[No. 5480. March 21, 1910.

]
RICARDO LOPEZ ET AL., plaintiff s and
appellants, vs. ADOLFO OLBES, executor of the estate ofMartina Lopez, def
endant and appellee.

1. 1.ESTATES; DONATION INTER VlVOS; TRANSMISSION OF OWNERSHIP.—By

virtue of a donation inter vivos,wherein the requirements prescribed by law for its
validity and force have been complied with, the dominion over the thing donated is
transmitted to the donee, who, by operation of the law and in fact, acquires the
ownership of the same, as customarily occurs in all contracts of transfer of dominion.

1. 2.ID.; ID.; QUESTIONS TO BE DECIDED AT REGULAR TRIAL; DEMURRER.—

Questions arising as to the nullity or irregular nature of a donation, and which affect
its validity and force, or some excess which may require reduction, must be argued
and decided in accordance with law at a regular trial and by a final judgment, and
not by a ruling upon a demurrer.

1. 3.ID.; ID.; QUESTIONS NOT TO BE DECIDED IN PROBATE PROCEEDINGS.—

Neither shall the questions mentioned be decided in an incidental trial concerning.
testate or intestate proceedings, for the reason that the thing donated is no longer
the property of the deceased donor, nor does it form a part of the hereditary estate,
but belongs to the donee until by executory judgment the donation be declared null
and irregular.

1. 4.ID.; ID.; MATTERS TO BE DECIDED AT REGULAR TRIAL; DEMURRER.—The

question as to whether the provisions of articles 634, 636, 643, and others of the Civil
Code, were observed or violated, shall be argued and examined in a regular trial and
decided, according to the. allegations adduced and proved, by final judgment, and
not upon demurrer.

1. 5.ID.; ID.; STATUS OF DONEE INTER VIVOS.—In section 704 of the Code of Civil
Procedure, according to the English text, which, in case of disagreement with the
Spanish, is the one that must prevail, as prescribed by Act No, 63 of the Philippine
Commission, the donee inter vivos, who has a status different from the heirs and the
devisees, is not comprised among the latter.

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VOL. 15, MARCH 21, 1910. 541

Lopez vs. Olbes.

APPEAL from various orders of the Court of First Instance of Albay. Trent, J.
The facts are stated in theopinion of the court.
C. M. Villareal, for appellants.
Manly & McMahon, for appellees.

TORRES, J.:

On October 13, 1908, Ricardo Lopez, in his own behalf, Josefina Lopez y Jaucian
and her husband, Ceferino M. Villareal, and Encarnacion, Jose, and Amparo Lopez y
Jaucian brought suit
against AdolfoOlbes, the testamentary executor of the deceased Martina Lope
z, alleging in their complaint that thelatter, on the 14th of May, 1907, executed a
public instrument before thenotary Felix Samson whereby she donated
to theplaintiffs a parcel of hemp land situated at the place called Ali,
in the pueblo ofGuinobatan, Albay, containing an area of 162 hectares, 2 ares, and
50 centares, the boundaries ofwhich are expressed in thesaid instrument; that this
property was inscribed in the registry of property ofAlbay
in the name of thedeceased Antonio Lopez, the predecessor in
interest of the said Martina Lopez, also deceased; that, by virtue of the said
donation, Ricardo Lopez was entitled to the usufruct of the real property
concerned, and that the other plaintiffs, Josefina, Encarnacion, Jose, and Amparo,
all surnamed Lopez y Jaucian, were theequal owners thereof in fee simple; that
on the same date, May 14, 1907, the said donation was accepted
by Ricardo Lopez on his own behalf and in representation of the minor children
above designated, and the donor, MartinaLopez, on the same date, was duly
notified of the said acceptance; that the said Martina Lopez was thelegitimate
mother of theplaintiff Ricardo Lopez, and the other plaintiffs, Josefina,
Encarnacion, Jose, and Amparo, the legitimate children of Ricardo Lopez, were
her legitimate grandchildren;
that AdolfoOlbes was the testamentary executor duly appointed by order issued
by the Court ofFirst Instance, on April 22, 1908, in proceedings No. 918, entitled:
In the matter of the estate of thedeceased Martina Lopez;
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542 PHILIPPINE REPORTS ANNOTATED

