donation Inter Vivos(Exh. A) executedby Aurora Virto Vda. De Montinola on December 11, 1979 in favor of Catalino M. Valderrama, Judy Cristina M. Valderrama and Jesus Antonio M. Valderrama is declared null and void.The Register of Deed of Roxas City is directed to cancel Transfer Certificate of Title No. T-16622, revive and reinstate Transfer Certificate of Title No. T-16105.SO ORDERED.Romero, Kapunan,andPurisima, JJ.,concur.

SECOND DIVISIONDANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and CONNIE ALUAD,Petitioners,- versus -ZENAIDO ALUAD,Respondent.G.R. No. 176943Present:QUISUMBING,J.,Chairperson,CARPIO MORALES,TINGA,VELASCO, JR., andBRION,JJ.Promulgated:October 17, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xD E C I S I O NCARPIO MORALES,J.: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 identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself.[1]OnNovember 14, 1981, Matilde executed a document entitled Deed of Donation of Real Property Inter Vivos[2](Deed of Donation) in favor of petitioners mother Maria[3]covering all the six lots which Matilde inherited from her husband Crispin.The Deed of Donation provided:That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria],the latter being adopted and hav[ing] been brought up by the former the DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto theDONEE the property above-described,to become effective upon the death of the DONOR, butin the eventthattheDONEE should die before the DONOR, the present donation shall be deemed rescindedand [of] no further force and effect; Provided, however, thatanytime 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 landherein donated.[4](Emphasis and underscoring supplied)OnSeptember 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matildes name.OnAugust 26, 1991, Matilde sold Lot No.676to respondent by a Deed of Absolute Sale of Real Property.[5]Subsequently or onJanuary 14, 1992, Matilde executed a last will and testament,[6]devisingLotNos. 675, 677, 682, and 680 to Maria, and her remaining properties including Lot No.674to respondent.Matilde died onJanuary 25, 1994, while Maria died on September 24 of the same year.[7]On August 21, 1995, Marias heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas City a Complaint,[8]for declaration and recovery of ownership and possession of Lot Nos.674and676, and damages against respondent, alleging:That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when defendant entered and possessed the two (2) parcels of land claiming as the adopted son of Crispin Aluad who refused to give back possession until Matilde Aluad died in [1994] and then retained the possession thereof up to and until the present time, thus, depriving the plaintiffs of the enjoyment of said parcels of land x x x;That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation from their deceased mother, MariaAluad who is the sole and only daughter of Matilde Aluad[.][9]To the complaint respondent alleged in his Answer.[10]ThatLot674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament of Matilde Aluad x x x whileLot676 was purchased by him from Matilde Aluad.These two lots are in his possession as true owners thereof.[11](Underscoring supplied)Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence[12]to which it annexed an Amended Complaint[13]which cited the donation of the six lots via Deed of Donation in favor of their mother Maria.Branch 15 of theRTCgranted the motion and admitted the Amended Complaint.[14]Respondent filed an Amended Answer[15]contending,inter alia,that the Deed of Donation is forged and falsified and petitioners change of theory showed that said document was not existing at the time they filed their complaint and was concocted by them after realizing that their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway be established by them;[16]and thatifever said document does exist, the same was already revoked by Matildewhen [she] exercised all acts of dominion over said properties until she sold Lot 676 to defendant and until her death with respect to the other lots without any opposition from Maria Aluad.[17]The trial court, by Decision[18]ofSeptember 20, 1996, held that Matilde could not have transmitted any right over Lot Nos.674and676to respondent, she having previously alienated them to Maria via the Deed of Donation.Thus it disposed:WHEREFORE, in view of the foregoing, judgment is hereby rendered:1.Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre;2.Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;3.Ordering the defendant to pay the plaintiffs:a.Thirty thousand pesos (P30,000.00) as attorneys fees;b.Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together with the interest thereof at the legal rate until fully paid;c.Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus legal interest thereof at the legal rate until fully paid; andd.The costs of the suit.Defendants counterclaim is ordered dismissed for lack of merit.SO ORDERED.[19]On petitioners motion, the trial court directed the issuance of a writ of execution pending appeal.[20]Possession of the subject lots appears to have in fact been taken by petitioners.By Decision[21]ofAugust 10, 2006, the Court of Appeals reversed the trial courts decision, it holding that the Deed of Donation was actually a donationmortis causa, notinter vivos, and as such it had to, but did not, comply with the formalities of a will.Thus, it found that the Deed of Donation was witnessed by only two witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code, reading: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.While the appellate court declared respondent as the rightful owner of Lot No.676,it did not so declare with respect to Lot No. 674, as Matildes last will and testament had not yet been probated.Thus the Court of Appeals disposed:WHEREFORE,finding the instant petition worthy of merit, the same is herebyGRANTEDand the Decision of theRegionalTrialCourtofRoxasCity, Branch 15, dated20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery of ownership and possession, and damages isREVERSEDandSET ASIDE.A new one is entered in its steaddeclaring defendant-appellant as the lawful owner ofLot[No.] 676of the Pilar Cadastre.Accordingly,plaintiffs-appellees are directed to return the possession of the said lot to the defendant-appellant.Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorneys fees and litigation expenses.Costs against plaintiffs-appellees.SO ORDERED.[22](Emphasis in the original;underscoring supplied)Their Motion for Reconsideration[23]having been denied,[24]petitioners filed the present Petition for Review,[25]contending that the Court of Appeals erredIX X X WHEN ITREVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15,RoxasCity) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS MOTHER IS IN FACT A DONATION MORTIS CAUSA.IIX X X WHEN IT RULED THATRESPONDENT IS THE RIGHTFUL OWNER OFLOTNO. 