SPECIAL PROCEEDINGS (72 to 109)
Implication Courts trying an ordinary action cannot
INTRODUCTION
What is Special Proceedings
o It is a remedy by which a party seeks to establish a status, right, or a
particular fact (1.3.c)
What is an (Ordinary) Civil Action (Vda. de Manalo)
o A suit or an action by a person/s against another/s in a court of justice in which
the plaintiff pursues the remedy which the law affords him for the redress of an
injury or the enforcement of a right, whether at law or in equity
Civil Action
Nature A formal demand of ones right in a
(Natcher v. CA) court of justice in the manner prescribed
by the court or by the law.
A method of applying legal remedies
according to definite established rules.
Substantive Every ordinary civil action must be
Requirement based on a cause of action (2.1), which
is an act or omission by which a party
violates a right of another (2.2).
Formal Reqts Complaint, Petition
Procedure Instituted and prosecuted according to
(Natcher) the ordinary rules and provisions
relating to actions at law or suits in
equity
Remedy A civil action is one by which
a party sues another for:
the enforcement or protection of a right,
or
the prevention or redress of a wrong
(1.3.a)
Special Proceedings
An application or
proceeding to establish the
status or right of a party, or a
particular fact.
Usually, no formal pleadings
are required unless the
statute expressly so provides.
Application, Motion (Natcher)
Instituted and prosecuted
according to some special
mode Distinct and
independent proceeding;
BUT 72.2: In the absence of
special provisions, the rules
provided for in ordinary
actions shall be, as far as
practicable, applicable in
special proceedings.
Example:
Demurrer (35) applied in
estate settlement (Matute v.
CA)
It is a remedy by which
a party seeks to establish
a status,
a right, or
a particular fact (1.3.c)
resolve to perform acts pertaining to a
special proceeding because it is subject
Appeal (41.2)
to specific prescribed rules (Natcher)
Notice of Appeal, Notice of Appeal or
Record of Appeal for multiple, several 109 via Record of Appeal
appeals where the law, ROC so require (Marcos)
How to Determine Nature of Action, Proceedings (Vda. de Manalo v. CA)
o Averments in the complaint, petition
o Character of the relief sought
o NOT Defenses contained in the answer
Waiver of Procedure
Whether a particular matter should be resolved by the RTC in the exercise of its
general jurisdiction or its limited probate jurisdiction is not a jurisdictional issue
but a mere question of procedure. In essence, it is a procedural question involving
mode of practice which may be waived (Natcher citing Cunanan v. Amparo).
Subject Matter of Special Proceedings (72.1)
Rules of special proceedings are provided for in the following cases:
1. Settlement of estate of deceased persons;
2. Escheat;
3. Guardianship and custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas corpus;
9. Change of name;
10. Voluntary dissolution of corporations;
11. Judicial approval of voluntary recognition of minor natural children;
12. Constitution of family home;
13. Declaration of absence and death
a. EXCEPT For purposes of Remarriage which is a Summary Proceeding
under FC 41, 238, 254 (Rep. v. CA)
b. FC 41, par. 2: For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
c. FC 238: Unless modified by the Supreme Court, the procedural rules in this
Title shall apply in all cases provided in this Code requiring summary court
proceedings. Such cases shall be decided in an expeditious manner without
regard to technical rules.
d. FC 254: xxx all laws, decrees, executive orders, proclamations, rules and
regulations, or parts thereof, inconsistent herewith are hereby repealed
14. Cancellation of correction of entries in the civil registry.
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Importance of Procedural Rules (Rep. v. Kenrick)
o Raison dtre: Orderly and Speedy administration of justice SETTLEMENT OF ESTATE OF DECEASED
o Preventing arbitrariness and injustice
o Facilitating adjudication of cases (Kenrick citing Garbo v. CA) PERSON
o EVEN IF they have often been disparagingly labeled as mere technicalities
o BEC While the Court allows a relaxation in the application of the rules, this
was never intended to forge a bastion for erring litigants to violate the Procedure in General
rules with impunity
o THUS Liberal interpretation and application of the rules applies only in
proper cases and under justifiable causes and circumstances (Garbo in I. Modes of Settlement
a. Testate
Kenrick)
o GR: Ordinary
Adherence to Procedural Rules (Kenrick) o E: Summary
o GR: Follow b. Intestate
o E: Most persuasive of reasons that they may be relaxed to relieve a litigant of an o GR: Judicial
injustice not commensurate with the degree of his thoughtlessness in not Ordinary
complying with the prescribed procedure E: Summary
o E: Extrajudicial

II. Venue (73.1)

a. IF Inhabitant of Ph (citizen/alien) at time of death: RTC in the province in
which he resides at the time of death

Meaning of RESIDENCE
o Fule v. CA (Prevailing Rule): ACTUAL RESIDENCE Physical presence in a place
and actual stay thereat
o Eusebio v. Eusebio: Residence is DOMICILE
o Establishing Domicile (Eusebio)
o Domicile once acquired is retained until a new domicile is gained
o Domicile is not commonly changed by presence in a place merely for
ones own health, even if coupled with knowledge that one will never
again be able, on account of illness, to return home
o Essential Conditions for New Domicile
Capacity to choose and Freedom of choice
Physical presence at the place chosen
Intention to stay therein permanently

Residence as Venue or Jurisdictional

Eusebio: Venue only
Fule, in Maloles v. Phillips: Matter of Venue. It could not have been intended to
define the jurisd over the subject matter bec such legal provision is contained in
a law of procedure dealing merely with procedural matters
Malig: Matter really concerns venue, as the caption of Rule indicates, and in
order to preclude different courts, which may properly assume jurisd, from
doing so
Rodriguez: Domicile of the testator affects the venue.

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 Cuenco v. CA (citing Sy Oa v. Co Ho): Residence of the decease or location of his
estate is not an element of jurisdiction over the subject matter but merely of
venue
Rationale (Kaw Singco in Rodriguez; Sy Oa in Cuenco):
- If jurisdictional, the effect shall be that the whole proceedings, including all
decisions on the different incidents which have arisen in the court, will have to
be annulled and the same case will have to be commenced anew before another
court of the same rank in another province
- This Court is not inclined to annul proceedings regularly had in a lower court
even if the latter was not the proper venue therefor, if the net result would be to
have the same proceedings repeated in some other court of similar jurisdiction
(Cuenco)
b. IF Non-Inhabitant of Ph: RTC of any province in which he had an estate
III. Jurisdiction (73.1)
a. What Court: The power to settle decedents estate is conferred by law upon
all RTC (Rodriguez v. Borja)
b. EXCLUSIVE JURISDICTION: The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts.
o Meaning (Mj): While venue depends on residence or location of
property, RTC may take cognizance of estate proceedings filed before
it first, even if its not the proper venue, to the exclusion of others BEC
it cannot be deprived of the authority conferred upon it by law and
RTCs of concurrent and coordinate jurisd cannot interfere with others
o Nature and Applicability:
Eusebio: Applies only to Non-Resident Decedents who have
properties in several provinces in the Ph THUS two, more courts
have concurrent jurisdiction. It could not have intended to
deprive a competent court of the authority vested therein by law
merely because a similar case had been previously filed before a
court to which jurisdiction is denied by law
Rodriguez: Presupposes that two or more courts have been asked
to take cognizance of the settlement of the estate. Of them, only
one could be of proper venue, yet the rule grants precedence to
that court whose jurisdiction is first invoked, without taking
venue into account
Macias citing De Leon v. Salvador: Various branches of the RTC
have the same or equal authority and exercise concurrent and
coordinate jurisd and thus cannot and are not permitted to
interfere with the respective cases and orders
Maloles: Different branches comprising each court in one judicial
region do not possess jurisdictions independent of and
incompatible with each other
o Rationale (Macias v. Uy Kim citing Benedicto v. Javellana): The
settlement of the estate of a deceased person in court constitutes but
one proceeding. For the successful administration of that estate, it is
necessary that there should be but one responsible entity, one court,
which should have exclusive control of every part of such admin. To
intrust it to two or more courts, each independent of the other, would
result in confusion and delay.
o Purpose (Macias)
To assure stability and consistency in judicial actuations
To avoid confusion that may otherwise ensue if courts of
coordinate jurisd are permitted to interfere with each others
lawful orders
o DEFERMENT OF JURISDICTION (Cuenco v. CA)
Requirement for Attachment of Jurisd: Since it deals with venue
and comity between courts of equal and coordinate jurisdiction, it
indicates that the court with whom the petition is first filed must
also first take cognizance of the settlement of the estate in
order to exercise jurisdiction over it to the exclusion of all
other courts
Deferment: Conversely, such court may, upon learning that a pet.
for probate of the decedents last will has been presented in
another court where the decedent obviously had his conjugal
domicile and resided with his surviving widow and their minor
children, and that the allegation of the intestate pet. before it,
stating that the decedent died intestate, may be actually false,
may decline to take cognizance of the petition and hold the
petition before it in abeyance, and instead defer to the
second court which has before it the pet. for probate of the
decedents alleged last will
o Beneficiary: Not the party litigants but Public Interest (Benedicto in
Macias)
c. Attachment of Jurisdiction: By mere deposit of the will in the court BEC
by then, the court could motu proprio take steps to fix the time and place
for proving the will and issue notices (Rodriguez)
o EVEN IF No Pet. for its Allowance is as yet filed which retroacts to the
date of deposit
BUT Abut v. Abut, citing Rodriguez: Vests upon the filing of the
original petition and upon compliance with 76.3 and 76.4
o EVEN IF No Payment of Fees yet to Clerk of Court (Salazar v. CFI):
Payment of fees to the clerk of court for all services to be rendered by
him in connection with the probate of the will is not jurisdictional
o 73.3 Process: In the exercise of probate jurisdiction, Courts of First
Instance may issue warrants and process necessary to compel the
attendance of witnesses or to carry into effect their orders and
judgments, and all other powers granted them by law. If a person does
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 not perform an order or judgment rendered by a court in the exercise
of its probate jurisdiction, it may issue a warrant for the apprehension
and imprisonment of such person until he performs such order or
judgment, or is released.
d. Continuation of Jurisdiction: Jurisdiction of the court, once acquired,
continues until the termination of the case and remains unaffected by
subsequent events (Abut)
e. Challenge to Jurisdiction: The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the location of his
estate, shall not be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of jurisdiction
appears on the record.
Jurisdiction of the Probate Court (Vda. de Manalo)
o Limited and Special
o Cannot hear and dispose of collateral matters and issues which may be properly
threshed out only in an ordinary civil action
SCOPE OF JURISDICTION: Direct and Incidental Matters (Borromeo-Herrera v.
Borromeo)
1. Title or Ownership of Property (Natcher; Bernardo v. CA; Morales v. CFI;
Pastor v. CA)
o GR: May not decide such question BEC Extraneous matter
WHY: Policy of the law to terminate proceedings for the settlement of
the estate of deceased persons with the least loss of time THUS
Probate Court is not the best forum for the resolution of adverse
claims of ownership (Ermac v. Medelo)
o E: May decide such question IF
Party merely prays for the inclusion or exclusion from the inventory of
the property (Bernardo)
Question is one of collation, advancement
Interested parties are all heirs
Parties consent to the assumption of jurisdiction by the probate court;
Heirs submit the question to the probate court
Rights of third parties are not impaired (Natcher)
RATIONALE FOR EXCEPTION: Procedural THUS Waivable
Procedure affects only personal rights to a mode of practice
which may be waived (Cunanan v. Amparo)
WON a particular matter should be resolved by the Court in the
exercise of its general or limited jurisd as a special court is in
reality not a jurisdictional, but in essence, of procedural one,
involving a mode of practice which may be waived (Valera v.
Inserto citing Cunanan)
Probate court is in the best position to receive evidence on the
discordant contentions of the parties as to the assets of the
decedents estate, the valuations thereof, and the rights of the
transferees of some of the assets, if any (Pereira v. CA)
o Effect:
Provisional Finding, without prejudice to the final determination
of title in a separate action (Bernardo citing Garcia v. Garcia;
Pastor)
Determination is not subject to Writ of Execution v. possessor
BEC it is only for the purpose of inclusion in inventory (Valera)
The function of resolving whether or not a certain property
should be included in the inventory or list of properties to be
administered by the administrator is only provisional in
character, not conclusive, and is subject to the final decision in a
separate action which may be instituted by the parties (Pereira)
o Remedy if Not Allowed: Independent Action and Notice of Lis Pendens
(Ermac v. Medelo)
2. Filiation is a Proper Issue for Probate Proceedings BUT Not the Proper Time to
raise it: Determination of persons entitled to share in the residue of the estate,
for the purpose of including them in the order of declaration of heirs, is towards
the last stage of the distribution proceedings, after the debts, charges, and
expenses of admin. have been fully paid, THUS the court is not obliged to accept
or receive evi of filiation of an oppositor to the probate in the hearing for the
probate of a will (Reyes v. Ysip)
3. Appointment, Removal of Administrators, Executors, Guardians, Trustees (Heirs
of Reyes v. Reyes). Determination of who can be appointed administrators is a
proper question for the PC esp. where two persons are claiming to be the wives
of the deceased. The PC properly appointed a TP (Torres v. Javier)
4. PC has jurisd to pass upon the validity of a waiver agreement among the heirs
of their inheritance rights. Jurisd of PC extends to matters incidental and
collateral to the exercise of its recognized powers in handling the settlement of
the estate (Borromeo-Herrera)
5. Determination of the validity of a redemption made by the heirs over the
decedents property is a question of ownership. However, its inclusion in the
inventory, though possibly erroneous, is only provisional (Morales v. CFI)
6. Power to deliver possession of property to the estate is a mere consequence
of the power to approve claims of claimants v. estate (Cunanan v. Amparo)
7. Questions as to advancement alleged to have been / made by the deceased to
an heir may be heard and determined by the court having jurisdiction of the
estate proceedings (Natcher)
8. Question of administration is merely incidental to the principal proceeding for
the settlement and distribution of the whole value of the estate (Matute)
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9. Issue of intrinsic validity if void on its face for practical reasons (Manahan v.
Manahan). The probate of a will might become an idle ceremony if on its face, it
appears to be intrinsically void. Where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issue, e.g. Preterition of heir (Balanay v. Martinez)
JURISDICTIONAL AMOUNT: Value of the whole estate, NOT Value of the particular
property or portion of the estate subject to administration (Matute v. CA)
IV. Effect of Death on Dissolution of Marriage and Settlement of Community
Property (73.2)
a. Where to Settle Community Property
o Ordinary liquidation and partition proceedings (Calma v. Tanedo)
o Settlement of Estate of Deceased or Either of Deceased:
If ONE dies: When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid, in the
testate or intestate proceedings of the deceased spouse.
If BOTH die: If both spouses have died, the conjugal partnership
shall be liquidated in the testate or intestate proceedings of
either.
How to Know Which One: Sound judicial discretion in which
one it should be made (PCIB v. Escolin)
b. Nature of Remedies: Alternative (Calma)
o Not Cumulative
o Cannot be availed of at the same time
Procedure on Settlement:
FC 102.
Upon dissolution of the absolute community regime,
the following procedure shall apply:
(1) An inventory shall be prepared,
listing separately all the properties of the absolute community and
the exclusive properties of each spouse.
(2) The debts and obligations of the absolute community
shall be paid out of its assets.
In case of insufficiency of said assets,
the spouses shall be solidarily liable for the unpaid balance
with their separate properties
in accordance with the provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute community
shall constitute its net assets,
which shall be divided equally between husband and wife,
unless a different proportion or division was agreed upon in the marriage
settlements, or
unless there has been a voluntary waiver of such share provided in this Code.
For purpose of computing the net profits subject to forfeiture
in accordance with Articles 43, No. (2) and 63, No. (2),
the said profits shall be the increase in value between
the market value of the community property
at the time of the celebration of the marriage and
the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children
shall be delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the partition of the properties,
the conjugal dwelling and the lot on which it is situated
shall be adjudicated to the spouse
with whom the majority of the common children choose to remain.
Children below the age of seven years are deemed to have chosen the mother,
unless the court has decided otherwise.
In case there in no such majority, the court shall decide,
taking into consideration the best interests of said children.
FC 129. Upon the dissolution of the conjugal partnership regime,
the following procedure shall apply:
(1) An inventory shall be prepared,
listing separately all the properties of the conjugal partnership and
the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership
in payment of personal debts and obligations of either spouse
shall be credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed
for the use of his or her exclusive funds in the acquisition of property or
for the value of his or her exclusive property,
the ownership of which has been vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership
shall be paid out of the conjugal assets.
In case of insufficiency of said assets,
the spouses shall be solidarily liable for the unpaid balance
with their separate properties, in accordance with the provisions of 121.2
(5) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever source,
the loss or deterioration of movables belonging to either spouse
used for the benefit of the family,
even due to fortuitous event,
shall be paid to said spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute the
profits,
which shall be divided equally between husband and wife,
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unless a different proportion or division was agreed upon in the marriage
settlements or
unless there has been a voluntary waiver or forfeiture of such share
as provided in this Code.
(8) The presumptive legitimes of the common children
shall be delivered upon the partition in accordance with Article 51.
(9) In the partition of the properties, unless otherwise agreed upon by the parties,
the conjugal dwelling and the lot on which it is situated
shall be adjudicated to the spouse
with whom the majority of the common children choose to remain.
Children below the age of seven years are deemed to have chosen the mother,
unless the court has decided otherwise.
In case there is no such majority, the court shall decide,
taking into consideration the best interests of said children.
FC 103. Upon the termination of the marriage by death,
the community property shall be liquidated
in the same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted,
the surviving spouse shall liquidate the community property
either judicially or extra-judicially
within six months from the death of the deceased spouse.
If upon the lapse of the six months period, no liquidation is made,
any disposition or encumbrance
involving the community property of the terminated marriage
shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements,
a mandatory regime of complete separation of property
shall govern the property relations of the subsequent marriage.
FC 130. Upon the termination of the marriage by death,
the conjugal partnership property shall be liquidated
in the same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted,
the surviving spouse shall liquidate the conjugal partnership property
either judicially or extra-judicially
within six months from the death of the deceased spouse.
If upon the lapse of the six-month period no liquidation is made,
any disposition or encumbrance
involving the conjugal partnership property of the terminated marriage
shall be void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements,
a mandatory regime of complete separation of property
shall govern the property relations of the subsequent marriage.
FC 131. Whenever the liquidation of the conjugal partnership properties
of two or more marriages contracted by the same person
before the effectivity of this Code
is carried out simultaneously,
the respective capital, fruits and income of each partnership
shall be determined upon such proof as may be considered
according to the rules of evidence.
In case of doubt as to which partnership the existing properties belong,
the same shall be divided between the different partnerships
in proportion to the capital and duration of each.
FC 132. The Rules of Court on the administration of estates of deceased persons
shall be observed in
the appraisal and sale of property of the conjugal partnership, and
other matters which are not expressly determined in this Chapter.
V. Presumption of Death
a. How: For purposes of settlement of his estate, a person shall be presumed
dead if absent and unheard from for the periods fixed in the Civil Code
(73.4)
o NCC 391: The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
o A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane;
o A person in the armed forces who has taken part in war, and has
been missing for four years;
o A person who has been in danger of death under other
circumstances and his existence has not been known for four
years. (n)
b. Remedy if Alive: xxx But if such person proves to be alive, he shall be
entitled to the balance of his estate after payment of all his debts. The
balance may be recovered by motion in the same proceeding (73.4)
NCC 392: If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the
condition in which it may be found, and the price of any property
that may have been alienated or the property acquired therewith;
but he cannot claim either fruits or rents.
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Summary Settlement of Intestate Estates
I. Modes of Summary Settlement of Estates
a. Extrajudicial
i. Public Instrument
ii. Action for Partition
iii. Affidavit
b. Judicial: Small Claims
PROPRIETY OF ADMINISTRATION
GR: When a person dies leaving property, the same should be judicially administered
and the competent court should appoint a qualified admin
E: 74.1 (Extrajudicial Settlement)
EE: Heirs are not precluded from instituting admin proceedings even if the estate
has no debts, obligs, if they do not desire, for good reasons, to resort to an ordinary
action for partition (Pereira)
RATIONALE: Unnecessary and Deprivation of Use
- Heirs are not bound to submit the property to a judicial administration when a
person dies without leaving pending obligations to be paid BEC it is always long and
costly, superfluous and unnecessary WHERE determination of what property
belonged to deceased may properly be ventilated in the partition proceedings,
especially where such property is in the hands of one heir (Montserrat v. Ibanez,
citing Fule v. Fule; Rodriguez v. Tan; Pereira v. CA)
- There is no necessity for the appointment of an admin to administer the estate for
them and to deprive the real owners of their possession to which they are
immediately entitled where the deceased dies without pending obligs (Guico v.
Bautista)
- It is a principle of universal acceptance which declares that one has the instant
right to occupy and use that which he owns, and it is only in the presence of reasons
of the strongest and most urgent nature that the principle is prevented from
accomplishing the purpose which underlies it (McMicking v. Sy)
PURPOSE
- To put into ones hands the property which belongs to him, not only at the earliest
possible moment, but also with the least possible expense (McMicking)
- The removal of property from the possession of its owner and its deposit in the
hands of another for administration is a suspension of some of his most important
rights of property and is attended with an expense sometimes entirely useless and
unnecessary and thus such procedure should be avoided whenever and wherever
possible (McMicking)
NATURE OF OPTION: Not mandatory, compulsory (Rodriguez; Pereira)
74.1 does not preclude the heirs from instituting administration proceedings, even if
the estate has no debts or obligations, if they do not desire to resort FOR GOOD
REASONS to an ordinary action of partition
How: Use of may
Thus: There is nothing in 74.1 which prohibits said heirs from instituting
special proceedings for the administration of the intestate estate if they
cannot agree on the extrajudicial partition and apportionment of the same
(Orozco in Rodriguez)
REQD: GOOD REASONS (Pereira)
What: Depends on circumstances of each case
Not: -There is dispute as to the bulk of the property
-Merely to avoid multiplicity of suits
-Appointment only to have legal capacity to appear to represent deceased
spouses in their inheritance from another
Why Reqd: Administration proceeding for no useful purpose would only
unnecessarily expose the estate to the risk of being wasted or squandered
Extrajudicial: Intestate
II. Conditions (74.1)
a. Decedent left no will
b. Decedent left no debts
i. PRESUMED IF No creditor files a petition for letters of administration
within 2 years after the death of the decedent
ii. IF WITH DEBTS: Submit to regular estate proceedings BEC Obligs
must first be paid or compounded with the creditors before the estate
can be divided among the heirs > In regular estate proceedings, all
creditors are required to disclose themselves and submit their
respective claims within a short period otherwise forever barred
THUS Heir is free from invisible claims and creditors may not later
appear and initiate the very estate proceedings sought to be avoided
(Guico)
c. Heirs are all of age, or the
Minors are represented by their judicial or legal representatives duly
authorized for the purpose
III. What
a. Parties may divide the estate among themselves as they see fit
b. Without securing letters of administration
IV. How
a. If Heirs do not disagree
i. By means of a public instrument
1. E: Unregistered Private Doc VALID IF No TP prejudiced BEC Reg is
only for constructive notice and not a reqt for validity (Pada-Kilario
v. CA)
ii. Filed in the office of the register of deeds
b. If Heirs disagree
i. By Stipulation in an Ordinary Action for Partition