Lopez vs. Olbes.

that the said Olbes, as executor, claimed to have rights of ownership and
possession to theaforementioned land adverse to those then held by the plaintiffs,
inasmuch as the said estate still continued to belong
to thedeceased Martina Lopezand was then in charge of a trustee by virtue of an
agreement had
between theattorneys of the executorand the plaintiff RicardoLopez, on April
18, and ofthe order issued by thecourt on the same date in the aforesaid probate
proceedings; and thecomplaint concluded by asking that a guardian ad litem be
appointed, who should be the said RicardoLopez, to represent his minor children,
also plaintiffs; that judgment be rendered in the latter's favor and
against thedefendant for theownership and possession of the said land, and
that the trusteeship over thesame be declared dissolved and the trustee be ordered
to render an accounting, and that the amounts or products which he might have in
his possession be adjudicated to the plaintiffs, with the costs against thedefendant.
The defendant, having been summoned, filed a demurrer in writing, on November
23, 1908, alleging that the facts set forth in the complaint did not constitute a
right of action, inasmuch as the plaintiffs, as the heirs or donees, could not
maintain any suit against the testamentary executor to recover thetitle or
possession of theland so long as the court had not adjudicated theestate to them or
until thetime allowed for paying thedebts should have expired, unless they be given
possession of the said land by the executor.
Counsel for the plaintiffs, in answer to the demurrer, set forth
that the terms ofsection 704 of the Code ofCivil Procedure do not comprise donees,
but merely heirs or devisees, because, although in thefirst part of the said
section the word donatario (donee) appears, the subsequent paragraphs contain
only thewords heredero 6 legatario(heir or devisee), it appearing to be evident
that the Spanish translation ofthe said section is not correct; the English text
thereof is given wherein theword "donee" does not
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VOL. 15, MARCH 21, 1910. 543

Lopez vs. Olbes.

appear, only the words "heir" and "devisee," which mean heredero and legatario; this
is apparently confirmed by theprecedents of existing legislation, quoted by counsel,
and therefore theprohibition contained in theaforesaid section of theCode of Civil
Procedure only refers to the heir or devisee, and in nowise to the donee, whose title
is derived from a donation inter vivos, thelegal effects of which are those of a real
contract which is binding on thedonor from the moment ofits acceptance;
that thedonations which are to become effective inter vivosare governed
by theprovisions concerning contracts and obligations (art. 621, Civil Code), and
that the rule that theplaintiffs' right can not be enforced in an ordinary action, but
in probate proceedings only, solely refers to the questions
involving the status of heirs and their share in theinheritance and not to that
class of actions provided for in section 699 of the Code ofCivil Procedure, counsel
citing decisions rendered in suits against testamentary executors or administrators,
as the case of Hijos de I. de la Rama vs. The Estate ofBenedicto (5 Phil. Rep., 512),
and that of Sunico vs.Chuidian (9 Phil. Rep., 625) ; and for all the foregoing
reasons the plaintiffs requested that thedemurrer interposed by thedefendant be
dismissed and that he be ordered to answer the complaint within the period allowed
by law.
 The demurrer having been heard, the judge, on February 26, 1909, issued an
order sustaining the said demurrer and directing that the same, as an incidental
proceeding, be attached to the record of the probate
proceedings of the deceased Martina Lopez.
By virtue of the petition presented by the plaintiffs asking for final judgment
and the appointment ofRicardo Lopez as guardian ad litem of the other plaintiff
minors, the judge issued an order on March 6, 1909, amending thepreceding one by
admitting the demurrer authorizing the plaintiff to amend his complaint,
with theunderstanding that should he not file an amended complaint
within the time allowed by law the case would be dismissed, with the costs against
544