676 AS LOT BUYER ON THE BASIS OF A DEED OFSALEEXECUTED BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.IIIX X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OFLOTNO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED OWNER THEREOF.IVX X X WHEN IT HELD THAT THE ISSUANCE OF AWRIT OF EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEYS FEES AND COST[S] OF SUIT.[26]As did the appellate court, the Court finds the donation to petitioners mother one ofmortis causa,it having the following characteristics:(1)It conveys no title or ownership to the transfereebeforethe 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)Thatbefore the death of the transferor, the transfer should be revocableby 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)Thatthe transfer should be void if the transferor should survive the transferee.[27](Emphasis and underscoring supplied)The phrase in the earlier-quoted Deed of Donation to become effective upon the death of the DONOR admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to petitioners mother during her (Matildes) lifetime.[28]The statement in the Deed of Donation readinganytime during the lifetime of the DONORor anyone of them who should survive, they coulduse, encumber or even dispose of any or even all the parcels of land herein donated[29]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.[30]The phrase in the Deed of Donation oranyone of themwho 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.Petitioners themselves concede that such phrase does not refer to the donee, thus:x x x [I]t is well to point out that the last provision (sentence) in the disputed paragraphshould only refer to Matilde Aluad, the donor, because she was the only surviving spouse at the time the donation was executedon 14 November 1981, as her husband Crispin Aluad [] had long been dead as early as 1975.[31]The trial court, in holding that the donation wasinter vivos, reasoned:x x x The donation in question is subject to a resolutory term or period when the donor provides in the aforequoted provisions, but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect.When the donor provides that should the DONEE xxx die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect the logical construction thereof is thatafter the execution of the subject donation, the same became effective immediately and shall be deemed rescinded and [of] no further force and effect upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur before that of the donor.Understandably, the arrival of this resolutory term or period cannot rescind and render of no further force and effect a donation which has never become effective, because, certainly what donation is there to be rescinded and rendered of no further force and effect upon the arrival of said resolutory term or period if there was no donation which was already effective at the time when the donee died?[32](Underscoring supplied)A similarratioin a case had been brushed aside by this Court, however, thus:x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the donation asinter vivos.Petitioners arguments are bereft of merit.[33]x x x xx x x The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the petitioners predecease [the donor] Conchita Cabatingan.As stated inReyes v. Mosqueda,one of the decisive characteristics of a donationmortis causais that the transfer should be considered void if the donor should survive the donee.This is exactly what Cabatingan provided for in her donations.If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated to the donee or independently of, and not by reason of her death, she would not have expressed such proviso in the subject deeds.[34](Underscoring supplied)As the Court of Appeals observed, x x x [t]hat the donation ismortis causais fortified by Matildes acts of possession as she continued to pay the taxes for the said properties which remained under her name; appropriated the produce; and applied for free patents for which OCTs were issued under her name.[35]The donation being thenmortis causa, the formalities of a will should have been observed[36]but they were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code.[37]Further, the witnesses did not even sign the attestation clause[38]the execution of which clause is a requirementseparatefrom the subscription of the will and the affixing of signatures on the left-hand margins of the pages of the will.So the Court has emphasized:x x x Article 805 particularlysegregates the requirement that the instrumental witnesses sign each page of the will from the requisite that the will be attested and subscribedby [the instrumental witnesses].The respective intents behind these two classes of signature[s] are distinct from each other.The signatures on the left-hand corner of every page signify, among others, that thewitnesses are aware that the page they are signing forms part of the will.On the other hand, the signatures to the attestation clause establish that thewitnesses are referring to the statements contained in the attestation clause itself.Indeed, the attestation clause is separate and apart from the disposition of the will.An unsigned attestation clause results in an unattested will.Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal.x x xIt is the witnesses, and not the testator,who are requiredunder Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the attestation clause.[39](Emphasis and underscoring supplied)Furthermore, the witnesses did not acknowledge the will before the notary public,[40]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.[41]The Deed of Donation which is, as already discussed, one ofmortis causa,not having followed theformalities of a will, it is void and transmitted no right to petitioners mother.But even assumingarguendothat the formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria.[42]Matilde thus validly disposed of Lot No. 674 to respondent by her last will and testament, subject of course to the qualification that her (Matildes) will must be probated.With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991.Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is indeedmortis causa,hence, Matilde could devise it to respondent, the lot should nevertheless have been awarded to them because they had acquired it by acquisitive prescription, they having been in continuous, uninterrupted, adverse, open, and public possession of it in good faith and in the concept of an owner since 1978.[43]Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having laid their claim on the basis of inheritance from their mother.As a general rule, points of law, theories, and issues not brought to the attention of the trial court cannot be raised for the first time on appeal.[44]For a contrary rule would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court.[45]WHEREFORE, the petition isDENIED.SO ORDERED.