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 1. May be converted into Regular Proceeding for Settlement of Estate
IF complied with Rules 79-90 (Guico) AND may convert LA
proceedings into judicial partition if heirs disagree BEC where the
more expeditious remedy of partition is available to the heirs, the
heirs or majority of them may not be compelled to submit to
administration proceedings (Avelino v. CA; Sanchez v. CA)
2. Partition can be in the form of a Compromise among heirs which
does not require judicial approval BEC (i) it is a contract to avoid
litigation or to put an end to one already commenced; and (ii) PC
without jurisd over QOwnership (Sanchez v. CA)
3. Prescription:
GR: Imprescriptible AS LONG AS defendants do not hold prop under
an adverse title (Gerona v. De Guzman)
E: 4y from adverse possession or discovery of fraud
ii. Filed in the office of the register of deeds
1. E: Unregistered Private Doc valid IF No TP prejudiced BEC Reg is
only for constructive notice and not a reqt for validity (Pada-Kilario
v. CA)
c. If Heir is only one
i. He may adjudicate to himself the entire estate by means of an Affidavit
ii. Filed in the office of the register of deeds
1. E: Unregistered Private Doc valid IF No TP prejudiced BEC Reg is
only for constructive notice and not a reqt for validity (Pada-Kilario
v. CA)
d. IF Administration Proceedings already commenced: As long as the
conditions are fulfilled, the [voluntary] partition can take place no matter
what stage the administration may have reached BUT partition after the
appt of an admin will not interfere with the rights acquired by TPs dealing
with said admin within the limits of his authority and prior to the partition
V. Requirements
a. Registration of PI/Stipulation/Affidavit with RD
b. File a bond in register of deeds, if personal prop is to be distributed, at
courts discretion (74.3)
i. simultaneously with public instrument
ii. as CONDITION PRECEDENT to registration
Where: RD of every province where personal prop is located
iii. in an amount equivalent to the value of the personal property involved
as certified to under oath by the parties concerned
iv. conditioned upon the payment of any just claim that may be filed
under 74.4 > Bond liable for 2y after distribution
1. within 2 years after the settlement and distribution of an estate
a. E: 1 y from removal of incapacity IF person authorized to file a
claim is a minor or mentally incapacitated, or is in prison or
outside the Philippines on the date of the expiration of the period
of 2 years prescribed in 74.4 (74.5)
2. it shall appear that
a. an heir or other person has been unduly deprived of his lawful
participation in the estate payable in money
b. there are debts outstanding against the estate which have not
been paid
3. such heir or such other person may compel the settlement of the
estate in the courts for the purpose of satisfying such lawful
participation
4. after hearing
5. court having jurisdiction of the estate may, by order after hearing
a. settle the amount of such debts or lawful participation
b. how much and in what manner each distributee shall contribute
in the payment thereof
c. issue execution, if circumstances require, against the bond in 74.3
or against the real estate belonging to the deceased, or both.
6. Such bond and such real estate shall remain charged with a liability
to creditors, heirs, or other persons for the full period of 2 years
after such distribution, notwithstanding any transfers of real estate
that may have been made
c. Publication of fact of extrajudicial settlement in np of general circulation
in the province once a week for three consecutive weeks
d. No extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof (74.1)
If proceedings is in rem and publication is notice to all, why binding only on
participants? BEC Law provides otherwise > THUS! Both Publication and
Notice are reqd
Judicial: Small Value
*Summary BEC without administration
VI. Conditions (74.2)
a. Gross value of the in/testate estate of a deceased < P10k
b. By petition of an interested person, such fact is made to appear to the RTC
having jurisdiction of the estate
c. Notice for Hearing
i. Published in np of gc in the province once a week for three
consecutive weeks AND
ii. Sent to interested persons as the court may direct
d. Hearing which shall be held > 1m x <3m from date of last publication of a
notice
VII. What
a. Court may
i. Grant the allowance of the will, if any
ii. Determine who are the persons legally entitled to participate in the
estate
8
 iii.Apportion and divide the estate among them after payment of debts as
the court shall then find to be due
b. Persons entitled to estate shall be entitled to receive and enter into the
possession of the portions of the estate so awarded to them respectively
i. In their own right IF they are lawful age and legal capacity
ii. By their guardians or trustees legally appointed and qualified IF
otherwise
VIII. How
a. Court may proceed
i. Summarily
ii. Without the appointment of an executor or administrator
iii. Without delay
b. Court shall make such order as may be just respecting the costs of the
proceedings
c. Orders shall be recorded
i. In Office of the Clerk: All orders and judgments made or rendered in
the course thereof shall be recorded in the office of the clerk
ii. In Office of the Clerk and Proper Registers Office: Order of partition or
award, if it involves real estate, shall be recorded in the proper
registers office.
IX. Requirements: Bond
a. File a bond in register of deeds (74.3)
i. The court may require the distributees to file a bond
ii. Before allowing a partition
iii. If property other than real is to be distributed
iv. In an amount to be fixed by court
v. Conditioned for the payment of any just claim which may be filed
under 74.4
1. within 2 years after the settlement and distribution of an estate
a. E: 1 y from removal of incapacity IF person authorized to file a
claim is a minor or mentally incapacitated, or is in prison or
outside the Philippines on the date of the expiration of the period
of 2 years prescribed in 74.4 (74.5)
2. it shall appear that
a. an heir or other person has been unduly deprived of his lawful
participation in the estate payable in money
b. there are debts outstanding against the estate which have not
been paid
3. such heir or such other person may compel the settlement of the
estate in the courts for the purpose of satisfying such lawful
participation
4. after hearing
5. court having jurisdiction of the estate may, by order after hearing
a. settle the amount of such debts or lawful participation
b. how much and in what manner each distributee shall contribute
in the payment thereof
c. issue execution, if circumstances require, against the bond in 74.3
or against the real estate belonging to the deceased, or both.
6. Such bond and such real estate shall remain charged with a liability
to creditors, heirs, or other persons for the full period of 2 years
after such distribution, notwithstanding any transfers of real estate
that may have been made
X. Two Year Lien (74.4)
a. What: real estate shall remain charged with a liability to creditors, heirs,
or other persons, notwithstanding any transfers of real estate that may
have been made (Effect of Subsequent Transfers: Cancellable - Tan)
When:
b. 2 Years from Death before allowing Partition
i. PRESUMED NO DEBT IF No creditor files a petition for letters of
administration within 2 years after the death of the decedent
c. 2 Years from Distribution
i. within 2 years after the settlement and distribution of an estate
1. E: 1 y from removal of incapacity IF person authorized to file a claim
is a minor or mentally incapacitated, or is in prison or outside the
Philippines on the date of the expiration of the period of 2 years
prescribed in 74.4 (74.5)
ii. it shall appear that
1. there are debts outstanding against the estate which have not been
paid
2. an heir or other person has been unduly deprived of his lawful
participation in the estate
iii. such heir or such other person may compel the settlement of the
estate in the courts for the purpose of satisfying such lawful
participation
iv. after hearing
v. court having jurisdiction of the estate may, by order after hearing
1. settle the amount of such debts or lawful participation
2. how much and in what manner each distributee shall contribute in
the payment thereof
a. IF Payable in money: Not to cancel partition but fix amount due
from heirs or execute lien on realty
b. IF Not payable in money: Cancel partition UNLESS Creditor
agrees to be paid in money (Tan v. Benolirao)
d. Nature of Lien: Legal Encumbrance on real property in favor of the
excluded heirs or creditors (Tan v. Benolirao)
e. Remedies: Court may issue execution, if circumstances require, against:
i. Contribution from Heirs
ii. Lien on Real Property belonging to Deceased
iii. Bond
BUT! Lien cannot be substituted by Bond during 2y period (Rebong v.
Ibanez)
iv. Both
9

XI. Remedy of Creditors: Appointment of New Admin over Necessary Portion
(McMicking)
a. When:
i. There must have been discovered a claim against the estate within
the 2y after the settlement and distribution of the estate
ii. The creditor holding the claim must be the person who moves the
court for the appt of an admin
b. Effect: Administration over such portion as is necessary to pay the
discovered debt
c. Reqts: Hearing. Appt of admin ought not to be permitted unless the heirs
or persons among whom the prop was partitioned have been given an opp
to be heard on the application
d. Why: An obligation, once discharged, cannot be re-created by the act of
others in which the person as to whom it was discharged takes no part
THUS New admin would have new duties, some of which would have been
quite different from those of the admin appointed originally, as well as new
sureties, and new obligs (McMicking)
XII. Two Year Period (McMicking)
a. Effect of Lapse:
i. Deprives all debts, which are not discovered within the prescribed
time, of the power of requiring an administration of the estate
(McMicking)
ii. Discharges original admin and his sureties (BUT Wala ngang
administrator pag summary?!)
- Duties: to make sure that their principal obeys the law in the
handling and distribution of the estate
- Discharge: When the estate is legally turned over to those entitled
thereto
b. Applicability: Only for Valid Partitions (Pedrosa v. CA citing Gerona;
Sampilo v. CA)
i. 74.4 2y Prescriptive Pd applies only to persons who have participated
or taken part or had notice of the ej partition
ii. NA when ej partition was executed without notice to all heirs
iii. Remedy IF Fraudulent: 4y to annul on the ground of fraud on basis of
NCC 1146
c. Purpose
i. Heir is free from invisible claims and creditors may not later appear
and initiate the very estate proceedings sought to be avoided (Guico)
ii. A surreptitious division of estate behind the backs of the creditors
cannot avail as the latter have 2y thereafter in which to throw at least
a portion of the estate into administration and thereby nullify the
attempt to overreach them (McMicking)
XIII. Prescriptive Periods
a. GR: 2y from partition or distribution
b. E:
i. 1y from Removal of Incapacity IF Incapacitated
ii. 4y from Discovery of Fraud

Administration Duties (McMicking)

- Termination:
a. One who follows a law commits no fault, incurs no failure,
and wounds no rights, and is free in person and in property >
Observance of the law discharges obligations > ie When the
estate is legally turned over to those entitled thereto
b. When the thing on which he was appointed to operate
having been withdrawn wholly beyond his ken by the very
power (law) which appointed him
- Scope of Accountability: Admin cannot be held to any accountability
for prop over which he has absolutely no power or jurisd and in which
he has not the slightest legal interest
- New Admin: Necessary to appoint a new admin just as if one had not
been named before for new purposes

Duties of Sureties (McMicking)

- Scope of Liability: Cannot be held liable for prop which by force of
law has been taken from the principal and its ownership and control
turned over to others

10
Settlement of Estate - BEC the very existence of a purported testament is in itself prima facie proof that
the supposed testator has willed that his estate should be distributed in the manner
hereinafter provided (Balanay)
I. Production of Will (75) - BEC the law enjoins the probate of the will and ppolicy requires it because, unless
*Mandatory and Imprescriptible the will is probated and notice thereof given to the world, the right of a person to
Who will produce and When? dispose of his property, by will, may be rendered nugatory (Maninang)
1. Person who has custody of a will (75.2)
- When: 20d from knowledge of death What: AUTHENTICATION
- What: Deliver will In the phraseology of the procedural law, there is no essential difference between
- To: Court having jurisd or Executor named in will the authentication of a will and the probate thereof. The words authentication and
probate are synonymous in this case. All the law requires is that the competent court
2. Executor named in will (75.3) declare that in the execution of the will, the essential external formalities have
- When: 20d from knowledge of death or from knowledge of being executor, been complied with and that, in view thereof, the document, as a will, is valid and
whichever is later effective in the eyes of the law (Manahan v. Manahan)
- What: Deliver will unless the will has reached the court in any other manner,
Accept/Refuse trust in writing SCOPE OF PROBATE (Pastor v. CA; Maninang; Cayetano v. Leonidas; Maloles v.
- To: Court having jurisd Phillips)
GR: Restricted to EXTRINSIC VALIDITY or DUE EXECUTION, AUTHENTICATION
When: Generally, Only AFTER DEATH (Maloles v. Phillips) -Whether the Testator, being of sound mind, freely executed the will
Ordinarily, probate proceedings are instituted only after the death of the (Age, Mental Capacity) (Testamentary Capacity)
testator bec of the ambulatory nature of wills -In accordance with the formalities prescribed by law
i.e. Signing by the testator or someone in his behalf
Effect of Failure Acknowledgment of the instrument
Fine < P2k (75.4), Imprisonment (75.5): NOT Validity of its provisions, INTRINSIC VALIDITY which normally comes
Person having custody of a will after the death of the testator only after the court has declared that the will has been duly authenticated
who neglects without reasonable cause to deliver the same, (Nuguid v. Nuguid in Maninang)
when ordered so to do, to the court having jurisdiction, E: Intrinsic validity of will may be passed upon even before probate because
may be committed to prison and there kept until he delivers the will practical considerations so demanded (Maninang, cited in Cayetano)
(BUT How can he deliver will if in prison?)
NATURE OF PROBATE
Is 20d jurisdictional? No. Only monetary penalty for failure a. Conclusive (also in Johnson; Cuenco)
BEC Presentation of a decedents will to the competent court has always Subject to the right of appeal, such allowance of the will shall be conclusive as to its
been deemed by our law as more of a duty than a right, and the neglect of due execution (75.1).
such obligation carries with it the corresponding penalty (Guevara v.
Guevara) b. Final and Appealable Probate Decree (Fernandez v. Dimagiba)
- It is elementary that a probate decree finally and definitively settles all questions
Implication: IMPRESCRIPTIBLE Action to Pet. for Probate (Guevara v. concerning capacity of the testator and the proper execution and witnessing of his
Guevara) last will and testament, irrespective of whether its provisions are valid and
enforceable or otherwise. As such, the probate order is final and appealable
Why Produce?
-No will shall pass either real or personal estate unless it is proved and allowed in c. In Rem (In re: Estate of Johnson; Cuenco; Suntay)
the proper court (75.1). - The proceeding as to the probate of a will is essentially one in rem, and in the very
-The law enjoins the probate of the will and ppolicy requires it (Guevara) nature of things, the state is allowed a wide latitude in determining the character of
the constructive notice to be given to the world in a proceeding where it has
Implication: MANDATORY (Balanay v. Martinez; Maninang v. CA) absolute possession of the res (Johnson)