544 PHILIPPINE REPORTS ANNOTATED

Lopez vs. Olbes. ,

the plaintiff; this order was attached to the record ofthe said probate proceedings,
and he appointed Ricardo Lopezguardian ad litem to represent the minor
plaintiffs in the litigation.
On March 9, 1909, theplaintiffs filed a written amended complaint, a
reproduction of theprevious one, although this was done by Ricardo Lopezon his
own behalf and in representation of his minor children, also plaintiffs, as their
guardian ad litem, and by Ceferino M. Villareal as the husband of the plaintiff
Josefina Lopez.
The defendant, being informed of the foregoing amended complaint, again
demurred to the same on the grounds that the facts therein alleged did not
constitute a right of action, inasmuch as in theamended complaint, which is a
reproduction of theprevious one, no new allegation was made that might
supply the deficiency of right of action on thepart of the plaintiffs in their
endeavor to obtain a reversal of the judgment rendered, without employing legal
remedies against the order of March 6; wherefore the defendant prayed the court
to allow this new demurrer, to dismiss the amended complaint, and to
adjudge the plaintiffs to pay thecosts.
The hearing on this demurrer having been had, the judge, by order ofMarch 24,
1909, sustained the same and dismissed thecase with the costs
against the plaintiffs, and provided that this question should be determined
in the hearing on the said probate proceedings.
In another document ofthe date of March 26, 1909, counsel for the plaintiffs
stated to the court that thelatter desired to appeal from the said ruling
to theSupreme Court, and prayed that final judgment be rendered in the case in
conformity with section 101 of the Code of Civil Procedure and the doctrine
established in the case ofSerrano vs. Serrano (9 Phil. Rep., 142), in order that he
might perfect and duly submit his appeal; but thecourt, by an
order of the27th of the same month, ruled that the case having been dismissed,
with thecosts against the plaintiffs, in the ruling on the last demurrer of March
24, this decision was
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VOL. 15, MARCH 21, 1910. 545

Lopez vs. Olbes.

final and appealable. From this ruling counsel for theplaintiffs appealed and stated
in writing that thelatter also appealed from the rulings of February 26 and March
24, 1909, and announced their intention to file the requisite bill ofexceptions.
The court, by order ofMay 8, 1909, on the grounds therein set forth and in
view of plaintiffs' written petition of March 26, rendered judgment
against theplaintiffs and in favor of thedefendant, and, finding that the allegations
made in thecomplaint were not sufficient to constitute an action,
dismissed thecomplaint with the costs against the plaintiffs, and ordered,
moreover, that after the parties had been notified of this judgment a copy thereof, as
an integral part of the bill ofexceptions submitted, be forwarded to the Supreme
Court.
This is a question ofmaintaining the rights acquired by the plaintiffs by
virtue of a donation of land situated at the place called Ali,
in the pueblo ofGuinobatan, Albay, theboundaries of which are expressed
in the complaint, against the claims of thetestamentary
administrator of the property left by thelate Martina Lopez, who
was the donor of the said land.
Although in paragraph No. 5 of the amended complaint the donees affirm that
they took possession of the land in question, it is certain that the executor, who
claims to have rights as such to thepossession of the said land, succeeded in
having thesame placed in trust, inasmuch as one of thepetitions of the plaintiffs is
to request that thetrusteeship over theproperty be declared dissolved. The Civil
Code provides as follows:
"ART. 618. A gift is an act of liberality by which a person disposes
gratuitously of a thing in favor ofanother, who accepts it."
"ART. 624. All persons who can contract and dispose oftheir property may bestow
gifts.
"ART. 625. All persons who are not especially disqualified by law therefor may
accept gifts."
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546 PHILIPPINE REPORTS ANNOTATED

Lopez vs. Olbes.

"ART. 620. Gifts which are to become effective upon thedeath of the donor
partake of the nature of provisions by last will and shall be governed by the laws
established for testamentary succession."
(These gifts are denominated in law mortis causa.)
 "ART. 621. Gifts which are to produce their effects inter vivos shall be governed
by the general provisions ofcontracts and obligations in all that is not determined in
this title."
"ART. 623. A gift is consummated upon thedonor having knowledge ofits
acceptance by thedonee."
"ART. 633. In order that a gift of real property may be valid it shall be made in a
public instrument, stating therein in detail theproperty bestowed as a gift
and the amount of thecharges, which the donee must satisfy.
"The acceptance may be made in the same instrument bestowing thegift or in a
different one; but it shall produce no effect if not made during the life ofthe donor.
"If made in a different instrument the acceptance shall be communicated
to the donor in an authentic manner, and this proceeding shall be recorded in both
instruments."
The action exercised by Ricardo Lopez in his own behalf and as guardian ofhis
minor children, and by Josefina Lopez, assisted by her husband Ceferino M.
Villareal, in their character of donees, is based on therights which as such donees
they had acquired by virtue of the donation inter vivosmade
by Martina Lopezduring her lifetime in favor of the plaintiffs by an instrument
executed by thedonor bef ore a notary on May 14, 1907, a donation expressly accepted
on thesame date by the donees and of which acceptance the donor was also
informed on the same date; wherefore, these requirements of the law having been
complied with, it is unquestionable that thedominion over the land donated was
properly transmitted to the donees who in fact and by operation of the law
acquired the ownership ofthe property, as customarily occurs in all
contracts oftransfer of dominion.
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VOL. 15, MARCH 21, 1910. 547