FIRST DIVISIONMANUEL L. LEE,A.C.No. 5281Complainant,Present:PUNO,C.J.,Chairperson,SANDOVAL-GUTIERREZ,- v e r s u s -CORONA,AZCUNA andLEONARDO-DE CASTRO,JJ.ATTY. REGINO B. TAMBAGO,Respondent.Promulgated:February 12, 2008x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xR E S O L U T I O NCORONA,J.:In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will and testament.In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo, the purported witnesses to its execution.In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant.The will was purportedly executed and acknowledged before respondent on June 30, 1965.[1]Complainant, however, pointed out that the residence certificate[2]of the testator noted in the acknowledgment of the will was dated January 5, 1962.[3]Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation[4](containing his purported genuine signature). Complainant averred that the signatures of his deceased father in the will and in the deed of donation were in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s].[5]Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied from their respective voters affidavits.Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this connection, the certification of the chief of the archives division dated September 19, 1999 stated:Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in thisOffice[s] files.[6]Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious. He alleged that complainant was not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by respondent per affidavit[7]of Gloria Nebato, common-law wife of Vicente Lee, Sr. and corroborated by the joint affidavit[8]of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. xxx.[9]Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant against him in the Office of the Ombudsman did not prosper.Respondent did not dispute complainants contention that no copy of the will was on file in the archives division of the NCCA. He claimed that no copy of the contested will could be found there because none was filed.Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first file an action for the declaration of nullity of the will and demand his share in the inheritance.In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation.[10]In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement of legal ethics, particularly Canon 1[11]and Rule 1.01[12]of the Code of Professional Responsibility (CPR).[13]Thus, the investigating commissioner of the IBP Commission on Bar Discipline recommended the suspension of respondent for a period of three months.The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED,with modification,the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondents failure to comply with the laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice of law for one year and Respondents notarial commission isRevoked and Disqualifiedfromreappointment as Notary Public for two (2) years.[14]We affirm with modification.A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.[15]A will may either be notarial or holographic.The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and testaments and to guarantee their truth and authenticity.[16]A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.[17]The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void.[18]This is in consonance with the rule that acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses.[19]The importance of this requirement is highlighted by the fact that it was segregated from the other requirements under Article 805 and embodied in a distinct and separate provision.[20]An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory actually declares to the notary public that the same is his or her own free act and deed.[21]The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testators wishes long after his demise and (2) to assure that his estate is administered in the manner that he intends it to be done.A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testators old residence certificate in the same acknowledgment was a clear breach of the law. These omissions by respondent invalidated the will.As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and those of notarization. As we held inSantiago v. Rafanan:[22]The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before him had presented the proper residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification.These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents.[23]A notary public, especially a lawyer,[24]is bound to strictly observe these elementary requirements.The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument:Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract, deed, or other document acknowledged before a notary public shall have certified thereon that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid.[25]The importance of such act was further reiterated by Section 6 of the Residence Tax Act[26]which stated:When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public xxx it shall be the duty of such person xxx with whom such transaction is had or business done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person xxx.In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the exhibition of the residence certificates of Noynay and Grajo.On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives division, Article 806 provides:Art. 806. Every will must be acknowledged before a notary public by the testator and the witness.