11
- Implication: Notice by publication is a pre-requisite to the allowance of a will >
constructive notice to the whole world where the probate is binding upon everybody
(Cuenco)
- Implication: Personal notice, or by publication, or both to all interested parties
must be made (Suntay)
- Implication: Upon the publication of the petition, the courts jurisdiction extends to
all persons interested in said will or estate. Thus, the fact that the amended petition
named additional heirs not included in the original pet. did not require that notice of
the amended pet. be published anew (Abut)
d. Preferable to Intestacy (Balanay v. Martinez; Cuenco)
- To give effect to the intention and wishes of the testatrix is the first and principal
law in the matter of testaments. Testacy is preferable to intestacy. An interpretation
that will render a testamentary disposition operative takes precedence over a
construction that will nullify a provision of the will (Balanay)
- Testacy is favored. Doubts are resolved in favor of testacy especially where the will
evinces an intention on the part of the testator to dispose of practically his whole
estate. So compelling is the principle that intestacy should be avoided and that the
wishes of the testator should prevail, that sometimes the language of the will can be
varied for the purpose of giving it effect (Balanay)
- Testate proceedings for the settlement of the estate of a deceased person take
precedence over intestate proceedings for the same purpose (Cuenco citing Uriarte
v. CA)
Implication: Conversion of Intestate to Testate upon Discovery of Will
- Court first taking cognizance may, upon learning that a pet. for probate of
the decedents last will has been presented in another court where the
decedent obviously had his conjugal domicile and resided with his
surviving widow and their minor children, and that the allegation of the
intestate pet. before it, stating that the decedent died intestate, may be
actually false, may decline to take cognizance of the petition and hold
the petition before it in abeyance, and instead defer to the second
court which has before it the pet. for probate of the decedents alleged last
will
- If in the course of intestate proceedings pending before a CFI, it is found
that the decedent had left a will, proceedings for the probate of the
latter should replace the intestate proceedings EVEN IF
- at that state an administrator had already been appointed, the
latter being required to render final account and turn over the
estate in his possession to the executor subsequently appointed
(Uriarte in Cuenco)
- at that stage, an order in the intestate proceeding, approving the
extrajudicial partition, had already been rendered BEC such order
is not a bar to the present pet. for probate of an alleged will
(Casiano v. Maloto)
- Conversion is without prejudice that should the alleged last will be
rejected or is disapproved, the proceeding shall continue as intestacy
(Uriarte in Cuenco)
e. No estoppel in probate proceedings because of public policy (Alsua-Betts v. CA)
- The principle of estoppel is not applicable in probate proceedings which involve
public interest wherein estoppel blocks the ascertainment of the truth as to the
circumstances surrounding the execution of a testament and the interest of the
state to see that testamentary dispositions be carried out if, and only if,
executed conformably to law (Estate of Apostol v. Obispo in Alsua-Betts)
f. No statute of limitations in probate proceedings (Guevara v. Guevara)
a) Statute of Limitations is destructive of the right of testamentary
disposition and violative of the owners right to control his property,
leaving wills at the mercy and whim of custodians and heirs interested in
their suppression
b) Suppression of will is contrary to law and PPolicy
- that the court should not refuse to admit wills to probate without inquiry
into their validity
- that the wishes of the deceased be carried out where the state authority
takes over the opposite vigilance and supervision where the decedent may
no longer act to have his testamentary dispositions duly executed
- that unless the will is probated and notice thereof given to the whole
world, the right of a person to dispose of his property by will may be
rendered nugatory
- that absent legatees and devisees could be cheated of their inheritance
through the collusion of some of the heirs who might agree to the partition
of the estate among themselves to the exclusion of others
II. Allowance or Disallowance of a Will (76)
WHO MAY PETITION FOR ALLOWANCE OF WILL AND WHEN (76.1)
Executor named in a will
Devisee named in a will Any time after the death of the
testator
Legatee named in a will
Any other person interested in the estate
Effect of Assignment of Interest (Duran v. Duran)
Pending Settlement Proceedings: No effect on right of assignor
BEC PC already acquired jurisd thus
any assignment must be approved and
not deemed final until estate is closed
Before Settlement Proceedings: Assignor no longer interested person
Remedy: Annul, Rescind assignment
Testator himself During his lifetime
12
 Why allow Testator to petition himself (Maloles)
-Easier for courts to determine his mental condition
-Fraud, intimidation, undue influence are minimized
-Will may be corrected at once if non-compliant with reqts
-Only questions that may remain after death will refer to intrinsic validity
EFFECT ON JURISDICTION OF COURT (Maloles): Jurisdiction of Court
granting execution of will after death is independent from jurisdiction of
Probate Court approving will presented by testator himself. Although 73.1
applies insofar as venue for the petition for probate of will is concerned, it
does not bar other branches of the same court from taking cognizance of
the settlement of the estate of the testator after his death BEC 73.1 is only a
matter of VENUE, and is NOT JURISDICTIONAL so as to deprive other
coordinate, co-equal courts of jurisdiction WHERE different branches
comprising each court in one judicial region do not possess jurisdictions
independent of and incompatible with each other
When to File: IMPRESCRIPTIBLE, ANY TIME (Guevara v. Guevara) BEC:
a) Statute of Limitations is destructive of the right of testamentary disposition and
violative of the owners right to control his property, leaving wills at the mercy and
whim of custodians and heirs interested in their suppression > Protection of
Testators expressed wishes
b) Suppression of will is contrary to law and PPolicy
- that the court should not refuse to admit wills to probate without inquiry into their
validity
- that the wishes of the deceased be carried out where the state authority takes over
the opposite vigilance and supervision where the decedent may no longer act to
have his testamentary dispositions duly executed
- that unless the will is probated and notice thereof given to the whole world, the
right of a person to dispose of his property by will may be rendered nugatory
- that absent legatees and devisees could be cheated of their inheritance through the
collusion of some of the heirs who might agree to the partition of the estate among
themselves to the exclusion of others
WHERE TO APPLY AND HOW (76.1)
Petition the court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is lost or destroyed.
CONTENTS OF PETITION FOR ALLOWANCE OF WILL (76.2)
- Must show so far as known to the petitioner:
1. The jurisdictional facts (Vda. de Manalo; Cuenco; Salazar v. CFI)
o Fact of death
o Residence at the time of death in province of probate court (within its
territorial jurisdiction) or
o If non-resident, Estate left in such province
o A Will left by decedent
o Delivery and Possession of Will to Court
2. The names, ages, and residences of the heirs, legatees, and devisees of the testator
or decedent;
3. The probable value and character of the property of the estate;
4. The name of the person for whom letters are prayed;
5. If the will has not been delivered to the court, the name of the person having
custody of it.
- How Alleged: Application + Will: Law is silent as to the specific manner of bringing
the jurisdictional allegations before the court, but practice and jurisprudence have
established that they should be made in the form of an application and filed with
the original will attached, e.g. Counter-Petition (Salazar)
What if Copy of Will only: Courts permit attachment of a mere copy of the
will to the application, without prejudice to producing the original at the
hearing or when the court so requires (Salazar)
- Effect of Defect: no defect in the petition shall render void the allowance of the
will, or the issuance of letters testamentary or of administration with the will
annexed.
SERVICE OF NOTICE AND HEARING (76.3)
- Who appoints time for hearing: Court
- When: When a will is delivered to, or a petition for the allowance of a will is filed in,
the court having jurisdiction
- Duties of Court: Fix Hearing and Cause Publication
- shall fix a time and place for proving the will when all concerned may
appear to contest the allowance thereof
- shall GR: cause notice of such time and place to be published 3
weeks* successively, previous to the time appointed, in a newspaper of
general circulation in the province
E: But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
*Meaning of 3 Week Publication: Does not mean that the notice
should be published for three full weeks before the date set for
the hearing on the will. The first publication of the notice need
not be made 21 days before the day appointed for the hearing
(Basa v. Mercado)
- shall also cause copies of the notice of the time and place fixed for proving
the will to be addressed
To: (76.4)
a. designated or other known heirs, legatees, and devisees of
the testator resident in the Philippines at their places of
residence
13
 How:
1. deposited in the post office with the postage thereon
prepaid at least 20 days before the hearing, if such
places of residence be known.
2. Personal service of copies of the notice at least 10
days before the day of hearing shall be equivalent to
mailing
b. person named as executor, if he be not the petitioner, also, to
any person named as co-executor not petitioning, if their places
of residence be known
How:
1. A copy of the notice must in like manner be mailed
with the postage thereon prepaid at least 20 days before
the hearing, if such places of residence be known
2. Personal service of copies of the notice at least 10
days before the day of hearing shall be equivalent to
mailing
c. If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs (76.4)
Nature of Notice Reqt to Individual Heirs
-Abut: Procedural, Not Jurisdictional. Omission, if any, does not
affect the jurisdiction of the court; it constituted a mere
procedural error BEC the court acquires jurisdiction over all
persons interested in the estate through the publication of the
pet. in the np (Abut citing Perez v. Perez)
- De Aranz v. Galing: Under 76.4, individual notice upon heirs,
legatees, devisees is necessary when they are known or when
their places of residence are known. In other instances, such
notice is not necessary and the court may acquire and exercise
jurisd simply upon the publication of the notice (Aranz citing
Joson v. Nable)
WHAT TO PROVE AT HEARING PROPER (76.5) -3
Compliance with service of notice and hearing must first be shown
Testimony in support of the will
- Form: All such testimony shall be taken under oath and reduced to
writing
- Number of Witnesses:
GR: 1 (subscribing witness / one who knows hwriting)
If no person appears to contest the allowance of the will, the
court may grant allowance thereof on the testimony of one
witness
E1: When notarial will is contested (76.11)
If the will is contested,
all the subscribing witnesses, and the notary,
in the case of wills executed under the Civil Code of the
Philippines,
IF present in the Philippines, and not insane,
must be produced and examined
E2: When HWill is contested: 3 Witnesses or Expert Witness
If a holographic will is contested,
the same shall be allowed
if at least 3 witnesses
who know the handwriting of the testator
explicitly declare that the will and the signature
are in the handwriting of the testator;
in the absence of any competent witness, and
if the court deem it necessary,
expert testimony may be resorted to.
- Who will and How to Testify:
A. Notarial Will
GR Uncontested: One of the subscribing witnesses only, if such
witness testifies that the will was executed as is required by law
Role of Attesting Witnesses: They are the best witnesses
and become forced witnesses to prove the will BUT
their declaration derogatory to the probate of the will
need not bind the proponent who may present other
proof of due execution even if contrary to the testimony
of some or all of the attesting witnesses (Vda. de Ramos)
Nature of Witness Reqt: Mandatory precisely bec. the
presence of at least 3 witnesses at the execution of
ordinary wills is made by law essential to their validity
(Azaola v. Singson)
IF Unavailable:
1. NON-RESIDENT IN PROVINCE (76.7): Deposition using Copy of
Will
If it appears at the time fixed for the hearing,
that none of the subscribing witnesses resides in the province,
but that the deposition of one or more of them
can be taken elsewhere, the court may, on motion,
direct it to be taken, and may
authorize a photographic copy of the will
to be made and to be presented to the witness on his
examination,
who may be asked the same questions
with respect to it and to the handwriting of the testator and
others,
14
as would be pertinent and competent if the original will were
present.
76.11: If all or some of such witnesses are present in
the Philippines
but outside the province where the will has been filed,
their deposition must be taken.
2. NON-RESIDENT OF PH, DEAD (76.8): Other Witnesses and
HWriting Proof
If it appears at the time fixed for the hearing,
that the subscribing witnesses
are dead or insane,* or that none of them resides in the
Philippines,
the court may admit
the testimony of other witnesses
to prove the sanity of the testator,
and the due execution of the will;
and it may admit proof of the handwriting
of the testator and of the subscribing witnesses, or of
any of them
as evidence of the execution of the will
*DEAD, INSANE (76.11): Prove it
death, absence, or insanity of any of them
must be satisfactorily shown to the court.
3. DOUBTFUL CREDIBILITY (76.11): Other evidence
If any or all of them
testify against the due execution of the will, or
do not remember having attested to it, or
are otherwise of doubtful credibility,
the will may, nevertheless, be allowed
if the court is satisfied
from the testimony of other witnesses and
from all the evidence presented
that the will was executed and attested in the manner required by
law.
B. HWill
GR: It shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that
the will and the signature are in the handwriting of the testator.
NCC 811: In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly
declare that the will and the signature are in the
handwriting of the testator xxx
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to.
E1: No Witness
In the absence of any such competent witness for HWills, and if
the court deem it necessary, expert testimony may be resorted
to.
NCC 811: In the absence of any competent witness
referred to in the preceding paragraph, and if the court
deems it necessary, expert testimony may be resorted
to.
E2: Testator himself petitions (76.12)
Where the testator himself petitions for the probate of his hwill
and
no contest is filed,
the fact that he affirms that the holographic will and the
signature
are in his own handwriting,
shall be sufficient evidence
of the genuineness and due execution thereof.
E3: When HWill is contested
R1: IF Petitioned by Others: 3 Witnesses or Expert Witness
If a holographic will is contested,
the same shall be allowed
if at least 3 witnesses
who know the handwriting of the testator
explicitly declare that the will and the signature
are in the handwriting of the testator;
in the absence of any competent witness, and
if the court deem it necessary,
expert testimony may be resorted to.
NCC 811: If the will is contested, at least three of such
witnesses shall be required.
Nature of 3 Witness Reqt: Not Compulsory, But only
Permissive BEC
a) No witness may have been present at the execution of
a HWill, none being reqd by law THUS the existence of
witnesses possessing the requisite qualifications is a
matter beyond the control of the proponent
15
 b) There may be no available witness acquainted with
the testators hand, or even if so familiarized, the
witnesses may be unwilling to give a positive opinion
(Azaola v. Singson)
R2: IF Petitioned by Testator (76.12): Burden of Proof
If the holographic will is contested,
the burden of disproving the genuineness and due execution
thereof
shall be on the contestant.
The testator may, in his turn, present such additional proof
as may be necessary to rebut the evidence for the contestant.
Purpose: to close the door against bad faith and fraud
to avoid substitution of the will
to guarantee their truth and authenticity (Vda. de Ramos v. CA)
Proof of Lost, Destroyed Will (76.6)
What to Prove:
- execution and validity of the same be established
- existence at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime of the
testator without his knowledge,
- provisions are clearly and distinctly proved by at least 2 credible
witnesses.
Requirement: the provisions thereof must be
distinctly stated and
certified by the judge, under the seal of the court, and
the certificate must be filed and recorded as other wills are filed and
recorded.
Applicability to HWills:
GR: Gan v. Yap: The law regards the document itself as material proof
of authenticity THUS When the will itself is not submitted, the only
guaranty of authenticity, i.e. the testators handwriting, has disappeared
Rodelas v. Aranza: If the HWill has been lost, destroyed and no
other copy is available, the will cannot be probated bec. the best and only
evidence is the handwriting of the testator in said will
E: Perhaps it may be proved by a photographic or photostatic
copy; a mimeographed or carbon copy; other similar means, if any,
whereby the authenticity of the handwriting of the decease may be
exhibited and tested before the probate court (Gan v. Yap FN 8; cited in
Rodelas)
HOW TO CONTEST WILL (76.10): Writing and Served
Anyone appearing to contest the will
must state in writing his grounds for opposing its allowance, and
serve a copy on the petitioner and other parties interested in the estate
APPROVAL OF WILL (76.13): Certificate of Allowance attached to Proved Will and
Both recorded in the Office of Register of Deeds.
If the court is satisfied, upon proof taken and filed,
-that the will was duly executed, and
-that the testator at the time of its execution was of sound and disposing mind,
and not acting under duress, menace, and undue influence, or fraud,
a certificate of its allowance,
signed by the judge, and
attested by the seal of the court
shall be attached to the will and
the will and certificate filed and recorded by the clerk.
Attested copies of the will devising real estate and of certificate of allowance thereof,
shall be recorded in the register of deeds
of the province in which the lands lie.
WHEN TO DISAPPROVE (76.9; NCC 839)
1. Law. If not executed and attested as required by law;
(1) If the formalities required by law have not been complied with;
2. Insane. If the testator was insane, or otherwise mentally incapable to make a will,
at the time of its execution;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution
3. Forced. If it was executed under duress, or the influence of fear, or threats;
(3) If it was executed through force or under duress, or the influence of fear, or
threats;
4. Fooled. If it was procured by undue and improper pressure and influence, on the
part of the beneficiary, or of some other person for his benefit;
(4) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
5. Fraud. If the signature of the testator was procured by fraud or trick, and he did
not intend that the instrument should be his will at the time of fixing his signature
thereto.
(5) If the signature of the testator was procured by fraud;
(6) Mistaken. If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto.
Nature of List: EXCLUSIVE (Guevara)
16
Remedies from Dis/Allowance of Will (Johnson)
a. Appeal > Subject to the right of appeal, such allowance of the will shall be
conclusive as to its due execution (75.1)
b. Annulment of Probate IF Probate of will is procured by fraud (Johnson)
Rationale: Once a will has been authenticated and admitted to probate,
questions relative to the validity thereof can no more be raised on appeal.
The decree of probate is conclusive with respect to the due execution
thereof and it cannot be impugned on any of the grounds authorized by
law, except that of fraud, in any separate or independent action
or proceeding (Manahan) (What about 109 and Marcos that wrong remedy
is dismissable?)
III. Allowance of Will Proved Outside of the Philippines (77)
What: 77.1: Wills proved and allowed in a foreign country, according to the laws
of such country, may be allowed, filed, and recorded by the proper Regional Trial
Court in the Philippines.
How (77.2)
a) Petition for Allowance in Ph + Duly Authenticated Copy of Will + Duly
Authenticated Copy of Foreign Order/Decree of Allowance thereof
BY: executor or other person interested
IN: court having jurisdiction
b) Fixing of Time and Place of Hearing by such court
c) Notice thereof to be given as in case of an original will presented for allowance
d) Hearing
When Approved (77.3): Certificate of Allowance
If it appears at the hearing that the will should be allowed in the Philippines,
the court shall so allow it, and
a certificate of its allowance,
signed by the judge, and
attested by the seal of the court,
to which shall be attached a copy of the will,
shall be filed and recorded by the clerk, and
the will shall have the same effect
as if originally proved and allowed in such court.
e) Administration (77.4)
When a will is thus allowed,
the court shall grant letters testamentary, or letters of administration
with the will annexed, and
such letters testamentary or of administration shall extend
to all the estate of the testator in the Philippines.
Such estate, after the payment of just debts and expenses of administration,
shall be disposed of according to such will,
so far as such will may operate upon it;
and the residue, if any, shall be disposed of
as is provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another state or country.
IV. Grant of Letters Testamentary and of Administration (78)
Who can and shall be Executor, Administrator
Executor:
Executor named in the will IF competent, accepts, bond (78.4)
Co-executors or them competent, accepts, bond (78.5)
When all of the executors named in a will cannot act
because of incompetency, refusal to accept the trust, or failure to give
bond,
on the part of one or more of them,
letters testamentary may issue to such of them
as are competent, accept and give bond, and
they may perform the duties and discharge the trust required by the will.
Nature of Testators Choice: RESPECTED BUT NOT BINDING!
GR: Choice of testator must not be interfered with
E: Appointed is incompetent, refuses the trust, fails to give bond Strict
proof of statutory grounds of incompetency (In re: Erlangers Estate in
Marcos)
BEC - choice is a precious prerogative of a testator
- it is a necessary concomitant of his right to dispose of his
property in the manner he wishes
- it is natural that the testator should desire to appoint one of his
confidence, one who can be trusted to carry out his wishes in the
disposal of his estate
- the curtailment of this right is curtailment of right to dispose
(Ozaeta v. Pecson in Maloles, Marcos)
BUT Not Binding, Auto BEC Still need for HEARING as to ascertain his
fitness to act as executor (Baluyut v. Pano)
Administrator (78.6):
Surviving spouse
Next of kin
- GR: Legit Heirs only BEC NCC 992: An illegitimate child has no right to
inherit ab intestato from the legitimate children and relatives of his father
or mother; nor shall such children or relatives inherit in the same manner
from the illegitimate child
- E: Illegit Grandchild as admin in Suntay BEC Decedent-Grandma did not
distinguish b/w her il/legit grandchildren and legally raised the status of
17
 their illegit grandchild to that of a legit child THUS peculiar circumstances
of the case OVERTHREW PRESUMPTION of NCC 992 that there exists
animosity, antagonism b/w il/legits
Both SS and Kin in the discretion of the court
Such person as such surviving spouse, or next of kin, requests to have
appointed IF competent and willing to serve
One or more of the principal creditors
IF competent and willing to serve
IF such surviving spouse or next of kin, (or the person selected by them),
be incompetent or unwilling (SS, kin, chosen), or
neglects for 30d after the death of the person (for ss, kin)
-to apply for administration or
-to request that administration be granted to some other person
Nature of 30d Period: PERMISSIVE
Failure is not sufficient to exclude SS from admin WHERE there
must be a very strong case to justify the exclusion (Gabriel v. CA)
Such other person as the court may select IF there is no such creditor
competent and willing to serve, it may be granted to
Nature of Preference: Mandatory but not Absolute
GR: GAD for PC to imperiously set aside and insouciantly ignore the
directive of the law without any valid and sufficient reason therefor
(Gabriel v. CA)
E: Disregard Order IF, depending on Attendant Facts, Circumstances, those
preferred are not competent or unwilling to serve (Silverio v. CA; Suntay
v. Cojuangco-Suntay)
Who selects Admin: COURT
- Selection of Admin lies within discretion of Court (Capistrano v.
Nadurata)
- Determination of a persons suitability for the office of judicial
administrator rests, to a great extent, in the sound judgment of the court
exercising the power of appointment and said judgment is not to be
interfered with on appeal unless said court is clearly in error (Lim; Gabriel;
Coque v. Garcia in Silverio)
- ROC gives lower court the duty and discretion to determine whether, in its
opinion, an individual is unfit to serve as an executor WHERE the
sufficiency of any ground for removal should thus be determined by the
said court WHOSE sensibilities are affected by any act, omission on the
part of the administrator not conformable to or in disregard of the rules or
orders of the court THUS Appellate Court disinclined to interfere with
action of PC in matter of removal of executor (Marcos)
Principal Consideration in Choice
Interest in estate of person to be appointed as admin BEC those who will
reap benefit of a wise, speedy, economical administration of the estate, or
suffer the consequences of waste, improvidence, mismanagement have the
highest interest and most influential motive to administer the estate
correctly THUS One who has GREATER INTEREST in estate is preferred to
another who has less (Gabriel; Vda de la Rosa v. Heirs of Vda. de Damian in
Suntay)
Nature of Interest: Beneficial Interest required as a qualification
for appt as admin is the interest in the whole estate and not only
on some part thereof (Roxas v. Pecson)
Married woman may serve as executrix or administratrix, and the marriage
of a single woman shall not affect her authority so to serve under a
previous appointment (78.3)
How many to appoint
GR: only one general admin may be appointed to administer, liquidate,
distribute the estate of a deceased person (Roxas v. Pecson)
Propriety of Co-Administration
- There is no reason why more than one admin may not be appointed for
the benefit of the estate and those interested therein since that is both
legally permissible (in 78.6.a allowing both SS and next of kin to be admin)
and sanctioned in practice (Gabriel)
- The order of preference (in 78.6) does not rule out the appt of co-admins,
specially in cases where justice and equity demand that opposing parties
or factions be represented in the management of the estate of the deceased
(Vda. De la Rosa v. Vda. de Damian in Suntay)
Rationale for Allowing Co-Admin: Representation, Difficulty (Gabriel)
- to have the benefit of their judgment and perhaps at all times to have
different interests represented
- where justice and equity demand that opposing parties or factions be
represented in the management of the estate of the deceased
- where the estate is large or, from any cause, an intricate and perplexing
one to settle
- to have all interested persons satisfied and the representative to work in
harmony for the best interests of the estate
- when a person entitled to the administration of the estate desires to have
another competent person associated with him in the office
Scope of Co-Administrators: Entire Estate (Gabriel)
Even if designated to administer only a portion of the estate, he is no less
an administrator of the whole estate because his judicious management of
a mere parcel enhances the value of the entire estate, while his inefficient
or corrupt administration necessarily diminishes the value of the whole
estate
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Who cannot be Executor, Administrator (78.1) - No person is competent to serve as
executor or administrator who:
Minor
Not a resident of the Philippines
Unfit in the opinion of the court, to execute the duties of the trust
by reason of
drunkenness,
improvidence, or
want of understanding or integrity, or
conviction of an offense involving moral turpitude
MORAL TURPITUDE: FRAUDULENT INTENT
- an act of baseness, vileness, depravity in the private duties
which a man owes his fellow men or to society in general,
contrary to the accepted and customary rule of right and duty
between man and woman (Black in Villaber v. COMELEC, in
Marcos)
- conduct contrary to justice, honesty, modesty, good morals (id)
- all crimes of which fraud is an element (De Jesus-Paras, in
Marcos)
Scope of UNFITNESS
- One is unsuitable for appointment as administrator when he has
adverse interest of some kind or hostility to those immediately
interested in the estate (Lim v. Diaz-Millarez; in Medina; Coque v.
Garcia in Silverio)
- Person with an adverse conflicting interest is unsuitable for
the trust reposed in an administrator of an estate (Medina v. CA)
Why unfit if adversely interested
- An admin is deemed unsuitable and should be removed where
his personal interests conflict with his official duties, by virtue of
the equally established principle that an admin is a quasi-
trustee, disqualified from acquiring properties of the estate, and
who should be indifferent between the estate and claimants of
the property except to preserve it for due administration, and
who should be removed when his interest conflicts with such
right and duly (Medina)
- He will be placed in an unduly favored position where he may
use his position as (special) admin to favor his personal interests
(as one interested in the purchase of the property for himself)
and grave prejudice may thus be inflicted by him on the heirs
(Medina)
Who determines Unfitness: COURT
- Removal of admin does not lie on the whims, caprices, dictates
of heirs or beneficiaries of estate (Gabriel)
- Determination of a persons suitability for the office of judicial
administrator rests, to a great extent, in the sound judgment of
the court exercising the power of appointment and said judgment
is not to be interfered with on appeal unless said court is clearly
in error (Lim; Gabriel; Coque v. Garcia in Silverio)
- ROC gives lower court the duty and discretion to determine
whether, in its opinion, an individual is unfit to serve as an
executor WHERE the sufficiency of any ground for remove should
thus be determined by the said court WHOSE sensibilities are
affected by any act, omission on the part of the administrator not
conformable to or in disregard of the rules or orders of the court
THUS Appellate Court disinclined to interfere with action of PC in
matter of removal of executor (Marcos)
- Selection of Admin lies within discretion of Court (Capistrano v.
Nadurata)
- BUT! While PC has discretion in removal of admin, it must,
however, have SOME FACT LEGALLY BEFORE IT in order to
justify such removal. ie evidence of act, omission on part of admin
not conformable to or in disregard of the rules or orders of the
court which it deems sufficient, substantial to warrant the
removal of the admin THUS mere importunity by some of the
heirs, there being no factual or substantial bases therefor, is not
adequate ratiocination for the removal of the admin (Gabriel)
Clerk of Court, Other court ees
BEC objectivity and impartiality as admin
in discharging their regular functions
may easily be compromised by extraneous considerations
WHAT IF EXECUTOR DIES (78.2): Executor of an executor shall not, as such,
administer the estate of the first testator.
WHEN LA GRANTED (78.6)
person dies intestate
no executor is named in the will, or
executor/s are
o incompetent,
o refuse the trust, or
o fail to give bond, or a
How LA Issued (79.1)
Why Impt: You need LA to be admin, NOT just by acting like one (Quasha)
19
 Quasha: While the law office rendered legal services for the settlement of
the estate of Triviere since the time of Atty. Quashas death, it did not serve
as co-admin therof, granting that it was never issued LA
1) Petition for LA
CONTENT
- 79.1: state in writing the grounds why letters testamentary should not issue
to the persons named therein as executors, or any of them
- 79.2: Contents show, so far as known to petitioner:
Jurisdictional facts;
Names, ages, and residences of the heirs
Names and residences of the creditors
Probable value and character of the property of the estate
Name of the person for whom letters of administration are prayed
EFFECT OF DEFECT IN PETITION: NOT VOID (79.2)
No defect in the petition shall render void the issuance of LA
2) Notice for Hearing (79.3)
When a petition for letters of administration is filed
in the court having jurisdiction,
such court
-shall fix a time and place for hearing the petition, and
-shall cause notice thereof to be given
-to the known heirs and creditors of the decedent, and
-to any other persons believed to have an interest
in the estate,
in the manner provided in sections 76.3 and 76.4:
GR: cause notice of such time and place to be published 3
weeks* successively, previous to the time appointed, in a
newspaper of general circulation in the province
E: But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
*Meaning of 3 Week Publication: Does not mean that the notice
should be published for three full weeks before the date set for
the hearing on the will. The first publication of the notice need
not be made 21 days before the day appointed for the hearing
(Basa v. Mercado)
-shall also cause copies of the notice of the time and place fixed to be
addressed
To: (76.4)
a. designated or other known heirs, legatees, and devisees of
the testator resident in the Philippines at their places of
residence
How:
1. deposited in the post office with the postage thereon
prepaid at least 20 days before the hearing, if such
places of residence be known.
2. Personal service of copies of the notice at least 10
days before the day of hearing shall be equivalent to
mailing
b. person named as executor, if he be not the petitioner, also, to
any person named as co-executor not petitioning, if their places
of residence be known
How:
1. A copy of the notice must in like manner be mailed
with the postage thereon prepaid at least 20 days before
the hearing, if such places of residence be known
2. Personal service of copies of the notice at least 10
days before the day of hearing shall be equivalent to
mailing
c. If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs (76.4)
3) Opposition to LA (79.1; 79.4)
Who: Any Interested Person
INTERESTED PERSON (Maloles)
- One who would be benefited by the estate, eg heir
- One who has a claim against the estate, eg creditor
- One whose interest is material and direct,
not merely incidental, contingent
Nature of Interest: Must be material and direct so that he will be materially
and directly benefited or injured by the courts order, and NOT indirect,
contingent interest FOR party to appeal (Trillana v. Crisostomo)
Effect of Assignment of Interest (Duran v. Duran)
- Pendente Lite of Settlement Proceedings: No effect on right of assignor
BEC PC already acquired jurisd thus
any assignment must be approved and
not deemed final until estate is closed
- Before Settlement Proceedings: Assignor no longer interested person
- Remedy: Annul, Rescind assignment
20
 How: Appt of Special Administrator (Refer to V): Discretionary
- filing a written opposition to contest the petition
GROUNDS Nature of Decision: Appealable to CA via 109 as QFact
- incompetency of the person for whose letters are prayed therein Propriety of granting LA does not fall within any ground which can be the
- contestants own right to the administration subject of a direct appeal to the SC (Rep. v. Marcos)
- petition for LA or pray that letter issue to himself, or to any competent
person/s named in the opposition Conversion of Proceedings for LA to Testate Proceedings: LA REVOKED
79.1 A petition may, at the same time, be filed for letters of administration After the will is probated, the prior LA should be revoked and proceedings for the
with the will annexed issuance of letters testamentary or LA under the will should be conducted (Baluyut
v. Pano)
4) Hearing on Petition (79.5)
Reqt? 79.1: Court, after hearing upon notice Scope of Courts Jurisdiction: Court can compel heirs in possession (of personal
property) to deliver (them) to the administrator of the estate BEC Court has
What to Prove jurisdiction over the funds of the estate / residuary funds in the hands of the heirs
Compliance with Notice Reqt (Hernandez v. Clapis)
At the hearing of the petition, it must first be shown that notice has been
given as hereinabove required 6) Payment of Bond (81)
Proof of Allegations Nature of Bond: a qualification for the office of administration, and should NOT be
and thereafter the court shall hear the considered as part of the necessary expenses chargeable against the estate BEC not
proofs of the parties in support of their respective allegations included among the acts constituting the care, mgt, settlement of the estate