Lopez vs. Olbes.

The said action with its motive and grounds may be impugned for any reason based
on the nullity or on the irregular nature of thedonation, tending to make it
inefficacious or to reduce it; but these exceptions, as well as those founded on some
defect or vice, which affect the essential nature and formalities of the act or contract
or the main questions relative thereto, must be heard and argued in an ordinary
action, and must be decided in accordance with law by a final judgment, and not by a
ruling on a demurrer which ordinarily occurs in connection with an incidental motion
concerning mere formalities of procedure and not in a full trial or due process oflaw
wherein the rights ofthe contestants have been examined, argued, and proved.
Property of the testate estate of the deceased Martina Lopez is not here
concerned. During her lifetime she gave away theland mentioned,
in theexercise of a right that pertained to her as owner thereof. By virtue of thesaid
donation the sole and true owners of the land donated are the plaintiffs, so long
as the said donation is not proven to be null, inefficacious, or irregular.
All the questions which by reason of the same are raised by the interested parties
must be heard in a regular trial and decided by a final judgment absolutely
independent of the probate proceedings concerning theestate of the deceased, who
was the previous owner ofthe land concerned; and
therefore the complaint ofthe donees should not have been dismissed, but the trial
should have been proceeded with to final judgment. Theprima facie donation inter
vivos and its acceptance by the donees having been proved by means of a public
instrument, and the donor having been duly notified ofsaid acceptance, thecontract
is perfect and obligatory and it is perfectly in order to demand its f ulfillment, unless
an exception is proved which is based on some legal reason opportunely alleged
by thedonor or her heirs.
So long as the donation in question has not been judicially proved and declared to
be null, inefficacious, or irregular,
548

548 PHILIPPINE REPORTS ANNOTATED

Lopez vs. Olbes,

the land donated is of theabsolute ownership of thedonees and, consequently, does

not form a part of theproperty of the estate ofthe deceased MartinaLopez;
wherefore theaction instituted demanding compliance
with thecontract, the delivery by thedeforciant of the land donated, or that it be
prohibited to disturb theright of the donees, should not be considered as incidental
to the probate proceedings aforementioned.
The question as to whether the provisions ofarticles 634, 636, and
643 ofthe Civil Code were observed or violated should be tried and decided in an
ordinary action.
With respect to whether the donees inter vivos are or are not comprised
within the provisions of section 704 of the Code of Civil Procedure, the English
text of the said section, which, in case of disagreement with the Spanish, is the one
that must prevail and be observed, in accordance with Act No. 63 of thePhilippine
Commission, conclusively proves that an important mistake was made
in the draft of theSpanish text, by using theword donatario (donee), which is not
expressed in the English text, the exact translation of which into Spanish could not
comprise the donee among the heirs and devisees, as was improperly done;
wherefore the demurrer should have been overruled, as it is based on an error so
notably unmaintainable under the general principles of law, and in particular
taking into account the legal provisions relative to the respective character,
condition, and juridical conception of heir, devisee, and donee.
For the foregoing reasons, we hold that the orders ofFebruary 26, March 6, 24,
and 27, together with theadditional order of May 8, 1909, should be and are hereby
revoked, and thecase shall be returned to theCourt of First Instance in order
that the defendant may answer the amended complaint within theregular legal
period and thetrial may then be had in all its proceedings and in accordance with
law. So ordered.

Johnson, Carson, and Moreland, JJ., concur. '

Orders reversed and case remanded.

549

VOL. 15, MARCH 21, 1910. 549

United States vs. Pico.

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