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.(emphasis supplied)Respondents failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause for disciplinary action.Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial register. The old Notarial Law required the entry of the following matters in the notarial register, in chronological order:1.nature of each instrument executed, sworn to, or acknowledged before him;2.person executing, swearing to, or acknowledging the instrument;3.witnesses, if any, to the signature;4.date of execution, oath, or acknowledgment of the instrument;5.fees collected by him for his services as notary;6.give each entry a consecutive number; and7.if the instrument is a contract, a brief description of the substance of the instrument.[27]In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his notarial register. To reinforce his claim, he presented a photocopy of a certification[28]stating that the archives division had no copy of the affidavit of Bartolome Ramirez.A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The proponent must first prove the existence and cause of the unavailability of the original,[29]otherwise, the evidence presented will not be admitted. Thus, the photocopy of respondents notarial register was not admissible as evidence of the entry of the execution of the will because it failed to comply with the requirements for the admissibility of secondary evidence.In the same vein, respondents attempt to controvert the certification dated September 21, 1999[30]must fail. Not only did he present a mere photocopy of the certification dated March 15, 2000;[31]its contents did not squarely prove the fact of entry of the contested will in his notarial register.Notaries public must observe with utmost care[32]and utmost fidelity the basic requirements in the performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.[33]Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that the testator and the witnesses, as in this case, are no longer alive to identify the instrument and to confirm its contents.[34]Accordingly, respondent must be held accountable for his acts. The validity of the will was seriously compromised as a consequence of his breach of duty.[35]In this connection, Section 249 of the old Notarial Law provided:Grounds for revocation of commission. The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for the revocation of his commission:xxxxxxxxx(b)The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law.xxxxxxxxx(f)The failure of the notary to make the proper notation regarding cedula certificates.[36]These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court[37]and Canon 1[38]and Rule 1.01[39]of the CPR.The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the laws of the land.[40]For a lawyer is the servant of the law and belongs to a profession to which society has entrusted the administration of law and the dispensation of justice.[41]While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a lawyer should moreover make himself an example for others to emulate.[42]Being a lawyer, he is supposed to be a model in the community in so far as respect for the law is concerned.[43]The practice of law is a privilege burdened with conditions.[44]A breach of these conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or acknowledgment that he has engaged in professional misconduct.[45]These sanctions meted out to errant lawyers include disbarment, suspension and reprimand.Disbarment is the most severe form of disciplinary sanction.[46]Wehave held in a number of cases that the power to disbar must be exercised with great caution[47]and should not be decreed if any punishment less severe such as reprimand, suspension, or fine will accomplish the end desired.[48]The rule then is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court.[49]Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his claims that he exercised his duties as Notary Public with due care and with due regard to the provision of existing law and had complied with the elementary formalities in the performance of his duties xxx, we find that he acted very irresponsibly in notarizing the will in question. Such recklessness warrants the less severe punishment of suspension from the practice of law.It is, as well, a sufficient basis for the revocation of his commission[50]and his perpetual disqualification to be commissioned as a notary public.[51]WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.Atty. Regino B. Tambago is herebySUSPENDEDfrom the practice of law for one year and his notarial commissionREVOKED.Because he has not lived up to the trustworthiness expected of him as a notary public and as an officer of the court, he isPERPETUALLYDISQUALIFIEDfrom reappointment as a notary public.Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as made part of the personal records of respondent.SO ORDERED.

SECOND DIVISIONPAZ SAMANIEGO-CELADA,Petitioner,- versus -G.R. No. 145545Present:QUISUMBING,J., Chairperson,CARPIO MORALES,TINGA,VELASCO, JR., andBRION,JJ.