Effect of Failure to Appear at Hearing (79.6) When to Give Bond (81.1)

LA may be granted to any qualified applicant, - GENERAL RULE: Before
though it appears that there are other competent persons an executor or administrator enters upon the execution of his trust, and
having better right to the administration, letters testamentary or of administration issue
IF such persons fail to appear
when notified and claim the issuance of letters to themselves - EXCEPTIONS:
1. When Provided by Testator in Will (81.2)
How LA Issued: AFTER HEARING If the testator in his will
Although SS enjoys preference in granting of LA, it does not follow that SS directs that the executor serve
should be named admin without conducting a FULL-DRESS HEARING ON without bond, or with only his individual bond,
HIS/HER COMPETENCY to discharge the trust WHERE Appointed is given he may be allowed by the court to give bond
opportunity to prove his qualifications (Baluyut v. Pano) in such sum and with such surety as the court approves
conditioned only to pay the debts of the testator;
5) Court Order but the court may require of the executor
Reqt? 79.1: Court shall pass upon the sufficiency of such grounds a further bond in case of a change in his circumstances, or
that decedent left no will, or that there is no competent and willing executor for other sufficient cause,
with the conditions named in 81.1
What: Order the issuance of letters of administration
to the party best entitled thereto 2. Joint Administrators (81.3)
When two or more persons are appointed executors or administrators
WHEN LA ISSUED (78.4): When a will has been proved and allowed, the court may take
the court shall issue letters testamentary thereon a separate bond from each, or
to the person named as executor therein, a joint bond from all.
if he is competent, accepts the trust, and gives bond
as required by these rules
How Much (81.1): in such sum as the court directs

21
For What Conditions (81.1)
(a) To make and return to the court,
within three months,
a true and complete inventory
of all goods, chattels, rights, credits, and estate of the deceased
which shall come to his possession or knowledge or
to the possession of any other person for him;
(b) To administer
according to these rules, and, if an executor, according to the will,
all goods, chattels, rights, credits, and estate
which shall at any time come
to his possession or
to the possession of any other person for him, and
to pay and discharge
all debts, legacies, and charges on the same, or such dividends thereon
from the proceeds
as shall be decreed by the court;
(c) To render a true and just account of his administration
to the court
within one year, and at any other time when required by the court;
(d) To perform all orders of the court by him to be performed.
Purpose of Bond (Ocampo)
- to benefit the creditors and heirs BEC it compels the admin to perform the trust
reposed in him and to discharge the obligs incumbent upon him
- to safeguard the props
Effect of Bond Reqt
- Admin is accountable on his bond along with the sureties for the performance of
certain legal obligations (Cosme de Mendoza v. Pacheco)
- Court can hold bond accountable for any breach of the admins duty > While law
does not say expressly that PC has power to execute the bond, the power is there as
eloquently as if it were phrased in unequivocal terms by necessary and logical
implication > THUS Not reqd to execute in a separate proceeding (id)
- Remedy of Surety: Can be admitted as a party to the accounting BEC he may be
charged with liability upon the bond BEC Execution of an admins bond clearly
stands upon a different footing and is as necessary a part and incident of the
administration proceedings as the filing of such bond or the fixing of its amt (id)
Basis: Incidental powers of PC, reasonably necessary to enable them to
accomplish the objects for which they were invested with jurisd and to perfect
the same
7) Removal and Revocation
1. Subsequent Approval of Will (82.1)
If pending the issuance or after letters of administration have been granted
on the estate of a decedent as if he had died intestate,
his will is proved and allowed by the court,
Effects:
the letters of administration shall be revoked and
all powers thereunder cease and
the administrator shall forthwith
surrender the letters to the court, and
render his account within such time as the court directs.
2. Removal by Court, Resignation (82.2)
- Removal, Resignation: court may remove him, or, in its discretion, may permit him
to resign IF an executor or administrator
-neglects to render his account and settle the estate according to law, or
to perform an order or judgment of the court, or
a duty expressly provided by these rule, or
-absconds, or
-becomes insane, or otherwise incapable or unsuitable to discharge the
trust
*Not an exclusive list
3. Death (82.2)
Effects when an executor or administrator dies, resigns, or is removed
- the remaining executor or administrator may administer the trust alone,
unless the court grants letters to someone to act with him
- If there is no remaining executor or administrator, administration may be granted
to any suitable person (82.2) (Will it require notice, hearing?)
Effects on Administration
- Valid Acts of Former (82.3)
The lawful acts of an executor or administrator
before the revocation of his letters testamentary or of administration, or
before his resignation or removal,
shall have the like validity
as if there has been no such revocation resignation, or removal.
- Continued by the Newer (82.4)
The person to whom letters testamentary or of administration are granted
after the revocation of former letters, death, resignation, removal
-shall have the like powers to collect and settle the estate not administered
that the former executor or administrator had, and
-may prosecute or defend actions
commenced by or against the former executor or administrator, and
-have execution on judgments
recovered in the name of such former executor or administrator;
-sale or mortgage real estate
where court renews an authority granted by it
to the former executor administrator
in favor of new admin without further notice or hearing (82.4)
Nature of Decision to Remove: final THUS appealable
22
 V. Appointment of Special Administrator (80)
GOVERNING LAW: Selection, Removal of SA is not governed by the rules regarding
the selection, removal of regular admins (Castillo; Roxas; Ocampo)
Implication: Issue of Un/Fitness, Order of Preference do not obtain
(Ocampo)
Who is a SPECIAL ADMINISTRATOR:
- He is a representative of a decedent appointed by the probate court to care for and
preserve his estate until an executor or GA is appointed (Heirs of Castillo)
- When appointed, a SA is regarded not as a representative or the agent of the
parties suggesting the appt, but as the administrator in charge of the estate and, in
fact, as an officer of the court (Castillo; cited in Ocampo v. Ocampo)
Supervision: As such officer, he is subject to the supervision and control of
the PC and is expected to work for the best interests of the entire estate,
especially its smooth administration and earliest settlement (Castillo;
Ocampo)
WHO TO APPOINT (80.1): Court discretion
- Judge, Court has discretion in the selection of the person to be appointed, but
discretion must be sound, not whimsical or contrary to reason, justice, or equity
(Roxas; Castillo)
- Law does not say who shall be appointed as SA (Roxas v. Pecson)
- Preference under 78.6 NA (Roxas; Heirs of Castillo v. Lacuata-Gabriel)
How many to appoint: Co-Administrators, NOT Administration
GR: only one general admin may be appointed to administer, liquidate,
distribute the estate of a deceased person
THUS it clearly follows that only one SA may be appointed to administer
temporarily said estate bec a SA is but a temporary admin who is
appointed to act in lieu of the GA (Roxas where oen SA for some props and
another SA for other props)
Matias v. Gonzales: One Special Administration but such powers are
exercised jointly by two Special Co-Administrators
Nature of Appt: Interlocutory
Appt, Removal of SA, being discretionary, is thus interlocutory (Ocampo)
Effect: Assailable via 65
WHEN TO APPOINT SA
When there is delay in granting letters testamentary or of administration
by any cause including an appeal from the allowance or disallowance of a will
(80.1)
If the executor or administrator has a claim against the estate he represents
he shall give notice thereof, in writing, to the court, and
the court shall appoint a special administrator (86.8)
Why: In many instances, the appt of admins frequently become involved in
protracted litigations, thereby exposing such estates to great waste and
losses unless an authorized agent to collect the debts and preserve the
assets in the interim is appointed (Heirs of Castillo)
WHY APPOINT SA / PURPOSES AND POWERS OF SA: To collect and preserve
to take possession and charge of the estate of the deceased until
-the questions causing the delay are decided and
-executors or administrators appointed (80.1)
to take possession and charge
of the goods, chattels, rights, credits, and estate of the deceased and
preserve the same for the executor or administrator afterwards appointed
commence and maintain suits as administrator for the purpose of preserving
sell only such perishable and other property as the court orders sold
Why allowed to sell: It is not alone the specific property of the estate which
is to be preserved but its value as well (Estate of Idonah Perkins)
Effect of Court Order: not be liable to pay any debts of the deceased unless
so ordered by the court
BUT! Can be Defendant in Suit: ROC do not expressly prohibit making the
SA a defendant in a suit against the estate
OTHERWISE Creditors would find the adverse effects of the statute of
limitations running against them in cases where the appt of a regular
admin is delayed (Liwanag v. CA)
have the same power and be subject to the same liability
in the adjustment of the claim of the admin or executor
as the general administrator or executor in the settlement of other claims
The court may order the executor or administrator
to pay to the special administrator
necessary funds to defend such claim (86.8)
DURATION/TERMINATION OF POWERS (80.3)
- When letters testamentary or admin are granted on the estate of the deceased
Effect on Powers of SA
the powers of the special administrator shall cease,
he shall forthwith deliver to the executor or administrator the goods,
chattels, money, and estate of the deceased in his hands
executor or administrator may prosecute to final judgment suits
commenced by such special administrator
- When revoked by the court on grounds of reason, equity, justice, legal principle
WHERE once the PC finds the appointees no longer entitled to its confidence, it is
justified in withdrawing the appt (Ocampo)
23
Bond Reqt (81.4) shall not be considered as assets, nor administered as such, and
A special administrator shall not be included in the inventory.
before entering upon the duties of his trust
shall give a bond,
in such sum as the court directs, 2. ACCOUNTING > Mandatory, NOT Waivable
conditioned Every executor or administrator
- that he will make and return a true inventory -shall render an account of his administration
of the goods, chattels, rights, credits, and estate of the deceased within one year from the time of receiving LTA,
which come to his possession or knowledge, and unless the court otherwise directs
- that he will truly account for such as are received by him because of extensions of time
when required by the court, and for presenting claims against, or
- that he will deliver the same paying the debts of, the estate, or for
to the person appointed executor or administrator, or disposing of the estate; and
to such other person as may be authorized to receive them. -shall render such further accounts as the court may require
until the estate is wholly settled (85.8)

VI. Duties of Administrators 5 Reqts Before Approval

> Preserve and Maintain Props - Notice of Examination (85.10)
Before the account of an executor or administrator is allowed,
1. INVENTORY AND APPRAISAL (83) notice shall be given to persons interested
What to file of the time and place of examining and allowing the same; and
a true inventory and appraisal such notice may be given
of all the real and personal estate of the deceased personally to such persons interested or
which has come into his possession or knowledge. by advertisement in a newspaper or newspapers, or
In the appraisement of such estate, both, as the court directs. (85.10)
the court may order one or more of the inheritance tax appraisers
to give his or their assistance. - Hearing (Exam under Oath by Court of E/A, Heirs, Creditors) (85.9)
The court may examine the executor or administrator upon oath
By whom and To whom with respect to every matter relating to any account rendered by him, and
every executor or administrator shall return to the court shall so examine him as to the correctness of his account
before the same is allowed,
When to file except when no objection is made to the allowance of the account and
Within three months after his appointment (83.1) its correctness is satisfactorily established by competent proof.
Nature of 3m Reqt: NOT JURISDICTIONAL
Not mandatory BEC PC already acquires jurisd over estate upon filing of The heirs, legatees, distributees, and creditors of the estate
pet. for LA and publication of notice of hearing and retains that jurisd until shall have the same privilege as the executor or administrator
the proceeding is closed. The fact that an inventory was filed after the 3m of being examined on oath
pd. would not deprive the PC of jurisd to approve it. However, an admins on any matter relating to an administration account.
unexplained delay in filing the inventory may be a ground for his removal
(Sebial v. Sebial) > There must be Notice, Hearing > JURISDL! Not ex parte

What NOT to include (83.2) - Supplementary Account (Tumang v. Laguio)

-wearing apparel of the surviving husband or wife and minor children, Executor, admin who receives assets of the estate after he has filed an
-marriage bed and bedding, and account and may be compelled to do render a supp acct BUT that it is only
-such provisions and other articles with respect to matters occurring after the settlement of final account IN
as will necessarily be consumed in the subsistence of family of deceased, CONSONANCE with his duty to account for ALL the assets of the decedents
under the direction of the court, estate which have come into her possession by virtue of her office