LUCIA D. ABENA,Respondent.Promulgated:June 30, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xDECISIONQUISUMBING,J.:This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the Decision[1]datedOctober 13, 2000of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the Decision[2]datedMarch 2, 1993of the Regional Trial Court (RTC), Branch 66,MakatiCity.The RTC had declared the last will and testament of Margarita S. Mayores probated and designated respondent Lucia D. Abena as the executor of her will.It also ordered the issuance of letters testamentary in favor of respondent.The facts are as follows:Petitioner PazSamaniego-Celadawas the first cousin of decedent Margarita S.Mayores(Margarita) while respondent was the decedents lifelong companion since 1929.OnApril 27, 1987, Margarita died single and withoutany ascendingnor descending heirs as her parents, grandparents and siblings predeceased her.She was survived by her first cousins Catalina Samaniego-Bombay,ManuelitaSamaniegoSajonia,FelizaSamaniego, and petitioner.Before her death, Margarita executed a Last Will and Testament[3]on February 2, 1987 where she bequeathed one-half of her undivided share of a real property located at Singalong Manila, consisting of 209.8 square meters, and covered by Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third portion each.She likewise bequeathed one-half of her undivided share of a real property located atSan AntonioVillage,Makati, consisting of 225 square meters, and covered by TCT No. 68920 to respondent,IsabeloM. Abena, and Amanda M. Abena in equal shares or one-third portion each.Margarita also left all her personal properties to respondent whom she likewise designated as sole executor of her will.OnAugust 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita before the RTC of Makati. The case was docketed as SP Proc. No.M-1531.OnOctober 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of Makati.The case was docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No.M-1531.OnMarch 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated and respondent as the executor of the will.The dispositive portion of the decision states:In view of the foregoing, judgment is hereby rendered:1)declaring the will as probated;2)declaring LuciaAbenaas the executor of the will who will serve as such without a bond as stated in paragraph VI of the probated will;3)orderingthe issuance of letters testamentary in favor of LuciaAbena.So ordered.[4]Petitioner appealed the RTC decision to the Court of Appeals.But the Court of Appeals, in a decision datedOctober 13, 2000, affirmedin totothe RTC ruling.The dispositive portion of the Court of Appeals decision states:WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is herebyORDERED DISMISSEDand the appealed Decision of the trial courtAFFIRMEDINTOTO, with cost tooppositors-appellants.SO ORDERED.[5]Hence, the instant petition citing the following issues:I.WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED BY LAW;II.WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE WILL BECAUSE IT WAS PROCURED THROUGH UNDUE INFLUENCE ANDPRESSURE[;] ANDIII.WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER, HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITAS. MAYORESAND IN NOT ISSUING LETTERS OF ADMINISTRATION TO HER.[6]Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for failure to comply with the formalities required by law, (2) whether said court erred in not declaring the will invalid because it was procured through undue influence and pressure, and (3) whether it erred in not declaring petitioner and her siblings as the legal heirs of Margarita, and in not issuing letters of administration to petitioner.Petitioner, in her Memorandum,[7]argues that Margaritas will failed to comply with the formalities required under Article 805[8]of the Civil Code because the will was not signed by the testator in the presence of the instrumental witnesses and in the presence of one another.She also argues that the signatures of the testator on pages A, B, and C of the will are not the same or similar, indicating that they were not signed on the same day.She further argues that the will was procured through undue influence and pressure because at the time of execution of the will, Margarita was weak, sickly, jobless and entirely dependent upon respondent and her nephews for support, and these alleged handicaps allegedly affected her freedom and willpower to decide on her own.Petitioner thus concludes that Margaritas total dependence on respondent and her nephews compelled her to sign the will.Petitioner likewise argues that the Court of Appeals should have declared her and her siblings as the legal heirs of Margarita since they are her only living collateral relatives in accordance with Articles 1009[9]and 1010[10]of the Civil Code.Respondent, for her part, argues in her Memorandum[11]that the petition for review raises questions of fact, not of law and as arule,findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal to the Supreme Court.She also points out that although the Court of Appeals at the outset opined there was no compelling reason to review the petition, the Court of Appeals proceeded to tackle the assigned errors and rule that the will was validly executed, sustaining the findings of the trial court that the formalities required by law were duly complied with.The Court of Appeals also concurred with the findings of the trial court that the testator, Margarita, was of sound mind when she executed the will.After careful consideration of the parties contentions, we rule in favor of respondent.We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject of a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure.The issues that petitioner is raising nowi.e., whether or not the will was signed by the testator in the presence of the witnesses and of one another, whether or not the signatures of the witnesses on the pages of the will were signed on the same day, and whether or not undue influence was exerted upon the testator which compelled her to sign the will, are all questions of fact.This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of Civil Procedure.Section 1[12]of Rule 45 limits this Courts review to questions of law only.Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial evidence, the findings of fact of the Court of Appeals are conclusive and binding on the parties and are not reviewable by this Court, unless the case falls under any of the following recognized exceptions:(1)When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;(2)When the inference made is manifestly mistaken, absurd or impossible;(3)Where there is a grave abuse of discretion;(4)When the judgment is based on a misapprehension of facts;(5)When the findings of fact are conflicting;(6)When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;(7)When the findings are contrary to those of the trial court;(8)When the findings of fact are conclusions without citation of specific evidence on which they are based;(9)When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; and(10)When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.[13]We find that this case does not involve any of the abovementioned exceptions.Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioners arguments lack basis.The RTC correctly held:With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator [MargaritaMayores] was not mentally capable of making a will at the time of the execution thereof, the same is without merit.The oppositors failed to establish, by preponderance of evidence, said allegation and contradict the presumption that the testator was of sound mind (See Article 800 of the Civil Code).In fact, witness for the oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to the testator months before her death, testified that Margarita Mayores could engage in a normal conversation and he even stated that the illness of the testator does not warrant hospitalization. Not one of the oppositors witnesses has mentioned any instance that they observed act/s of the testator during her lifetime that could be construed as a manifestation of mental incapacity.The testator may be admitted to be physically weak but it does not necessarily follow that she was not of sound mind.[The] testimonies of contestant witnesses are pure aforethought.Anent the contestants submission that the will is fatally defective for the reason that its attestation clause states that the will is composed of three (3) pages while in truth and in fact, the will consists of two (2) pages only because the attestation is not a part of the notarial will, the same is not accurate.While it is true that the attestation clause is not a part of the will, the court, after examining the totality of the will, is of the considered opinion that error in the number of pages of the will as stated in the attestation clause is not material to invalidate the subject will.It must be noted that the subject instrument is consecutively lettered with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some of the pages.The error must have been brought about by the honest belief that the will is the whole instrument consisting of three (3) pages inclusive of the attestation clause and the acknowledgement.The position of the court is in consonance with the doctrine of liberal interpretation enunciated inArticle 809 of the Civil Code which reads:In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.The court also rejects the contention of the oppositors that the signatures of the testator were affixed on different occasions based on their observation that the signature on the first page is allegedly different in size, texture and appearance as compared with the signatures in the succeeding pages.After examination of the signatures, the court does not share the same observation as the oppositors.The picture (Exhibit H-3) shows that the testator was affixing her signature in the presence of the instrumental witnesses and the notary.There is no evidence to show that the first signature was procured earlier thanFebruary 2, 1987.Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the subject will.In fact, the picture reveals that the testator was in a good mood and smiling with the other witnesses while executing the subject will (See Exhibit H).In fine, the court finds that the testator was mentally capable of making the will at the time of its execution, that the notarial will presented to the court is the same notarial will that was executed and that all the formal requirements (See Article 805 of the Civil Code) in the execution of a will have been substantially complied with in the subject notarial will.[14](Emphasis supplied.)Thus, we find no reason to disturb the abovementioned findings of the RTC.Since, petitioner and her siblings are not compulsory heirs of the decedent under Article 887[15]of the Civil Code and as the decedent validly disposed of her properties in a will duly executed and probated, petitioner has no legal right to claim any part of the decedents estate.WHEREFORE, the petition isDENIED.The assailed Decision datedOctober 13, 2000of the Court of Appeals in CA-G.R. CV No. 41756 isAFFIRMED.Costs against petitioner.SO ORDERED.

Republic of the PhilippinesSUPREME COURTManilaEN BANCG.R. No. L-23678 June 6, 1967TESTATE ESTATE OF AMOS G. BELLIS, deceased.PEOPLE'S BANK and TRUST COMPANY,executor.MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS,oppositors-appellants,vs.EDWARD A. BELLIS, ET AL.,heirs-appellees.Vicente R. Macasaet and Jose D. Villena for oppositors appellants.Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.J. R. Balonkita for appellee People's Bank & Trust Company.Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.BENGZON, J.P.,J.:This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1wph1.tThe facts of the case are as follows:Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.tSubsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies.On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported,inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages.On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased.Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law.In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court inAznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code.Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found.ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congressdeletedthe phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave,inter alia, theamountof successional rights, to the decedent's national law. Specific provisions must prevail over general ones.Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled inMiciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern.The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.Wherefore, the order of the probate court is hereby affirmedin toto, with costs against appellants. So ordered.Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