24
 Rationale:
- Duty to render an account is not a mere incident of an
administration proceeding which can be waived or disregarded
BUT a duty that has to be performed and duly acted upon by the
court before the administration is finally ordered closed and
terminated to the end that no part of the estate be left
unaccounted for
- The fact that the final accounts had been approved does not
divest the court of jurisd to require supplemental acctg BEC aside
from the initial acctg, the ROC provide that he shall render such
further accounts as the PC may require until the estate is wholly
settled
- Right of Surety (85.11)
Upon the settlement of the account of an executor or administrator,
a person liable as surety in respect to such account
may, upon application, be admitted as party to such accounting
- Remedy from Denial of M for E/A to Render an Acctg: Interlocutory Order
THUS Certiorari (Punongbayan v. Punongbayan)
Why Interlocutory:
- E/As accountability as admin was in no way settled as it did not
preclude, forestall future acctgs by him which he is obliged to
render
- Acctg is in the nature of fact-finding inquiries intended to elicit
info, evi relative to estate props
3. ALLOWANCE TO WIDOW AND FAMILY (83.3)
The widow and minor or incapacitated children of a deceased person, > Exclusive
during the settlement of the estate,
shall receive therefrom,
under the direction of the court, > COURT is PC (Heirs of Sy Bang)
such allowance as are provided by law.
COURT is PC BEC it is the court hearing the settlement of the estate that
should effect the payment of widows allowance considering that the
properties of the estate are within its jurisdiction, to the exclusion of all
other courts, e.g. guardianship court which has limited jurisd only (Heirs of
Sy Bang v. Sy)
FC 133. From the common mass of property
support shall be given to the surviving spouse and to the children
during the liquidation of the inventoried property and
until what belongs to them is delivered;
but from this shall be deducted
that amount received for support
which exceeds the fruits or rents pertaining to them.
What is SUPPORT
- Everything that is indispensable
for sustenance, dwelling, clothing and medical attendance,
according to the social position of the family.
- Education of the person entitled to be supported
until he completes his education or training for some profession, trade or vocation,
even beyond the age of majority (NCC 290)
Who is Reqd to Give Support to EACH OTHER (NCC 291)
(1) The spouses;
(2) Legitimate ascendants, and descendants;
(3) Parents, and acknowledged natural children and the legitimate or illegitimate
descendants of the latter;
(4) Parents, and natural children by legal fiction and the legitimate and illegitimate
descendants of the latter;
(5) Parents, and illegitimate children who are not natural
(6) Brothers and sisters owe their legitimate and natural brothers and sisters,
although they are only of the half-blood, the necessaries for life, when by a physical
or mental defect, or any other cause not imputable to the recipients, the latter
cannot secure their subsistence. This assistance includes, in a proper case, expenses
necessary for elementary education and for professional or vocational training.
Order of Support (NC 294)
The claim for support, when proper and two or more persons are obliged to give it,
shall be made in the following order:
(1) From the spouse;
(2) From the descendants of the nearest degree;
(3) From the ascendants, also of the nearest degree;
(4) From the brothers and sisters.
(5) Among descendants and ascendants the order in which they are called to the
intestate succession of the person who has a right to claim support shall be
observed.
Nature of Obligation: GR Joint / E Solidary (NCC 295)
When the obligation to give support falls upon two or more persons,
the payment of the same shall be divided between them
in proportion to the resources of each.
However, in case of urgent need and by special circumstances,
the judge may order only one of them to furnish the support provisionally,
without prejudice to his right to claim from other obligors the share due from them.
When two or more recipients at the same time claim support
from one and the same person legally obliged to give it,
and the latter should not have sufficient means to satisfy all,
the order established in the preceding article shall be followed,
unless the concurrent obligees
25
 should be the spouse and a child subject to parental authority,
in which case the latter shall be preferred.
Amount of Support (NCC 296):
The amount of support, in the cases referred to in the five numbers of 291,
shall be in proportion to the resources or means of the giver and
to the necessities of the recipient.
When Amt Adjusted (NCC 297)
Support in the cases referred to in the preceding article
shall be reduced or increased proportionately,
according to the reduction or increase of
the needs of the recipient and
the resources of the person obliged to furnish the same.
When is Support Demandable (NCC 298)
From the time the person who has a right to receive the same
needs it for maintenance,
but it shall not be paid except from the date it is extrajudicially demanded.
Payment shall be made monthly in advance, and
when the recipient dies, his heirs shall not be obliged to return
what he has received in advance.
How to Give Support (NCC 299)
The person obliged to give support may, at his option,
fulfill his obligation either by
-paying the allowance fixed, or
-receiving and maintaining in his house
the person who has a right to receive support.
The latter alternative cannot be availed of
in case there is a moral or legal obstacle thereto.
Termination of Support (NCC 300)
(0) The obligation to furnish support ceases upon the death of the obligor,
even if he may be bound to give it in compliance with a final judgment.
(1) Upon the death of the recipient (303)
(2) When the resources of the obligor have been reduced to the point where he
cannot give the support without neglecting his own needs and those of his family;
(3) When the recipient may engage in a trade, profession, or industry, or has
obtained work, or has improved his fortune in such a way that he no longer needs
the allowance for his subsistence;
(4) When the recipient, be he a forced heir or not, has committed some act which
gives rise to disinheritance;
(5) When the recipient is a descendant, brother or sister of the obligor and the need
for support is caused by his or her bad conduct or by the lack of application to work,
so long as this cause subsists.
Transferability of Support (NCC 301)
The right to receive support cannot be
-renounced, nor
-transmitted to a third person, nor
-compensated with what the recipient owes the obligor.
E: Support in arrears may be compensated and renounced, and
the right to demand the same
may be transmitted by onerous or gratuitous title.
-cannot be attached or executed against (NCC 302):
neither the right to receive legal support
nor any money or property obtained as such support or
any pension or gratuity from the government
is subject to attachment or execution.
Support During Separation, Annulment (NCC 292)
During the proceedings for legal separation, or for annulment of marriage,
the spouses and children, shall be supported from conjugal partnership property.
After the final judgment of legal separation, or of annulment of marriage,
the obligation of mutual support between the spouses ceases.
However, in case of legal separation,
the court may order that the guilty spouse shall give support to the innocent one,
the judgment specifying the terms of such order.
Expenses of Litigation (NCC 293):
In an action for legal separation or annulment of marriage,
attorney's fees and expenses for litigation
shall be charged to the conjugal partnership property, unless the action
fails.
4. IN GENERAL (84)
- Re: Partnership (84.1)
The executor or administrator of the estate of a deceased partner
shall at all times have access to, and may examine and take copies of,
books and papers relating to the partnership business, and
may examine and make invoices
of the property belonging to such partnership; and
may request the surviving partner or partners
that they exhibit to him
all such books, papers, and property in their hands or control.
OTHERWISE
On the written application of such executor or administrator,
the Court having jurisdiction of the estate
-may order any such surviving partner or partners
to freely permit the exercise of the rights, and
to exhibit the books, papers, and property, as in this section provided, and
-may punish any partner failing to do so for contempt.
> Court Approval Reqd BEC Acts of dominion
26
- Re: Buildings (84.2)
An executor or administrator shall
maintain in tenantable repair
the houses and other structures and fences belonging to the estate, and
deliver the same in such repair
to the heirs or devisees
when directed so to do by the court.

> Court Approval Reqd BEC

-Acts of dominion
-Once an action for settlement of estate is filed with the court, the props
included therein are under the control of the intestate court, and not even
the admin may take possession of any property that is part of the estate
without the prior authority of the court (Silverio v. CA)
Implication: Admin without power to deliver props and
possession to heirs without order of court which arises only after
payment of debts against estate

> Power to Lease Prop (Jocson de Hilado v. Nava)

Admin can execute a contract of lease without PCs intervention BEC it is a
mere act of administration THUS could validly be entered into by the
admin within her powers of administration, even w/o previous court
authority > Court has no power to annul, invalidate the contract BEC no
jurisd over lessee BUT separate ordinary action is necessary

- Re: Possession and Mgt of Estate (84.3)

An executor or administrator
shall have the right to the possession and management
of the real as well as the personal estate of the deceased
so long as it is necessary
for the payment of the debts and the expenses of administration. >IMPT!
> Purpose of possession must be specified (Estate of Ruiz v. CA)

MALADMINISTRATION
eg: Pretended ignorance of the necessity of a book, ledger, list of chronological and
dated entries of money or produce the intestate acquired and the amount of
disbursement made for the same props; lack of even a list of the names of the lessees
of the prop under his admin; lack of list of those who owed back rentals; mixing
funds of the estate under his admin with his personal funds (Borja v. Borja)

Effects: Accountable for loss, damage to estate (Borja)

27
Chargeable v. Administrator (Personally) [Debit Admin, Credit Estate]: E-WERC Chargeable v. Estate [Debit Estate, Credit Admin]: Not liable for losses DJ-UC
Except as otherwise expressly provided in the following sections, No executor or administrator
every executor or administrator is chargeable in his account shall profit by the increase, or
with the whole of the estate of the deceased suffer loss by the decrease or destruction, without his fault,
which has come into his possession, of any part of the estate. (85.2)
at the value of the appraisement contained in the inventory;
with all the interest, profit, and income of such estate; and
with the proceeds of so much of the estate as is sold by him,
at the price at which it was sold. (85.1)
When he sells any part of the estate If any part of the estate is sold
for more than the appraisement for less than the appraisement,
he must account for the excess (85.2) he is not responsible for the loss,
if the sale has been justly made. (85.2)
If the executor or administrator uses or occupies any part of the real estate himself, If he settles any claim against the estate
he shall account for it for less than its nominal value,
as may be agreed upon between him and the parties interested, or he is entitled to charge
adjusted by the court with their assent; and in his account
if the parties do not agree upon the sum to be allowed, only the amount
the same may be ascertained by the court, he actually paid
whose determination in this respect shall be final. (85.4) on the settlement. (85.2)
When an executor or administrator No executor or administrator shall be accountable
-neglects or unreasonably delays to raise money, by for debts due the deceased
collecting the debts or which remain uncollected
selling the real or personal estate of the deceased, or without his fault. (85.3)
-neglects to pay over the money he has in his hands, and
-the value of the estate is thereby lessened or
-unnecessary cost or interest accrues, or
-the persons interested suffer loss,
the same shall be deemed waste and
the damage sustained may be charged and allowed against him in his account,
he shall be liable therefor on his bond. (85.5)
The amount paid by an executor or administrator The amount paid by an executor or administrator
for costs awarded against him for costs awarded against him
shall not be allowed in his administration account, shall be allowed in his administration account,
if it appears that the action or proceeding in which the costs are taxed unless it appears that the action or proceeding in which the costs are taxed
was prosecuted or resisted was prosecuted or resisted
without just cause, and not in good faith. (85.6) without just cause, and not in good faith. (85.6)
Expense incurred GR: Provision in the Will / E: Renounces THUS P4 or Commission (Increasable with difficulty)
by an executor or administrator
to produce a bond An executor or administrator shall be allowed
is not a proper charge against the estate the necessary expenses in the case, management, and settlement of the estate, and
BEC the ability to give bond -four pesos per day
is in the nature of a qualification for office (Sison v. Teodoro) for his services,
for the time actually and necessarily employed, or

-a commission [2% of P5k + 1% of > P5k-P30k / .5% of >P30k-P100k / .25% of > P100k]
upon the value of so much of the estate
-as comes into his possession and
-is finally disposed of by him
in the payment of debts, expenses, legacies, or distributive shares, or
by delivery to heirs or devisees,
of two per centum of the first five thousand pesos of such value,

28
one per centum of so much of such value
as exceeds five thousand pesos and does not exceed thirty thousand pesos,
one-half per centum of so much of such value
as exceeds thirty thousand pesos and
does not exceed one hundred thousand pesos, and
one-quarter per centum of so much of such value
as exceeds one hundred thousand pesos.

But in any special case,

where the estate is large, and
the settlement has been attended with great difficulty, and
has required a high degree of capacity
on the part of the executor or administrator,
a greater sum may be allowed.

If objection to the fees allowed be taken,

the allowance may be re-examined on appeal.

If there are two or more executors or administrators,

the compensation shall be apportioned among them
by the court according to the services actually rendered by them respectively.

When the executor or administrator is an attorney,

he shall not charge against the estate
any professional fees for legal services rendered by him.

When the deceased by will

makes some other provision for the compensation of his executor,
that provision shall be a full satisfaction for his services
unless by a written instrument filed in the court
he renounces all claim to the compensation provided by the will. (85.7)