Republic of the PhilippinesCongress of the PhilippinesMetro ManilaEighth Congress

Republic Act No. 7170 January 7, 1992AN ACT AUTHORIZING THE LEGACY OR DONATION OF ALL OR PART OF A HUMAN BODY AFTER DEATH FOR SPECIFIED PURPOSESBe it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::Section 1.Title. This Act shall be known as the"Organ Donation Act of 1991".Section 2.Definition of Terms. As used in this Act the following terms shall mean:(a) "Organ Bank Storage Facility" - a facility licensed, accredited or approved under the law for storage of human bodies or parts thereof.(b) "Decedent" - a deceased individual, and includes a still-born infant or fetus.(c) "Testator" - an individual who makes a legacy of all or part of his body.(d) "Donor" - an individual authorized under this Act to donate all or part of the body of a decedent.1awphilalf(e) "Hospital" - a hospital licensed, accredited or approval under the law, and includes, a hospital operated by the Government.(f) "Part" - includes transplantable organs, tissues, eyes, bones, arteries, blood, other fluids and other portions of the human body.(g) "Person" - an individual, corporation, estate, trust, partnership, association, the Government or any of its subdivisions, agencies or instrumentalities, including government-owned or -controlled corporations; or any other legal entity.(h) "Physician" or "Surgeon" - a physician or surgeon licensed or authorized to practice medicine under the laws of the Republic of the Philippines.(i) "Immediate Family" of the decedent - the persons enumerated in Section 4(a) of this Act.(j) "Death" - the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the brain stem. A person shall be medically and legally dead if either:1awphilalf(1) In the opinion of the attending physician, based on the acceptable standards of medical practice, there is an absence of natural respiratory and cardiac functions and, attempts at resuscitation would not be successful in restoring those functions. In this case, death shall be deemed to have occurred at the time these functions ceased; or(2) In the opinion of the consulting physician, concurred in by the attending physician, that on the basis of acceptable standards of medical practice, there is an irreversible cessation of all brain functions; and considering the absence of such functions, further attempts at resuscitation or continued supportive maintenance would not be successful in resorting such natural functions. In this case, death shall be deemed to have occurred at the time when these conditions first appeared.The death of the person shall be determined in accordance with the acceptable standards of medical practice and shall be diagnosed separately by the attending physician and another consulting physician, both of whom must be appropriately qualified and suitably experienced in the care of such parties. The death shall be recorded in the patient's medical record.Section 3.Person Who May Execute A Legacy. Any individual, at least eighteen (18) years of age and of sound mind, may give by way of legacy, to take effect after his death, all or part of his body for any purpose specified in Section 6 hereof.Section 4.Person Who May Execute a Donation.(a) Any of the following, person, in the order of property stated hereunder, in the absence of actual notice of contrary intentions by the decedent or actual notice of opposition by a member of the immediate family of the decedent, may donate all or any part of the decedent's body for any purpose specified in Section 6 hereof:(1) Spouse;(2) Son or daughter of legal age;(3) Either parent;(4) Brother or sister of legal age; or(5) Guardian over the person of the decedent at the time of his death.(b) The persons authorized by sub-section (a) of this Section may make the donation after or immediately before death.Section 5.Examination of Human Body or Part Thereof. A legacy of donation of all or part of a human body authorizes any examination necessary to assure medical acceptability of the legacy or donation for the purpose(s) intended.For purposes of this Act, an autopsy shall be conducted on the cadaver of accident, trauma, or other medico-legal cases immediately after the pronouncement of death, to determine qualified and healthy human organs for transplantation and/or in furtherance of medical science.Section 6.Persons Who May Become Legatees or Donees. The following persons may become legatees or donees of human bodies or parts thereof for any of the purposes stated hereunder:(a) Any hospital, physician or surgeon - For medical or dental education, research, advancement of medical or dental science, therapy or transplantation;(b) Any accredited medical or dental school, college or university - For education, research, advancement of medical or dental science, or therapy;(c) Any organ bank storage facility - For medical or dental education, research, therapy, or transplantation; and(d) Any specified individual - For therapy or transplantation needed by him.Section 7.Duty of Hospitals. A hospital authorized to receive organ donations or to conduct transplantation shall train qualified personnel and their staff to handle the task of introducing the organ donation program in a humane and delicate manner to the relatives of the donor-decedent enumerated in Section 4 hereof. The hospital shall accomplish the necessary form or document as proof of compliance with the above requirement.Section 8.Manner of Executing a Legacy.(a) Legacy of all or part of the human body under Section 3 hereof may be made by will. The legacy becomes effective upon the death of the testator without waiting for probate of the will. If the will is not probated, or if it is declared invalid for testamentary purposes, the legacy, to the extent that it was executed in good faith, is nevertheless valid and effective.(b) A legacy of all or part of the human body under Section 3 hereof may also be made in any document other than a will. The legacy becomes effective upon death of the testator and shall be respected by and binding upon his executor or administrator, heirs, assigns, successors-in-interest and all members of the family. The document, which may be a card or any paper designed to be carried on a person, must be signed by the testator in the presence of two witnesses who must sign the document in his presence. If the testator cannot sign, the document may be signed for him at his discretion and in his presence, in the presence of two witnesses who must, likewise, sign the document in the presence of the testator. Delivery of the document of legacy during the testator's lifetime is not necessary to make the legacy valid.