29
Attorneys Fees in Probate Proceedings: Depends on who is client
- Uy Tioco v. Imperial: Estate cannot be held directly liable for AF for services
rendered to the executor, admin to assist him in the execution of his trust BEC the
liability for the payment rests on the executor, admin and such fees are allowed to
the executor, admin and not to the atty BUT executor, admin can reimburse from
estate IF AF are beneficial to the estate and reasonable
- Rodriguez v. Ynza: Atty. Tirol, as counsel for trustee, had rendered services for the
benefit of the estate THUS estate is liable directly
ACTIONS BY/AGAINST EXECUTORS, ADMINISTRATORS (87)
> applies only when Admin has already been appointed (Rioferio v. CA)
CANNOT BE BROUGHT AGAINST E/A
- Action upon a claim for the recovery of money or debt or interest thereon (87.1)
- Action to recover the title or possession of lands or for damages done to
entrusted lands (when an executor or administrator is appointed and assumes the
trust) maintained against him by an heir or devisee UNTIL
there is an order of the court assigning such lands to such heir or devisee,
the time allowed for paying debts has expired (87.3)
CAN BE BROUGHT AGAINST E/A
- Actions to recover real or personal property, or an interest therein, from the
estate (87.1)
- Actions to enforce a lien on real or personal property, or an interest therein (87.1)
- Actions to recover damages for an injury to person or property, real or personal
(87.1)
CAN BE BROUGHT/DEFENDED BY E/A IN THE RIGHT OF THE DECEASED
a) Actions for causes which survive for the recovery or protection of the property or
rights of the deceased (87.2)
When Heirs have Standing
1. Pending the filing of admin proceedings
Heirs have legal personality to sue in behalf of estate
BEC of NCC 777 where rights to succession are transmitted
from the moment of death (Rioferio v. CA)
2. GR: E/A only has standing
upon commencement of in/testate proceedings
E: Heirs have standing and may act in place of E/A IF latter (3)
-Has not yet been appointed
even after admin proceedings has been commenced
BEC in such instances, the heirs cannot be expected to wait
to see if the admin appointed would care enough to file suit
to protect the rights and interests of deceased and
in the meantime do nothing while the rights, props of decedent
are violated, dissipated (Gochan v. Young in Rioferio)
-Is fails, unwilling, refuses to act
(Pascual v. Pascual; Velasquez v. George)
-Is the defendant or same person charged with or has
participated in fraudulent conveyance of prop THUS farfetched to
expect him to file action in behalf of estate (Velasquez); Is alleged
to have participated in the act complained of and he is made a
party defendant (Rioferio)
CFRCr
b) E/A may compound with the debtor of the deceased for a debt due, and may give
a discharge of such debt on receiving a just dividend of the estate of the debtor
WITH the approval of the court (87.4)
c) A mortgage belonging to the estate of a deceased person, as mortgagee or
assignee of the right of a mortgagee, may be foreclosed by the executor or
administrator (87.5)
d) E/A, for the benefit of the creditors,
may commence and prosecute to final judgment an action
for the recovery of property, right, interest, debt, or credit
WHEN
-there is a deficiency of assets in the hands of the E/A
for the payment of debts and expenses of administration, and
-the deceased in his lifetime
1) had conveyed real, personal property, right or interest therein,
or debt or credit,
with intent to defraud his creditors, to avoid any right debt, duty;
2) had so conveyed such property, right, interest, debt, credit
that by law
the conveyance would be void as against his creditors, and
the subject of the attempted conveyance
would be liable to attachment by any of them in his lifetime
REQTS: App + Security
E/A shall not be bound to commence the action
-unless the creditors making the application
-pay such part of the costs and expenses, or give security therefor
to the executor or administrator,
as the court deems equitable. (87.9)
OTHERWISE: Remedy of Creditors (87.10):
When
there is such a deficiency of assets, and
the deceased in his lifetime had made or attempted such a conveyance,
as is stated in the last preceding section, and
the E/A has not commenced the action therein provided for,
30
 What / Reqts: Permission to Sue in name of E/A + Bond/Lien
-with the permission of the court
-any creditor of the estate may commence and prosecute to final judgment,
in the name of the E/A,
a like action for the recovery of the subject of the attempted/conveyance
for the benefit of the creditors.
-But the action shall not be commenced until the creditor has filed
a bond executed to the executor or administrator,
in an amount approved by the judge,
conditioned to indemnify the executor or administrator
against the costs and expenses incurred
by reason of such action.
-Such creditor shall have a lien upon any judgment recovered by him
in the action
for such costs and other expenses incurred therein
as the court deems equitable.
E to Reqts: Transfers to E/A
Where the attempted/conveyance
has been made by the deceased in his lifetime
in favor of the executor or administrator,
the action which a creditor may bring
shall be in the name of all the creditors, and
permission of the court and filing of bond as above prescribed,
are not necessary (87.10)
WHEN TP CAN BE SUMMONED, LIABLE (87.6)
a) Property concealed, embezzled, or fraudulently conveyed
-When: If an E/A, heir, legatee, creditor, other individual interested in the estate
complains to the court having jurisdiction of the estate:
i) that a person is suspected of having concealed, embezzled, or conveyed away
any of the money, goods, or chattels of the deceased, or
ii) that such person has in his possession or has knowledge of
any deed, conveyance, bond, contracts, or other writing
which contains evidence of or tends to disclose
the right, title, interest, or claim of the deceased
to real or personal estate, or
the last will and testament of the deceased,
-What: the court [SE-CI]
o may cite such suspected person to appear before it and
may examine him on oath on the matter of such complaint;
o may punish him for contempt, and
o may commit him to prison until he submits to the order of the court
if the person so cited refuses
to appear, or to answer on such examination
such interrogatories as are put to him.
The interrogatories put to any such person,
and his answers thereto,
shall be in writing and shall be filed in the clerks office.
Limitations of Hearing on Ground of 87.6 (Valera v. Inserto)
-Merely to elicit evi relevant to prop of decedent from persons suspected
of having possession, knowledge thereof, or of having concealed the same
- Possible Results
a) If TP lays no claim to prop and manifests willingness to turn it over to
the estate, PC simply issues the appropriate direction for the delivery of the
prop to the estate
b) If TP asserts right to the prop contrary to the decedents, PC has no
authority to resolve the issue WHERE E/A must institute separate action to
recover prop
Embezzlement before letters issued (87.8)
If a person embezzles or alienates
before the granting of letters testamentary or of administration
any of the money, goods, chattels, or effect of such deceased,
such person shall be liable to an action
in favor of the executor or administrator of the estate
for double the value of the property sold, embezzled, or alienated,
to be recovered for the benefit of such estate.
b) Person entrusted by E/A compelled to render account (87.7)
-When: On complaint of an E/A
-What: The court [SA-CI]
-may cite to appear before it
a person entrusted by an executor or administrator
with any part of the estate of the deceased, and
-may require such person to render a full account, on oath,
of the money, goods, chattels, bonds, accounts, or other papers
belonging to such estate as came to his possession
in trust for such executor or administrator, and
of his proceedings thereon; and
-may punish him for contempt
as having disobeyed a lawful order of the court
if the person so cited refuses to appear to render such account
31
 VII. Claims Against the Estate (86)
1. Issuance of Notice (86.1): File money claims with COC
Immediately after granting letters testamentary or of administration,
the court shall issue a notice
requiring all persons having money claims against the decedent
to file them in the office of the clerk of said court.
2. Publication of Notice (86.3)
Every executor or administrator shall,
immediately after the notice to creditors is issued, cause the same
-to be published three weeks successively
in a newspaper of general circulation in the province, and
-to be posted for the same period
in four public places in the province, and
in two public places in the municipality where the decedent last resided.
Proof (86.4)
Within 10d after the notice has been published and posted
in accordance with the preceding section,
the executor or administrator shall file or cause to be filed in the court
a printed copy of the notice accompanied with an affidavit
setting forth the dates of the first and last publication thereof and
the name of the np in which the same is printed.
3. Period for Filing of Claims (86.2): 6-12m after First Publ
In the notice provided in the preceding section,
the court shall state the time for the filing of claims against the estate,
which shall not be more than twelve nor less than six months
after the date of the first publication of the notice.
Example: 6m starting from the 6th month after the date of the first
publication of the notice down to the 12th month; NOT 6m from
publication (Heirs of Pizarro v. Consolacion) > BUT 6m1d allowed where
theres only 1d to file
Rationale (Pizarro): to give PC the discretion to fix the pd for the filing of
claims BUT once fixed by the court, such pd is mandatory
However, at any time before an order of distribution is entered,
on application of a creditor who has failed to file his claim
within the time previously limited,
the court may, for cause shown and on such terms as are equitable,
allow such claim to be filed within a time not exceeding one month.
When to apply for extension (Santos v. Manarang)
Within 6m from the time previously limited or
before the final settlement on the estate if no notice given (Santos v.
Manarang)
When to allow extension (De Villanueva v. PNB)
Courts can extend the pd within which to present claims EVEN AFTER the
pd limited has elapsed BUT granted only under special circumstances
When 1m extension commences (Barredo v. CA citing Paulin v. Aquino):
NOT from the expiration of the original pd fixed by the court
BUT from the order authorizing the filing of the [tardy] claims
4. Manner of Filing Claims (86.9):
Claim +
Vouchers/ NI Copy subject to exh +
Affidavit if lost, not/due by claimant/another
A claim may be filed
-by delivering to the clerk of court
the claim with the necessary vouchers and
-by serving a copy thereof on the executor or administrator.
If the claim be founded on a bond, bill, note, or any other instrument,
the original need not be filed,
but a copy thereof with all indorsements
shall be attached to the claim and filed therewith.
On demand, however, of the executor or administrator, or
by order of the court or judge,
the original shall be exhibited, unless it be lost or destroyed,
in which case the claimant must accompany his claim
with affidavit/s
containing a copy or particular description of the instrument and
stating its loss or destruction.
When the claim is due,
it must be supported by affidavit stating
-the amount justly due,
-that no payments have been made thereon which are not credited, and
-that there are no offsets to the same,
to the knowledge of the affiant.
If the claim is not due, or is contingent, when filed,
it must also be supported by affidavit stating the particulars thereof.
When the affidavit is made by a person other than the claimant,
he must set forth therein the reason why it is not made by the claimant.
The claim once filed shall be attached to the record of the case
in which the letters testamentary or of administration were issued,
32
although the court may order all the claims to be collected in a separate folder,
in its discretion, and as a matter of convenience.
5. Barred Forever Claims (86.5): STATUTE OF NON-CLAIMS
Coverage:
-All claims for money against the decedent,
arising from contract, express or implied,
whether the same be due, not due, or contingent,
-all claims for funeral expenses and expenses for the last sickness of the
decedent,
- judgment for money against the decedent
> MONEY CLAIM obligs are spelled out by law but liability arose from
breach of (carriage) contract (De Bautista v. De Guzman)
WHY: Claims do not survive death of defendant BEC purely personal
obligs (other than those which arise from tort or delict) (Aguas v. Llemos)
Scope
> Claims not yet due, or contingent WHERE they may be approved at their
present value (86.5)
Reqts: contingent claims must
-first have been established and allowed in the PC before the
creditors can file an action directly against the distributees
-be contractual also
-filed within the same pd as other claims
> Any persons or class of persons: Non/Resident; Infant/Adult; Insane/
Deceased Creditors (Tan Sen Guan)
What to Do: must be filed within the time limited in the notice;
OTHERWISE
i) Re: Claimant
GR: they are barred forever,
EXCEPTIONS
- They may be set forth as counterclaims
in any action that E/A may bring against the claimants
- Where E/A
commences an action, or
prosecutes an action already commenced by the deceased in his lifetime,
the debtor may set forth by answer
the claims he has against the decedent,
instead of presenting them independently to the court, and
mutual claims may be set off against each other in such action;
and if final judgment is rendered in favor of the defendant,
the amount so determined shall be considered
the true balance against the estate,
as though the claim had been presented directly before the court
in the administration proceedings.
ii) Re: PC / Committee on Claims: Claim cannot be allowed by the
commissioners on their own motion and of their own volition BEC if no
claim is presented, THEN there is nothing for them to adjudicate and they
have no authority to allow, reject the claim OTHERWISE they would be
acting without jurisd (Gotamco v. Chan Seng)
PURPOSE OF STATUTE OF NONCLAIMS (Santos v. Manarang; in Pizarro)
- To settle the affairs of the estate with dispatch so that the residue may be
delivered to the persons entitled thereto without their being afterwards
called upon to respond in actions for claims which, under the ordinary SOL,
have not yet prescribed
- To insure the speedy settling of the affairs of a deceased person and the
early delivery of the property of the estate into the hands of the persons
entitled to receive it
- To facilitate the speedy liquidation of estates by barring all proceeding
when the claim is one that was not presented after the publication of the
notice reqd (Tan Sen Guan v. Go Siu San)
- To inform the E/A of the claims against it and enable him to examine each
claim and determine whether it is a proper one which should be allowed
(De Bautista v. De Guzman)
EXCEPTIONS TO STATUTE OF NON-CLAIMS (Santos)
1. property not included in the inventory
2. fraud
3. equity
BUT! Tan Sen Guan: The fact that the creditor might have been
induced by fraudulent machinations and unlawful influence of
the admin cannot affect the legal consequences of his failure to
present the claim BEC the law does not make any reservation
or exception whatever
Effect of Testators Will as to Payment of Such Claims (Santos)
- Direction in the will for the executor to pay all just debts DOES NOT
MEAN that he shall pay them without probate (eg Will provided payment
of certain debts BUT not allowed by PC BEC not presented within 6m)
- Will of testator cannot prevail over procedural reqts THUS claims against
the estate are enforceable only when the prescribed legal procedures are
followed
- Presumption that testator is acquainted with the rules of law PREVAILS
over any construction of the will tending to show an intention of the
testator that the ordinary legal method of probating claims should be
dispensed with
33
 - WHY NOT: Testator may either fail to list in his will all his creditors; set
down an erroneous amt opposite their names; overlook some debts;
contract new ones after the will is made; made partial payments on some;
incur additional indebtedness as to others
NON-APPLICABILITY OF STATUTE OF NONCLAIMS
a. Surviving Claims v. Deceased Defendant (Aguas v. Llemos)
1. actions to recover real and personal prop from the estate
2. actions to enforce a lien thereon
3. actions to recover damages for an injury to person, property
> INJURY TO PROPERTY
need not be specific prop
BUT extends to other wrongs by which estate is injured,
diminished
eg maliciously causing a party to incur unnecessary expenses by
filing suit
b. Claims for monetary obligations of the decedent created by law, eg taxes (Vera v.
Fernandez)
BEC
- taxes are the lifeblood of the govt and their prompt and certain
availability is an imperious need ~ Estoppel NA to govt
-the assessment, collection, recovery, prescription of taxes are governed by
the provs of the NIRC, and not by other provs of law (cited CIR v. Ilagan)
THUS
- PC may direct the admin to pay such taxes upon motion showing that the
taxes have been assessed against the estate W/O NEED of submitting such
claims to the committee on claims (cited Pineda v. CFI)
- Claims for taxes may be collected even after the distribution of the
decedents estate among his heirs who shall be liable therefor in
proportion of their share in the inheritance (cited RP v. Pamintuan)
- Payment of income tax shall be a lien in favor of the Govt. from the time
the assessment was made by the CIR until paid with interests, penalties
c. Actions to Revive Judgments (Romualdez v. Tiglao) - Original J which has become
stale bec. of non-execution cannot be presented against the estate unless it is first
revived by action THUS diff from claim v. estate BEC it is merely to keep alive said
judgment so that the sums therein awarded can be presented as claim v. the estate
6. Solidary and Joint Claims (86.6)
Where the obligation of the decedent is solidary with another debtor,
the claim shall be filed against the decedent
as if he were the only debtor,
without prejudice to the right of the estate
to recover contribution from the other debtor.
In a joint obligation of the decedent,
the claim shall be confined to the portion belonging to him.
7. Secured Claims (86.7, related to 89.7)
A creditor holding a claim against the deceased
secured by mortgage or other collateral security, may:
a) file a claim (share in general estate) and abandon security
BUT can no longer seek deficiency
abandon the security and
prosecute his claim in the manner provided in this rule, and
share in the general distribution of the assets of the estate
Why Abandon Security (Bachrach v. Icarangal)
-Party who sues and obtains a personal judgment against a
defendant upon a note WAIVES thereby his right to foreclose the
mortgage securing it BEC one cannot split COA where party
cannot split single COA into parts and sue on each part separately
TO
-prevent repeated litigation b/w same parties re: same
subject of controversy
-protect defendant from unnecessary vexation
-avoid the costs, expenses incident to numerous suits
- Bachrach: Creditor sued and obtained a personal judgment
against debtor for recovery of debt (on the PN for the payment of
which a mortgage was constituted as a security) BUT not allowed
to subsequently foreclose the REM > Ordinary action for
foreclosure
b) foreclose mortgage judicially and realize upon security
by ordinary court action v. E/A (need not be filed within the 6-12m pd)
and claim deficiency as creditors claim in entitlement
foreclose his mortgage or realize upon his security,
by action in court,
making the executor or administrator a party defendant, and
claim his deficiency judgment
in the manner provided in the preceding section,
if there is a judgment for a deficiency,
after the sale of the mortgaged premises, or the property pledged,
in the foreclosure, other proceedings to realize upon the security
WHY ALLOWED TO SUE v. E/A (Sps. Manalansan v. Castaneda)
- Action to enforce lien may be prosecuted by interested person
v. E/A independently of the in/testate proceedings BEC such
claims cannot, in any just sense, be considered claims v. estate
WHERE the right to subject specific property to the claim arises
from the contract of the debtor whereby he has, during life, set
aside certain prop for its payment and such prop does not, except
in so far as its value may exceed the debt, belong to the estate
34
 - PC without jurisd over secured prop
- Writ of Exec issued before death can be enforced v. E/A, Heirs
c) foreclose extrajudicially and rely on mortgage alone
BUT can no longer seek file claim as creditor
rely upon his mortgage or other security alone, and
foreclose the same at any time within the period of the SOL
and in that event he shall not be admitted as a creditor,
and shall receive no share in the distribution of the other assets
of the estate
> FORECLOSURE includes extrajudicial foreclosure sales (PNB)
> There is waiver of right to recover any deficiency from estate (PNB)
but nothing herein contained shall prohibit
the executor or administrator
from redeeming the property mortgaged or pledged,
by paying the debt for which it is held as security,
under the direction of the court,
if the court shall adjudge it
to be for the best interest of the estate
that such redemption shall be made.
Implication (Sps. Manalansan v. Castaneda)
- merely reserves a right to the E/A to redeem a mortgage,
pledged prop of decedent which the mortgagee, pledgee has
opted to foreclose instead of filing a money claim with the PC
- exercise of right is discretionary with E/A and may not be
ordered by PC motu proprio
- does not confer jurisd upon PC to enforce a mortgage lien or to
delegate the execution of the judgment of foreclosure to the PC
NATURE OF THREE REMEDIES
- Creditor holding a claim against the deceased, secured by a mortgage, has
to elect b/w enforcing such security or abandoning it by presenting his
claim and share in the general assets of the estate BUT if the plaintiff
elects one, he waives the other, and if he fails, he fails utterly
(Bachrach)
- distinct, independent and mutually exclusive that can be alternatively
pursued (Soriano v. Parsons Hardware; PNB v. CA)
- CAN CHANGE CHOICE: Three options are not jurisdictional and as long as
no positive forward step has been taken by creditor in pursuance of
the option selected, he is not precluded from dropping the option already
selected and resorting to any of the two other options available to him
(Soriano)
8. Claims of Admin, Executor (86.8)
If the executor or administrator has a claim against the estate he represents,
he shall give notice thereof, in writing, to the court, and
the court shall appoint a special administrator,
who shall, in the adjustment of such claim,
have the same power and be subject to the same liability
as the general administrator or executor in the settlement of other claims.
The court may order the executor or administrator
to pay to the special administrator necessary funds to defend such claim.
9. Answer of Executor, Admin to Claims (86.10)
Within 15d after service of a copy of the claim on the executor or administrator,
he shall file his answer
-admitting or denying the claim specifically, and
-setting forth
the substance of the matters
which are relied upon to support the admission or denial.
If he has no knowledge
sufficient to enable him to admit or deny specifically,
he shall state such want of knowledge;
he shall allege in offset
any claim which the decedent had before death
against the claimant, and
his failure to do so shall bar the claim forever.
A copy of the answer shall be served
by the executor or administrator on the claimant.
The court in its discretion may extend the time for filing such answer.
10. Allowance of Claims (86.11): GR-Ex parte E-15d for heirs to oppose
Any claim admitted entirely by the executor or administrator
shall immediately be submitted by the clerk to the court
who may approve the same without hearing;
but the court, in its discretion, before approving the claim,
may order that known heirs, legatees, or devisees be notified and heard.
If upon hearing,
an heir, legatee, or devisee opposes the claim,
the court may, in its discretion, allow him 15d
to file an answer to the claim in manner prescribed in preceding section.
35
Upon the filing of an answer to a claim, or VIII. Payment of the Debts of the Estate (88)
upon the expiration of the time for such filing,
the clerk of court shall set the claim for trial 1) When Estate is Sufficient: E/A Pay (88.1)
with notice to both parties. After hearing all the money claims against the estate, and
The court may refer the claim to a commissioner. (86.12) After ascertaining the amount of such claims,
it appears that there are sufficient assets to pay the debts,
The judgment of the court approving or disapproving a claim, the executor or administrator shall pay the same
shall be filed with the record of the administration proceedings within the time limited for that purpose.
with notice to both parties, and
is appealable as in ordinary cases. 2) When Will provides for Payment (88.2):
Pay accordingly and then from undisposed
A judgment against the executor or administrator
shall be that he pay, in due course of administration, If the testator
the amount ascertained to be due, and makes provision by his will, or
it shall not create any lien upon the property of the estate, or designates the estate to be appropriated
give to the judgment creditor any priority of payment. (86.13) for the payment of
his debts, the expenses of administration, or the family expenses,
they shall paid according to the provisions of the will;
11. Allowance of Costs
When the executor or administrator, in his answer, but if the provision made by the will or the state appropriated,
admits and offers to pay part of a claim, and is not sufficient for that purpose,
such part of the estate of the testator, real or personal,
the claimant refuses to accept the amount offered in satisfaction of his claim, as is not disposed of by will, if any,
shall be appropriated for that purpose.
if he fails to obtain a more favorable judgment,
he cannot recover costs, but 3) When there is a contingent claim (88.4)
must pay to the executor or administrator costs from the time of the offer. If the court is satisfied that a contingent claim duly filed is valid,
it may order the executor or administrator to retain in his hands
Where an action commenced against the deceased for money -sufficient estate to pay such contingent claim
has been discontinued and when the same becomes absolute, or,
the claim embraced therein presented as in this rule provided, -sufficient to pay a portion equal to the dividend of the other creditors
the prevailing party shall be allowed if the estate is insolvent,
the costs of his action up to the time of its discontinuance. (86.14)
How Claimed when Due (88.5)
Sebial: TP to whom the decedents assets had been fraudulently conveyed may be a) If Presented within 2y: Allowed in Retained Estate distribution
cited to appear in court and be examined under oath as to how they came into the If such contingent claim
possession of said assets BUT a separate action would be necessary to recover said becomes absolute and
assets is presented to the court, or to E/A,
within two years
Advancement of Inheritance (Quasha) from the time limited for other creditors to present their claims
GR: within discretion of PC WON to permit the advance distribution of the estate - If not disputed by E/A, it may be allowed by the court
E: Discretion should be qualified by the ff: - If disputed, it may be proved and allowed or disallowed by the court
1. only part of the estate that is not affected by any pending controversy or as facts may warrant
appeal may be the subject of advance distribution - If the contingent claim is allowed,
2. distributees must post a bond, fixed by the court, conditioned on the the creditor shall receive payment
payment of outstanding obligs of the estate to the same extent as the other creditors
if the estate retained by E/A is sufficient.

36

b) Not presented in 2y but later allowed: Distribute retained estate to heirs
after 2y but creditor can still recover separately from heirs
If the claim is not so presented, after having become absolute,
within said two years, and allowed,
the assets retained in the hands of E/A,
not exhausted in the payment of claims,
shall be distributed to the persons entitled to the same
by the order of the court;
but the assets so distributed
may still be applied to the payment of the claim when established, and
the creditor may maintain an action against the distributees
to recover the debt, and
such distributees and their estates shall be liable for the debt
in proportion to the estate they have respectively received
from the property of the deceased.
4) When Estate is Insufficient (88.7)
If the assets which can be appropriated for the payment of debts
are not sufficient for that purpose,
the executor or administrator shall pay the debts against the estate,
observing the provisions of Articles 1059 and 2239 to 2251 of the Civil Code.
When:
- If it appears to the court having jurisdiction
that claims have been duly proven in another country
- against the estate of an insolvent
who was at the time of his death an inhabitant of the Philippines, and
- that the executor or administrator in the Philippines had
knowledge of the presentation of such claims in such country and
opportunity to contest their allowance
What: the court shall
-receive a certified list of such claims, when perfected in such country, and
-add the same to the list of claims proved against the deceased person in the
Philippines
- so that a just distribution of the whole estate may be made
equally among all its creditors according to their respective claims;
Reqt: Reciprocity
the benefit of this and the preceding sections
shall not be extended to the creditors in another country
if the property of such deceased person there found
is not equally apportioned to
the creditors residing in the Philippines and the other creditors,
according to their respective claims.

Dividends to be paid in proportion to claims.

If there are no assets sufficient to pay the credits
of any one class of creditors
after paying the credits entitled to preference over it,
each creditor within such class shall be paid a dividend
in proportion to his claim.
No creditor of any one class
shall receive any payment until those of the preceding class are paid. (88.8)

5) When Decedent is Insolvent Non-Resident (88.9)

In case administration is taken in the Philippines of the estate of a person
who was at the time of his death an inhabitant of another country, and
who died insolvent,
his estate found in the Philippines shall, as far as practicable, be so disposed of
that his creditors here and elsewhere
may receive each an equal share,
in proportion to their respective credits

6) When insolvent resident deceased has foreign creditors (88.10)

37
PROPRIETY OF SALE OF ESTATE AND ORDER OF PROPERTY CHARGED
*Sale only of Personal Prop; SMO of Real Prop
1. Personal Prop not disposed of by will
The personal estate of the deceased not disposed of by will
shall be first chargeable with the payment of debts and expenses (88.3)
How (89.1)
Upon the application of E/A, and
on written notice to the heirs and other persons interested,
the court may order to be sold
the whole or a part of the personal estate,
if it appears necessary
- for the purpose of paying debts, expenses of administration, or legacies,
- for the preservation of the property.
2. Real Prop to be encumbered if personal insufficient, detrimental (88.3)
When: when said personal estate is not sufficient for that purpose, or
its sale would redound to the detriment of the participants of the estate
89.2:
When the personal estate of the deceased is not sufficient
to pay the debts, expenses of administration, and legacies, or
where the sale of such personal estate
may injure the business or other interests
of those interested in the estate, and
where a testator has not otherwise made sufficient provision
for the payment of such debts, expenses and legacies
What: whole or so much as is necessary
of the real estate
-not disposed of by will, or
-acquired on execution or foreclosure sale by E/A,
upon authority of court to sell, mortgage, otherwise encumber
under the same circumstances and
under the same regulations as prescribed in this rule
for the sale, mortgage, other encumbrance of other real estate
(89.6)
may be sold, mortgaged, or otherwise encumbered for that purpose
by the executor or administrator
89.2:
if a part cannot be sold, mortgaged, or otherwise encumbered
without injury to those interested in the remainder,
the authority may be for the sale, mortgage, or other encumbrance
of the whole of such real estate, or
so much thereof as is necessary or beneficial under the circumstances
Reqt: -after obtaining the authority of the court thereof
-on the application of the executor or administrator and
on written notice to heirs, devisees, legatees residing in Philippines,
the court may authorize the executor or administrator
to sell, mortgage, or otherwise encumber so much as may be necessary
of the real estate, in lieu of personal estate,
for the purpose of paying such debts, expenses, and legacies,
if it clearly appears that such sale, mortgage, or encumbrance
would be beneficial to the persons interested (89.2)
WHEN SMO NOT ALLOWED
1) Bond by Person Interested
No such authority shall be granted
to sell, mortgage, or otherwise encumber real or personal estate
if any person interested in the estate gives a bond,
in a sum to be fixed by the court,
conditioned to pay the debts, expenses of administration, and legacies
within such time as the court directs; and
such bond
-shall be for the security of the creditors, as well as of E/A, and
-may be prosecuted for the benefit of either (89.3)
2) Previously Contracted to Convey (89.8)
When: Where the deceased in his lifetime
was under contract binding in law
to deed real property, or an interest therein
How: -on application for that purpose
-Notice of the application for the purpose
has been given personally or by mail
to all persons interested, and
Such further notice has been given,
by publication or otherwise,
as the court deems proper;
-Assets in the hands of E/A will not thereby be reduced
so as to prevent a creditor from receiving his full debt or
diminish his dividend
38
What: the court having jurisdiction of the estate may authorize
-the E/A to convey such property c) Beneficial for Heirs UNLESS Will otherwise provides (89.4)
according to such contract, or When
with such modifications When it appears that the sale of the whole or a part
as are agreed upon by the parties and of the real or personal estate,
approved by the court; and will be beneficial to the heirs, devisees, legatees, other interested persons
-the Clerk of Court to execute the deed
if the contract is to convey real property Reqts
to the executor or administrator. -upon application of the executor or administrator and
-on written notice to the heirs, devisees, and legatees
Effect: who are interested in the estate to be sold
The deed executed by such E/A, COC
shall be as effectual to convey the property What
as if executed by the deceased in his lifetime -the court may authorize E/A
to sell the whole or a part of said estate,
3) Prop held in Trust by Decedent although not necessary to pay debts, legacies, or expenses of admin;
When: Deceased in his lifetime -In case of such sale,
held real property in trust for another person, the proceeds shall be assigned to the persons entitled to the estate
whether created by deed or by law in the proper proportions

What: court may Except

-after notice given as reqd in the last preceding section BUT such authority shall not be granted
-authorize E/A to deed such property if inconsistent with the provisions of a will.
to the person, or his E/A,
for whose use and benefit it was so held
-order the execution of such trust PROCEDURE FOR SALE OF PROPERTIES (89.7)
The court having jurisdiction of the estate of the deceased
may authorize the E/A
to sell personal estate, or
JUSTIFICATIONS FOR SELLING PROPERTY OF ESTATE: Necessary or Beneficial to sell, mortgage, or otherwise encumber real estate,
a) Necessary for Paying and Preserving (89.1 and 89.2) in cases provided by these rules and
when it appears necessary or beneficial,
b) Necessary to Pay Foreign Debts under the following regulations:
When the sale of personal estate, or
the sale, mortgage, or other encumbrance of real estate (a) The E/A shall file a written petition setting forth
is not necessary to pay the debts, expenses of administration, or legacies the debts due from the deceased,
in the Philippines, the expenses of administration,
but it appears from records of proceedings the legacies,
of a probate court in another country the value of the personal estate,
that the estate of the deceased in such other country is not sufficient the situation of the estate to be sold, mortgaged, otherwise
to pay the debts, expenses and administration, and legacies there, encumbered,
the court here may authorize the executor or administrator and such other facts as show
to sell the personal estate or that the sale, mortgage, or other encumbrance
to sell, mortgage, or otherwise encumber the real estate is necessary or beneficial;
for the payment of debts or legacies in the other country, > In short: That there are unpaid debts and that there is not sufficient
in the same manner as for the payment of debts or legacies (personal) prop to pay the amt of such debts (De la Cruz v. De la Cruz)
in the Philippines. (89.5) > Nature of Reqt to Allege: JURISDL FACTS