(c) The legacy may be made to a specified legatee or without specifying a legatee. If the legacy is made to a specified legatee who is not available at the time and place of the testator's death, the attending physician or surgeon, in the absence of any expressed indication that the testator desired otherwise, may accept the legacy as legatee. If the legacy does not specify a legatee, the legacy may be accepted by the attending physician or surgeon as legatee upon or following the testator's death. The physician who becomes a legatee under this subsection shall not participate in the procedures for removing or transplanting a part or parts of the body of the decedent.(d) The testator may designate in his will, card or other document, the surgeon or physician who will carry out the appropriate procedures. In the absence of a designation, or if the designee is not available, the legatee or other persons authorized to accept the legacy may authorize any surgeon or physician for the purpose.Section 9.Manner of Executing a Donation. Any donation by a person authorized under subsection (a) of Section 4 hereof shall be sufficient if it complies with the formalities of a donation of a movable property.In the absence of any of the persons specified under Section 4 hereof and in the absence of any document of organ donation, the physician in charge of the patient, the head of the hospital or a designated officer of the hospital who has custody of the body of the deceased classified as accident, trauma, or other medico-legal cases, may authorize in a public document the removal from such body for the purpose of transplantation of the organ to the body of a living person: Provided, That the physician, head of hospital or officer designated by the hospital for this purpose has exerted reasonable efforts, within forty-eight (48) hours, to locate the nearest relative listed in Section 4 hereof or guardian of the decedent at the time of death.In all donations, the death of a person from whose body an organ will be removed after his death for the purpose of transplantation to a living person, shall be diagnosed separately and certified by two (2) qualified physicians neither of whom should be:(a) A member of the team of medical practitioners who will effect the removal of the organ from the body; nor(b) The physician attending to the receipt of the organ to be removed; nor(c) The head of hospital or the designated officer authorizing the removal of the organ.Section 10.Person(s) Authorized to Remove Transplantable Organs. Only authorized medical practitioners in a hospital shall remove and/or transplant any organ which is authorized to be removed and/or transplanted pursuant to Section 5 hereof.Section 11.Delivery of Document of Legacy or Donation. If the legacy or donation is made to a specified legatee or donee, the will, card or other document, or an executed copy thereof, may be delivered by the testator or donor, or is authorized representative, to the legatee or donee to expedite the appropriate procedures immediately after death. The will, card or other document, or an executed copy thereof, may be deposited in any hospital or organ bank storage facility that accepts it for safekeeping or for facilitation or procedures after death. On the request of any interested party upon or after the testator's death, the person in possession shall produce the document of legacy or donation for verification.Section 12.Amendment or Revocation of Legacy or Donation.a) If he will, card or other document, or an executed copy thereof, has been delivered to a specific legatee or donee, the testator or donor may amend or revoke the legacy or donation either by:(1) The execution and delivery to the legatee or donee of a signed statement to that effect; or(2) An oral statement to that effect made in the presence of two other persons and communicated to the legatee or donee; or(3) A statement to that effect during a terminal illness or injury addressed to an attending physician and communicated to the legatee or donee; or(4) A signed card or document to that effect found on the person or effects of the testator or donor.(b) Any will, card or other document, or an executed copy thereof, which has not been delivered to the legatee or donee may be revoked by the testator or donor in the manner provided in subsection (a) of this Section or by destruction, cancellation or mutilation of the document and all executed copies thereof.Any legacy made by a will may also be amended or revoked in the manner provided for amendment or revocation of wills, or as provided in subsection (a) of this Section.Section 13.Rights and Duties After Death.(a) The legatee or donee may accept or reject the legacy or donation as the case may be. If the legacy of donation is of a part of the body, the legatee or donee, upon the death of the testator and prior to embalming, shall effect the removal of the part, avoiding unnecessary mutilation. After removal of the part, custody of the remainder of the body vests in the surviving spouse, next of kin or other persons under obligation to dispose of the body of the decedent.(b) Any person who acts in good faith in accordance with the terms of this Act shall not be liable for damages in any civil action or subject to prosecution in any criminal proceeding of this Act.Section 14.International Sharing of Human Organs or Tissues. Sharing of human organs or tissues shall be made only through exchange programs duly approved by the Department of Health: Provided, That foreign organ or tissue bank storage facilities and similar establishments grant reciprocal rights to their Philippine counterparts to draw organs or tissues at any time.Section 15.Information Drive. In order that the public will obtain the maximum benefits from this Act, the Department of Health, in cooperation with institutions, such as the National Kidney Institute, civic and non-government health organizations and other health related agencies, involved in the donation and transplantation of human organs, shall undertake a public information program.The Secretary of Health shall endeavor to persuade all health professionals, both government and private, to make an appeal for human organ donat