39
 > WHY Petition Reqd: Jurisd of PC to order the sale does not
inhere in its general authority over the admin of the estate, but is
invoked by the petition for the sale THUS jurisd essentially
depends on the averments of the petition and not on the truth,
falsity of its averments (DC v. DC)
(b) Issuance of Notice: Court
-shall fix a time and place for hearing such petition, and
-shall cause notice to be given personally or by mail to the persons
interested, stating
the nature of the petition,
the reason for the same, and
the time and place of hearing
-may cause such further notice to be given,
by publication or otherwise,
as it shall deem proper
(c) Addtl Bond: If the court requires it,
the executor or administrator shall give an additional bond,
in such sum as the court directs,
conditioned that such executor or administrator
will account for the proceeds of the sale, mortgage, or other encumbrance
(d) Order of Sale: court
-may authorize the E/A
to sell, mortgage, or otherwise encumber, in proper cases,
such part of the estate as is deemed necessary
if the requirements in the preceding subdivisions of this section
have been complied with,
by order stating such compliance, and
- may authorize it to be public or private, in case of sale
as would be most beneficial to all parties concerned.
The executor or administrator shall be furnished
with a certified copy of such order
> RATIONALE for Court Approval: Necessity for a sale is not a matter for
the E/A to determine, but is a conclusion which the court must draw from
the facts stated, and the petition therefore must furnish the materials for
its judgment (DC v. DC)
> E: Court Approval NOT REQD for Sale of Right to Inherit
> SCOPE OF AUTHORITY OF COURT: To ORDER and EXECUTE Sale
PC can enforce obligs under a deed of sale
BEC power to enforce obligs under deed of sale of prop ordered sold to pay
debts of the estate is but a necessary incident of the power of PC to order
and effect such sale in the first place (WT Construction v. Canete WHERE
PC authorized admin to sell land to pay taxes and admin contracted with
WTC for purchase BUT WTC refused to pay further thus PC issued writ of
exec)
(e) If the estate is to be sold at auction,
the mode of giving notice of the time and place of the sale
shall be governed by the provisions concerning notice of execution sale;
(f) There shall be recorded in the registry of deeds of the province
in which real estate sold, mortgaged, otherwise encumbered is situated,
-a certified copy of the order of the court
-the deed of the E/A for such real estate,
which shall be as valid
as if the deed had been executed by the deceased in his lifetime.
> WHEN IS SALE, COURT AUTHORITY TO SELL VOID
-Pet. did not allege jurisdl facts THUS Purchaser may acquire no legal title,
though he may be recognized as having an equitable title enforceable
against the heirs who receive their share of the purchase money (DC v. DC)
-Sale without Court approval is NULL AND VOID EVEN IF Heirs executed
a Power of Atty in favor of the admin to sell the prop of the estate BEC
Court has exclusive jurisd to authorize the sale of props (Godoy v. Orellano)
-Sale of prop. of the estate without notice to the heirs, devisees, legatees is
VOID (Rafols v. Barba)
-When Sale, Encumbrance of Real Prop is without previous notice to HDL,
both Contract and Order of Court authorizing the same are VOID
(Pahamotang v. PNB referring to Rafols v. Barba)
> REMEDY if Sale is Void: Separate Action to Nullify Sale (Rafols v. Barba)
> IMPLICATIONS: Reqts of 89 are MANDATORY (Pahamotang)
40
3. Contribution if still deficient (88.3)
Any deficiency shall be met by contributions
in accordance with 88.6.
88.6:
When: Where devisees, legatees, or heirs
-have entered into possession of portions of the estate
before the debts and expenses have been settled and paid, and
-have become liable
to contribute for the payment of such debts and expenses
What: court having jurisdiction of the estate
by order for that purpose, after hearing, may:
-settle the amount of their several liabilities,
-order how much and in what manner each person shall contribute, and
- issue execution as circumstances require (88.6)
ORDER FOR PAYMENT OF DEBTS
a) Before the expiration of the time limited for the payment of the debts
(88.12)
the court shall order
-the payment thereof, and
-the distribution of the assets
received by the executor or administrator for that purpose
among the creditors,
as the circumstances of the estate require and
in accordance with the provisions of this rule.
b) Subsequent distribution of assets (88.13)
If the whole of the debts are not paid on the first distribution, and
if the whole assets are not distributed, or
if other assets afterwards come to the hands of the executor or administrator,
the court may from time to time make further orders for the distribution of assets.
> Effect of Appeal (88.13)
If an appeal has been taken from a decision of the court concerning a claim,
the court may suspend the order for the payment of the debts or
may order the distribution among the creditors
whose claims are definitely allowed,
leaving in the hands of the executor or administrator
sufficient assets to pay the claim disputed and appealed.
When a disputed claim is finally settled
the court having jurisdiction of the estate
shall order the same to be paid
out of the assets retained
to the same extent and in the same proportion
with the claims of other creditors.
TIME FOR PAYMENT
1. Arrival of Time for Payment in Order (88.14)
When an order is made for the distribution of assets among the creditors,
the executor or administrator shall pay the creditors
the amounts of their claims, or
the dividend thereon, in accordance with the terms of such order
as soon as the time of payment arrives
Duration of Ordered Pd to Pay (88.15): 1y EXT 6m each BUT Total 2y
On granting letters testamentary or administration
the court shall allow to the E/A
a time for -disposing of the estate and
-paying the debts and legacies of the deceased,
which shall not exceed one year, in the first instance,
but the court may extend the time
not exceeding six months for a single extension
nor so that the whole period allowed shall exceed two years
When
-as the circumstances of the estate require
-on application of the executor or administrator and
-after hearing on such notice of the time and place therefor
given to all persons interested as it shall direct
Extension of Pd if E/A Dies (88.16)
When an E/A dies, and
a new administrator of the same estate is appointed,
the court may extend the time
allowed for the payment of the debts or legacies
beyond the time allowed to the original executor or administrator,
not exceeding six months
-at a time and
-beyond the time which the court might have allowed
to such original executor or administrator; and
-notice shall be given of the time and place
for hearing such application,
as required in the last preceding section.
41
 IX. Distribution and Partition of Estate (90) WHAT/EFFECTS
-Court shall assign the residue of the estate to the persons entitled to the same,
1) Payment of Debts or Bond executed by HDL (90.1) -naming them and
2) Application for an Order for Distribution (90.1) -the proportions, or parts, to which each is entitled
3) Declaration of Heirs
- With Notice and Hearing > Project of Partition? NOT REQD
- Issues of Filiation, Marriage - E/A may present a PP to PC if latter requires it to better inform itself of
the condition of the estate to be distributed and so facilitate the prompt
4) Order for Distribution (90.1) distribution thereof BUT PP presented is not conclusive
- Interested parties could oppose the approval thereof and enter their
objections thereto and at the same time presenting their counter-project of
WHEN/REQTS partition which PC might accept and approve
-ff have been paid: - WHY: BEC PC alone that may make the distribution of the estate and
1. debts, determine the persons entitled thereto and the parts to which each is
2. expenses of administration, entitled
3. funeral charges,
4. allowance to the widow, and - Such persons may demand and recover their respective shares
5. inheritance tax, if any, from the E/A, any other person having the same in his possession.
chargeable to the estate in accordance with law
> UNLESS distributees, or any of them, -If there is a controversy before the court
give a bond, in a sum to be fixed by the court, o as to who are the lawful heirs of the deceased person or
conditioned for the payment of said obligations > Bond only if w/ obligs o as to the distributive shares to which each person is entitled under the law,
within such time as the court directs o as to advancement made, or alleged to have been made, by the deceased to
>Rule: Partial Distribution of the estate pending final termination of the any heir (90.2)
proceedings should as much as possible be discouraged by the courts and may be heard and determined
such form of advances of inheritance should not be countenanced BEC by the court having jurisdiction of the estate proceedings; and
Courts should guard with utmost zeal and jealousy the estate of the the final order of the court thereon shall be binding
decedent to the end that the creditors thereof be adequately protected and on the person raising the questions and
all the rightful heirs assured of their shares in the inheritance > allow only on the heir.
in extreme cases the controversy shall be heard and decided as in ordinary cases.
> E to BOND REQT FOR ADVANCMENT: Dael v. IAC
- estate had sufficient assets to ensure an equitable distribution > Advancement v. Inclusion of prop in inventory (De Leon v. CA)
of the inheritance in accordance with the law and final judgment Advancement / Collation Inclusion in Inventory
in the proceedings GR: Final Provisional;
- it does not appear that there are unpaid obligs (Dael v. IAC) E: Interlocutory if donees question Disputes have to be settled in an
-On the application of the E/A, person interested in the estate collation; ordinary action for a final determination
-After hearing upon notice Comes only when the net remainder of of the conflicting claims of title
the estate has been determined and
estate is ready for partition and
distribution

-FINAL J THUS APPEALABLE (via 109, NOT 45)

-Project of Partition is not mandatory

42
5) Delivery of Possession and Payment of Expenses of Partition (90.3) X. Escheat (91)

- By E/A What is ESCHEAT

If at the time of the distribution
the E/A has retained sufficient effects in his hands
which may lawfully be applied
for the expenses of partition of the properties distributed,
such expenses of partition may be paid by such executor or administrator
when it appears equitable to the court and
not inconsistent with the intention of the testator
- By Parties
otherwise, they shall be paid by the parties
in proportion to their respective shares or interest in the premises, and
the apportionment shall be settled and allowed by the court, and,
if any person interested in the partition does not pay his proportion or share,
the court may issue an execution
in the name of the executor or administrator
against the party not paying for the sum assessed
6) Order of Closure (Partition) and its Recording (90.4)
Certified copies of final orders and judgments of the court
relating to the real estate or the partition thereof
shall be recorded in the registry of deeds
of the province where the property is situated.
- a proceeding whereby the real and personal property of a deceased person become
the property of the State upon his death without leaving any will or legal heirs (San
Pedro v. Castillo)
Nature: Special Proceeding commenced via Petition (San Pedro)
Who are Interested Parties (San Pedro)
- Petitioner (OSG)
- Any person alleging to have a direct right or interest in the property sought to be
escheated is an interested and necessary party and may appear and oppose the
petition for escheat
Conditions for Escheat (91.1) > Jurisdl Facts (San Pedro)
1. Person dies intestate
2. seized of real or personal property in the Philippines,
3. which he owned
4. leaving no heir or person by law entitled to the same
5. one who applies for the escheat is the muni where deceased had his last residence or
where prop is situated if NR
> Indispensable that the reqts should have been complied with by making
the inquisition with regard to the matters specified, at the instance of the
interested municipality (Estate of Lao Sayco)
Process of Escheat (91.1)
Who files: Solicitor General or his representative
in behalf of the Republic of the Philippines
What is filed: Petition
setting forth the facts, and
praying that the estate of the deceased be declared escheated
Where filed: Regional Trial Court of the province
where the deceased last resided or
in which he had estate, if he resided out of the Philippines
When allowed:
a) Order for Hearing (91.2)
If the petition is sufficient in form and substance,
the court by an order reciting the purpose of the petition
-shall fix a date and place for the hearing thereof,
which date shall be not more than six months
after the entry of the order, and
-shall direct that a copy of the order be published before the hearing
at least once a week for six successive weeks
in some newspaper of general circulation published in the province,
as the court shall deem best.
-shall send notice to actual possessor and adjacent lot owners (Maam)

43

b) Proof at Hearing (91.3):
When: Satisfactory proof in open court on the date fixed in the order
What:
-that order for hearing has been published as directed
-that the person died intestate
-seized of real or personal property in the Philippines
-leaving no heir or person entitled to the same
-no sufficient cause being shown to the contrary
Propriety of MD/Demurrer
GR: Demurrer is not applicable to special proceedings
E: there is no reason of a procedural nature which prevents the filing of a
MD based upon any of the grounds provided by law for a demurrer to a
complaint WHERE MD plays the role of demurrer THUS MD on grounds
that...
-pet. for escheat does not state facts which entitle the petitioner
to the remedy prayed for
-there are no grounds for the court to proceed to the inquisition
provided by law (San Pedro)
c) Judgment for Escheat (91.3): the court shall adjudge that the estate of the
deceased in the Philippines
-shall escheat after the payment of just debts and charges; and
-shall assign, pursuant to law
If Deceased is Resident
1. the personal estate
to the municipality or city where he last resided in the Philippines
- BENEFICIARIES OF ESCHEATED PROPERTIES (91.3)
Such estate shall be for the benefit of
public schools, and public charitable institutions and centers
in said municipalities or cities.
d) Appearance of Persons Entitled to Estate (91.4)
If a devisee, legatee, heir, widow, widower, other person entitled to such estate
appears and files a claim thereto with the court
within 5y from the date of such judgment
OTHERWISE Forever Barred
such person shall
have possession of and title to the same, or
be entitled to the proceeds if sold
by the municipality or city who shall be accountable
after deducting reasonable charges for the care of the estate
Applicability of Rule to Other Alienated Props
Until otherwise provided by law,
actions for reversion or escheat of properties
alienated in violation of the Constitution or of any statute
shall be governed by this rule,
except that the action shall be instituted
in the province where the land lies in whole or in part (91.5)

2. the real estate

to the municipalities or cities, respectively,
in which the same is situated

If Deceased is Non-Resident
3. the whole estate
to the respective municipalities or cities where the same is located
if the deceased never resided in the Philippines,
--
4. the income only of such estate
The court, at the instance of an interested party, or on its own motion,
may order the establishment of a permanent trust,
so that only the income from the property shall be used.

44
GUARDIANSHIP (NOT MINORS)
Procedure for Incompetents who are not minors
In General 1. Filing of Petition

Who can File Petition (93.1)

What: Guardianship of the person or estate of an incompetent For Residents:
(92.1) relative,
friend, or
Who is INCOMPETENT (92.2) PCLOUD other person on behalf of a resident incompetent
1. persons suffering the penalty of civil interdiction who has no parent or lawful guardian, or
2. hospitalized lepers, Secretary of Health [Director of Health],
3. prodigals, in favor of an insane person who should be hospitalized, or
4. deaf and dumb who are unable to read and write, in favor of an isolated leper
5. those who are of unsound mind, even though they have lucid intervals, officer of the Federal Administration of the United States in the Philippines in
6. (other) persons favor of a ward thereof
not being of unsound mind,
but by reason of age, disease, weak mind, and other similar causes, For Non-Residents BUT with Estate in Ph (93.6)
cannot take care of themselves and manage their property relative
without outside aid, friend of such person
becoming thereby an easy prey for deceit and exploitation. any one interested in his estate, in expectancy or otherwise

For What: appointment of a general guardian for the person or estate, or both (93.1)
Jurisdiction of Guardianship Court
1. Title to Property How: Petition
GR: Does not include determination of title, ownership of property Content of Petition (93.2): must show, so far as known to the petitioner:
Gship Court exercises special and limited jurisd THUS cannot actually 1) The jurisdictional facts;
order the delivery of the property of the ward found to be embezzled, 2) The incompetency
concealed, conveyed THUS determine in separate and ordinary action rendering the appointment necessary or convenient;
3) The names, ages, and residences
E: Clear and Indisputable Title: of the relatives of the incompetent, and
Where property clearly belongs to ward of the persons having him in their care;
Where wards title thereto has been judicially decided (Cui v Piccio, in 4) The probable value and character of his estate;
Parco v. CA; in Paciente v. Dacuycuy) 5) The name of the person for whom letters of guardianship are prayed.

2. Settlement of Estate Form of Petition (93.2): Verified BUT no defect in the petition or
One petition can be both for Guardianship and Settlement of Estate as long verification shall render void the issuance of letters of guardianship.
as the jurisdictional facts for each are alleged (Vda. de Chua v. CA)
Where to File (92.1)
-Resident: where the incompetent person resides
in the Regional Trial Court of the province, or
in the justice of the peace court of the municipality, or
in the municipal court of the chartered city
> Subject to Jurisdl Amt:
where the value of the property
exceeds the jurisdiction of the municipal court,

45
 the proceedings shall be instituted in the Regional Trial Court
-Non-Resident of Ph: where his property or part thereof is situated
in the Regional Trial Court of the province
Transfer of Venue (92.3)
The court taking cognizance of a guardianship proceeding,
may transfer the same to the court of another province or municipality
wherein the ward has acquired real property,
IF he has transferred thereto his bona fide residence, and
the latter court shall have full jurisd to continue the proceedings,
without requiring payment of additional court fees.
> Why: Jurisd is vested in the court, not in any particular branch, judge
BEC Various branches of CFI of a judicial district are a coordinate
and co-equal courts WHERE one branch stands on the same level
as the other THUS when a case is filed in one branch, jurisd over
the case does not attach to the branch or judge alone, to the
exclusion of the other branches (Parco v. CA)
2. Issuance of Notice (93.3)
By: Court
When: When petition for the appointment of a general guardian is filed
What: shall fix a time and place for hearing the same, and
shall cause reasonable notice thereof to be given to
-the persons mentioned in petition residing in province, and
-the incompetent himself [IF resident]
may direct other general or special notice thereof to be given.
*Notice for Non-Resident Incompetent
May be in such manner as the court deems proper,
by publication or otherwise (93.6)
> NOTICE REQT to Incompetent himself: JURISDL (Yangco v. CFI; in Nery v.
Lorenzo)
WHERE Statute does not allow substituted service
EXCEPT in cases where the person for whose property the guardian is
sought to be appointed is a resident of a foreign country
BEC of Right of Ownership and Deprivation of Property WHERE to declare
a person of full age to be incompetent to manage his affairs and thereby
deprive him of the possession of and right to hold and manage his property
is a serious thing
THUS REQD: Personal Notice and Presence of Incompetent in hearing
EVEN IF Minor >14y (Nery v. Lorenzo)
BEC rights of young are not to be ignored
WHERE immaturity calls for every procedural principle being
observed before their interest in property could be adversely
affected
WITH State acting as parens patriae
ESP where mothers could have an interest opposed to that of her
children
3. Opposition (93.4)
How: By filing a written opposition
Who: Any interested person
What: -contest the petition on the ground of
competency of the alleged incompetent, or the
unsuitability of the person for whom letters are prayed, and
-pray that the petition be dismissed, or
that letters of guardianship issue
to himself, or
to any suitable person named in the opposition.
4. Hearing (93.5)
Who must be present: the alleged incompetent must be present IF able to attend
> Inability to Attend refers to PHYSICAL CONDITION, and not
mere absence (Yangco v. CA)
What must be proved:
-it must be shown that the required notice has been given.
-thereupon the court shall hear the evidence of the parties
in support of their respective allegations
5. Appointment of Guardian (93.5)
When to appoint Guardian:
-if the person in question is an incompetent
THUS GC shall appoint a suitable guardian of his person or estate, or both,
with the powers and duties hereinafter specified.
- if the nonresident is incompetent
rendering a guardian necessary or convenient,
it may appoint a guardian for such estate. (93.6)
When Parents, Suitable Person is Guardian over Children (93.7)
-When the property of the child under parental authority
is worth two thousand pesos or less,
the father or the mother shall be his legal guardian,
without the necessity of court appointment.
46
-When the property of the child is worth more than two thousand pesos,
-the father or the mother shall be considered guardian of the property,
with the duties and obligation of guardians under these rules, and
shall file the petition required by 93.2.
-Court may, however, appoint another suitable person for good reasons.
Effectivity of Appt (Zafra-Sarte v. CA, citing Mercader v. Wislizenus)
Effectivity: Immediate BEC order declaring the incompetency and
appointing a guardian is good until reversed or set aside
Effect: Guardian authorized to do whatever is necessary to protect the
property of the incompetent under the direction of the Court IN SPITE of
appeal
eg Motion to hospitalize ward by guardian pending appeal
6. Service of Judgment (93.8)
Final orders or judgments under this rule
shall be served upon the civil registrar
of the municipality or city
where the incompetent person resides; or
where his property or part thereof is situated.
Qualifications for Guardianship
a) Residence (Guerrero v. Teran)
For Jurisdiction of Court and Welfare of Ward:
Nothing in the law requires the courts to appoint residents only
BUT guardian must be subject to the jurisdiction of GC
OTHERWISE difficulty in protecting the estates of deceased persons
b) Bond (94)
When to File:
Before a guardian appointed enters upon the execution of his trust, or
letters of guardianship issue,
he shall give a bond, in such sum as the court directs,
conditioned as follows:
a. To make and return to the court, within 3m,
a true and complete inventory of all the estate, real and personal,
of his ward which shall come
to his possession or knowledge or
to the possession or knowledge of any other person for him;
b. To faithfully execute the duties of his trust,
to manage and dispose of the estate according to these rules
for the best interests of the ward, and
to provide for the proper care, custody, and education of the ward;
c. To render a true and just account
of all the estate of the ward in his hands, and
of all proceeds or interest derived therefrom, and
of the management and disposition of the same,
-at the time designated by these rules and
-such other times as the court directs, and
-at the expiration of his trust to settle his accounts with the court
d. To deliver and pay over all the estate, effects, and moneys
remaining in his hands, or due from him on such settlement,
to the person lawfully entitled thereto
e. To perform all orders of the court by him to be performed. (94.1)
When Additional Bond Reqd: Whenever it is deemed necessary, court
may require a new bond to be given by the guardian, and
may discharge the sureties on the old bond from further liability
Reqt: after due notice to interested persons,
when no injury can result therefrom to those interested in the estate (94.2)
Liability on Bond
Every bond given by a guardian
shall be filed in the office of the clerk of the court, and,
may be prosecuted in the same proceeding or in a separate action
for the use and benefit
of the ward or of any other person legally interested in the estate
in case of the breach of a condition thereof (94.3)
When Released: Rendering of Final Acctg
Sale and Encumbrance of Real Property (95)
Conditions to authorize sale, encumber (95.1)
-when the income of an estate under guardianship is insufficient
to maintain the ward and his family, or
-when it appears that it is for the benefit of the ward
that -his real estate or some part thereof
be sold, or mortgaged or otherwise encumbered, and
-the proceeds thereof
put out at interest, or
invested in some productive security, or
in the improvement or security of other real estate of the ward
> Need not be stated BEC enough that it appears to the
satisfaction of the court that it is for the benefit of the ward
(Tavera v. El Hogar)
47
 d) Order to Sell (95.4): court shall order such sale or encumbrance
How (95.1)
a) Petition Grounds
the guardian may present a verified petition If, after full examination,
to the court by which he was appointed it appears that it is necessary, or would be beneficial to the ward,
setting forth such facts, and to sell or encumber the estate, or some portion of it
praying that an order issue authorizing the sale or encumbrance
> Petition by Guardian is JURISDL Content of Order
> Verification is NOT JURISDL (Tavera v. El Hogar) 1) sale or encumbrance
> Cannot be motu proprio by Guardian 2) manner: direction that estate ordered sold
be disposed of at either public or private sale,
b) Issuance of Notice subject to such conditions as to
If it seems probable that such sale or encumbrance the time and manner of payment, and security where part of payment is deferred,
is necessary, or as in the discretion of the court are deemed most beneficial to the ward.
would be beneficial to the ward, 3) disposition of the proceeds
the court shall schedule the hearing and for -the maintenance of the ward and his family, or
make an order directing -the education of the ward, if a minor, or for
-the NEXT OF KIN of the ward, and -the putting of the same out at interest, or
> those whose relationship is such that they are entitled -the investment of the same as the circumstances may require.
to share in the estate of the distributees (Tavera)
-all persons interested in the estate Court
-may authorize and require guardian to invest in real estate, otherwise
-to appear at a reasonable time and place therein specified the proceeds of sales or encumbrances, and
-to show cause why the prayer of the petition should not be any other of his ward's money in his hands,
granted (95.2) as shall be for the best interest of all concerned, and
-may make such other orders
for the management, investment, and disposition of the estate and effects,
c) Hearing as circumstances may require. (95.5)
At the time and place designated in the order to show cause, 4) causes why the sale. or encumbrance is necessary or beneficial
the court shall
-hear the proofs and allegations Nature of Order: Final Judgment
of the petitioner and - Effect: Gship Court loses jurisd
next of kin, and - Remedy: Independent action to annul
other persons interested,
their witnesses, and Prescription of Authority: 1y
-grant or refuse the prayer of the petition No order of sale granted in pursuance of this section
as the best interests of the ward require. shall continue in force more than one year after granting the same,
-make such order as to costs of the hearing as may be just (95.3) without a sale being had
> Hearing on the petition does not necessarily mean that witnesses testify > Automatic Termination of authority
or docs be produced, exhibited BEC provs of law on hearing were also
complied with IF e) Bond
-the court is satisfied that allegations of petition are true and -The original bond of the guardian shall stand as security
-the interested persons, close relatives of the ward did not object for the proper appropriation of the proceeds of the sale,
bec they themselves were interested - but the judge may, if deemed expedient, require an additional bond
in the scheme to organize a corporation as a condition for the granting of the order of sale.
to which all their shares in the prop were to be transferred (Tavera)

48
Duties and Liability of Guardians
Duration: Liable for losses only during the time that he was acting as such
Extent of Gship (96.1): A guardian appointed shall have
-the care and custody of the person of his ward, and
the management of his estate, or
-the management of his estate only as the case may be.
- the management of all the estate of the ward within the Philippines
re: guardian of the estate of a nonresident
Court with Jurisd:
no court other than that in which appointed such guardian
shall have jurisdiction over the guardianship (96.1)
Duties of Guardian
1. Pay Debts (96.2)
Every guardian must pay the ward's just debts
-out of his personal estate and the income of his real estate, if sufficient;
-out of his real estate upon obtaining an order for the sale or encumbrance thereof
if former is insufficient
held by the ward jointly or in common with others
Reqts:
-after hearing
-upon such notice to relatives of the ward as the court may direct, and
-a careful investigation as to necessity and propriety of proposed action.
6. Petition Court to Summon Persons Suspected (96.6)
How: Upon complaint of
-guardian or
-ward, or of
-any person having actual or prospective interest in estate of ward
as creditor, heir, otherwise,
What:
that anyone is suspected of having embezzled, concealed, or conveyed away
any money, goods, or interest, or a written instrument,
belonging to the ward or his estate
Remedy: the court may
-cite the suspected person to appear for examination
touching such money, goods, interest, or instrument, and
-make such orders as will secure the estate
against such embezzlement, concealment or conveyance.

2. Settle Accounts and Collect Debts (96.3) 7. Render Accounts and Inventories (96.7)
A guardian A guardian must render to the court
-Must settle all accounts of his ward, and -an inventory of the estate of his ward
-Must demand, sue for, and receive all debts due him within 3m after his appointment, and
-May compound debts due him and give discharges to the debtor *Estate of the ward described in the first inventory shall be appraised.
on receiving a fair and just dividend of the estate and effects In the appraisement, the court may request
with the approval of the court the assistance of one or more of the inheritance tax appraisers.
-an inventory and account
3. Represent Ward (96.3) annually after such appointment,
-Shall appear for and represent his ward -an inventory and appraisement
in all actions and special proceedings of property discovered, or succeeded to, or acquired by the ward
unless another person be appointed for that purpose. after an inventory had already been rendered
within 3m after such discovery, succession, or acquisition
4. Manage and Maintain (96.4)
-Must manage the estate of his ward frugally and without waste, and Remedy for Failure:
apply the income and profits thereof, so far as may be necessary, the rendition of any of which may be compelled
to the comfortable and suitable maintenance of the ward and his family, if any; upon the application of an interested person.
-May sell or encumber the real estate, upon being authorized by order so to do,
if such income and profits be insufficient for that purpose, and Form of Inventories and Accounts: Sworn
apply so much of the proceeds as may be necessary to such maintenance.
8. Present own account for allowance (96.8)
5. Assent to Partition of Property (96.5) How: guardian must present his account to the court for settlement and allowance
The court may authorize the guardian
to join in an assent to a partition of real or personal estate

49
 -its purpose is merely to inform him of whats happening THUS
When: sufficient that notice was given (Inchausti)
-Upon the expiration of a year from the time of his appointment, and
-as often thereafter as may be required,
Hearing (97.1)
Allowable Allowance: - Opposition: -guardian or
In the settlement of the account, -relatives of the ward, and
the guardian, other than a parent, shall be allowed -any other person, in the discretion of the court,
-the amount of his reasonable expenses may contest the right to the relief demanded, and
incurred in the execution of his trust and also -Witnesses may be called and examined
-such compensation for his services as the court deems just, by the parties or by the court on its own motion.
not exceeding 15% of net income of the ward.
When Terminated (97.1)
*NCC 736: Guardians and trustees cannot donate the property entrusted to them. If it be found that the person is no longer incompetent,
his competency shall be adjudged and
the guardianship shall cease.
Termination of Gship Nature of Proceedings for Restoration of Competency
-Continuation of Original Gship proceedings
1. By Petition on ground of Competency
-Jurisd with Gship Court BEC power to appoint with like power to restore
How: Petition the court to have present competency judicially determined (97.1)
shall be verified by oath, and
shall state that such person is then competent
2. By Removal (97.2): Court may
> has recovered mental faculties, legal capacity (Crisostomo v.
remove guardian and
Endencia)
compel him to surrender the estate of the ward
> Must be the SAME GROUND for incompetency (Inchausti placed
to the person found to be lawfully entitled thereto
under gship for mental incapacity but removed despite the
opposition of his mother that he would become a spendthrift
WHEN: -becomes
THUS court ruled that proper proceedings can later be instituted
-insane or
to protect him from wasteful proclivities)
-otherwise incapable of discharging his trust or
-unsuitable therefor, or
Who may Petition (97.1)
> Discretion of court (Bengson)
-A person who has been declared incompetent for any reason, or
-has wasted or mismanaged the estate, or
-his guardian,
-failed for 30d after it is due to render an account or make a return
-relative, or
-friend
REQT: upon reasonable notice to the guardian
EFFECT: court may appoint another in his place
Issuance of Notice for Hearing (97.1)
Upon receiving the petition, the court shall
-fix a time for hearing the questions raised thereby, and
3. By Resignation (97.2)
-cause reasonable notice thereof to be given
A guardian may resign
to the guardian of the person so declared incompetent, and
when it appears proper to allow the same; and
to the ward.
the court may appoint another in his place.
> Manner of Notice to ward is IMMATERIAL
BEC NOT Jurisdl
4. By loss of necessity (97.3)
WHERE -Court already has jurisd by virtue of pending gship
-The guardian of any person may be discharged by the court

50
when it appears, upon the application of the ward or otherwise,
that the guardianship is no longer necessary
> Nature of List for Removal: Exclusive (Vda. de Bengson v. PNB)

Not Grounds for Termination

- Death of ward does not terminate Gship over Property
- Inconvenience on the part of guardian to have to come to Mla from La Union to
obtain money for wards sustenance invalid BEC guardian should not be removed
except for the most cogent reasons (Bengson)

> Nature of Order for Termination: Final and Binding (Crisostomo)

Court was without jurisd after
the accounts of the guardian had been approved,
his bond cancelled, and
the record of the gship proceedings deemed closed and filed away

Service of Judgment
Final orders or judgments under this rule
shall be served upon the civil registrar of the municipality or city
where the minor or incompetent person resides or
where his property or part thereof is situated. (97.5)

Record Keeping @ RTC

When a justice of the peace or municipal court
takes cognizance of the proceedings
in pursuance of the provisions of these rules,
the record of the proceedings shall be kept as in the Regional Trial Court. (97.4)

51
GUARDIANSHIP OF MINORS 5. Secretary of Health in the case of an insane minor who needs to be
hospitalized

When the minor resides outside the Philippines but has property in the Philippines,
In General 1. any relative or
2. friend of such minor, or
3. any one interested in his property, in expectancy or otherwise
Governing Law: A.M. No. 03-02-05 SC, which shall be suppletory to the provisions of *BUT may petition the Family Court
the Family Code on guardianship for the appointment of a guardian over the property only.

Scope: petitions for guardianship over the person or property, or both, of a minor. WHERE TO FILE PETITION (3): Family Court of the province or city
(1) -where the minor actually resides
-where his property or any part thereof is situated IF he resides in a foreign country

GROUNDS OF PETITION
Procedure for Gship 1. death, continued absence, or incapacity of his parents;
2. suspension, deprivation or termination of parental authority;
3. remarriage of his surviving parent IF found unsuitable to exercise parental
A. PETITION authority; or
4. when the best interests of the minor so require.
CONTENTS OF PETITION
1. The jurisdictional facts; QUALIFICATIONS OF GUARDIANS.
2. The name, age and residence of the prospective ward; 1. moral character;
3. The ground rendering the appointment necessary or convenient; 2. physical, mental and psychological condition;
4. The death of the parents of the minor or the 3. financial status;
termination, deprivation or suspension of their parental authority; 4. relationship of trust with the minor;
5. The remarriage of the minors surviving parent; 5. availability to exercise the powers and duties of a guardian for the full
6. The names, ages, and residences period of the guardianship;
of relatives within the 4th civil degree of the minor, and 6. lack of conflict of interest with the minor; and
of persons having him in their care and custody; 7. ability to manage the property of the minor.
7. The probable value, character and location of the property of the minor; and
8. The name, age and residence WHO MAY BE APPOINTED GUARDIANS
of the person for whom letters of guardianship are prayed 1. GR: The father and the mother shall jointly exercise legal guardianship
over the person and property of their unemancipated common child
FORM OF PETITION without the necessity of a court appointment. (1)
- verified
- accompanied by a certification against forum shopping. E: In default of parents or a court-appointed guardian,
However, no defect in the petition or verification court may appoint a guardian of person, property, both, of a minor,
shall render void the issuance of letters of guardianship. observing as far as practicable, the following order of preference:
2. the surviving grandparent and in case several grandparents survive, the
court shall select any of them taking into account all relevant
WHO MAY PETITION FOR GSHIP (2) considerations;
On grounds authorized by law, 3. the oldest brother or sister >21y of the minor,
1. minor himself IF >14y unless unfit or disqualified;
2. any relative 4. the actual custodian >21y of the minor,
3. other person on behalf of a minor unless unfit or disqualified; and
4. Secretary of Social Welfare and Development 5. any other person, who in the sound discretion of the court,

52
 would serve the best interests of the minor. of the person or property, or both, of the minor.

B. Issuance of Notice G. Bond

When a petition for the appointment of a general guardian is filed, When filed
the court -shall fix a time and place for its hearing, and Before he enters upon the execution of his trust, or
-shall cause reasonable notice to be given letters of guardianship issue
to the persons mentioned in the petition,
including the minor if he is >14y, and How filed: A verified petition for approval of the bond
>Notice of hearing of the petition -shall be filed in the Family Court of the place where
shall be given to the NR minor the child resides
by publication or any other means the NR childs property or any part thereof is situated
as the court may deem proper -shall be docketed as a summary special proceeding in which all incidents and issues
-may direct other general or special notice to be given. regarding the performance of the obligations of a general guardian
shall be heard and resolved.
C. Case Study
The court shall order a social worker to When required to file bond
-conduct a case study of the minor and all the prospective guardians and -an appointed guardian may be required to post a bond
-submit his report and recommendation to the court for its guidance in such sum as the court shall determine
before the scheduled hearing. -whenever necessary,
-may intervene on behalf of the minor the court may require the guardian to post a new bond and
if he finds that the petition for guardianship should be denied. may discharge from further liability the sureties on the old bond
after due notice to interested persons,
D. Opposition if no injury may result therefrom to those interested in the property.
Any interested person may contest the petition
-by filing a written opposition Conditions of Bond
based on such grounds as: 1. To make and return to the court,
-the majority of the minor or within 3m after the issuance of his letters of guardianship,
-the unsuitability of the person for whom letters are prayed, and a true and complete inventory
-praying -that the petition be denied, or of all the property, real and personal, of his ward
-that letters of guardianship issue which shall come to his possession, knowledge or
to himself, or to any suitable person named in the opposition. to the possession, knowledge of any other person
in his behalf;
E. Hearing 2. To faithfully execute the duties of his trust,
What must be heard and proved at the hearing of the petition to manage and dispose of the property according to this rule
- the requirement of notice has been complied with for the best interests of the ward, and
- the evidence of the parties in support of their respective allegations to provide for his proper care, custody and education;
3. To render a true and just account
Who must be present of all the property of the ward in his hands, and
GR: prospective ward shall be presented to the court of all proceeds or interest derived therefrom, and
E: NR minor where the court may dispense with his presence of the management and disposition of the same,
at the time designated by this rule and
Conduct of Hearing: At the discretion of the court such other times as the court directs; and
-may be closed to the public and to settle his accounts with the court and
-the records of the case shall not be released without its approval deliver and pay over all the property, effects, and monies
remaining in his hands, or due from him on such settlement,
F. Appointment of Guardian to the person lawfully entitled thereto
When: If warranted, the court shall appoint a suitable guardian at the expiration of his trust

53
4. To perform all orders of the court and such other duties as may be required by upon obtaining an order for its sale or encumbrance
law.
2. To -settle all accounts of his ward, and
Where filed: Family Court -demand, sue for, receive all debts due him,
-compound for the same and give discharges to the debtor
When prosecuted: on receiving a fair and just dividend of the property and effects
in case of breach of any of its conditions, with the approval of the court
the guardian may be prosecuted in the same proceeding -appear for and represent the ward in all actions and special proceedings,
for the benefit of the ward or of any other person legally interested in the property. unless another person is appointed for that purpose;
3. To -manage the property of the ward frugally and without waste, and
Amount of bond: in such sum as the court shall determine -apply the income and profits thereon,
insofar as may be necessary,
lf Parents are Guardians: >10% of FMV, Income of Child >P50k to the comfortable and suitable maintenance of the ward;
the market value of the property or -sell or encumber the real or personal property
the annual income of the child if such income and profits be insufficient for that purpose
exceeds P50k, upon being authorized by the court to do so;
4. To -consent to a partition of real or personal property
the parent concerned shall furnish a bond owned by the ward jointly or in common with others
in such amount as the court may determine, upon authority granted by the court
but in no case less than 10% after hearing,
of the value of such property or annual income, notice to relatives of the ward, and a
to guarantee the performance of the obligations careful investigation as to the necessity and propriety
prescribed for general guardians. of the proposed action;
5. To submit to the court
H. Service of Judgment, Order a verified inventory of the property of his ward
The final and executory judgment or order within 3m after his appointment, and
-shall be served upon annually thereafter,
the Local Civil Registrar of the municipality or city where the minor resides and the rendition of which may be required
- shall be annotated in the corresponding title upon the application of an interested person;
by the Register of Deeds of the place where his property or part thereof is situated 6. To report to the court
who shall report to the court his compliance any property of the ward not included in the inventory
within 15d from receipt of the order. which is discovered, or succeeded to, or acquired by the ward
within 3m after such discovery, succession, or acquisition; and
7. To render to the court for its approval an accounting of the property
Duties of Guardian 1y from his appointment, and
Scope of Gship: A guardian shall have every year thereafter or
-the care and custody of the person of his ward and as often as may be required.
the management of his property, or 8. To file a verified petition
-only the management of his property. -setting forth:
-the management of all his property within the Philippines if NR minor -the income of a property under guardianship is insufficient
to maintain and educate the ward, or
Duties of Guardian -when it is for his benefit
1. To pay the just debts of the ward that his personal or real property or any part thereof
out of -the personal property and be sold, mortgaged or otherwise encumbered, and
-the income of the real property of the ward the proceeds invested in safe and productive security, or
if the same is sufficient; in the improvement or security of other realty
-the real property of the ward -praying that an order issue

54
authorizing the sale or encumbrance of the property -but the court may, if deemed expedient,
require an additional bond as a condition for the sale or encumbrance.
Show Cause
If the sale or encumbrance is necessary or would be beneficial to the ward,
Power and duty of the court
a) Request the assistance of one or more commissioners
the court shall order his next of kin and all person/s interested in the property
in the appraisal of the property of the ward
to appear at a reasonable time and place therein specified and
reported in the initial and subsequent inventories;
show cause why the petition should not be granted.
b) Authorize reimbursement to the guardian, other than a parent,
of reasonable expenses incurred in the execution of his trust, and
Remedies
allow payment of compensation for his services
At the time and place designated in the order to show cause,
as the court may deem just,
the court shall
< 10% of the net income of the ward, if any;
-hear the allegations and evidence of
otherwise, in such amount the court determines
the petitioner and next of kin, and
to be a reasonable compensation for his services; and
other persons interested
c) -require any person suspected of having embezzled, concealed, or disposed
their witnesses
-of any money, goods, interest, written instrument belonging to ward or
-grant or deny the petition as the best interests of the ward may require.
-of his property
upon complaint of
Order of Sale
-guardian,
-If, after full examination, it is necessary, or would be beneficial to the ward,
-ward
to sell or encumber the property, or some portion of it
-any person having actual, prospective interest in property of the ward,
- The authority to sell or encumber shall not extend beyond one year,
to appear for examination concerning any thereof and
unless renewed by the court.
-issue such orders as would secure the property
against such embezzlement, concealment or conveyance.
Disposition of Proceeds: the court
shall order such sale or encumbrance the proceeds of which shall be
-expended for the maintenance or the education of the ward, or
-invested as the circumstances may require.

shall specify the grounds for the sale or encumbrance and

may direct that the property ordered sold
be disposed of at public sale, v. Estate, Gship allowing Private
subject to such conditions
as to the time and manner of payment, and security
where a part of the payment is deferred.

may authorize and require the guardian to invest

-the proceeds of sales or encumbrances, and
-any other money of his ward in his hands, in realty or personalty
for the best interests of the ward, and
may make such other orders for the management, investment, and disposition
of the property and effects,
as circumstances may warrant.

Reqt of Bond
-The original bond of the guardian shall stand
as security for the proper appropriation
of the proceeds of the sale or encumbrance,

55
Termination of Guardianship

1. Removal: When a guardian

-becomes insane or
-becomes otherwise incapable of discharging his trust or
-is found thereafter to be unsuitable, or
-has wasted or mismanaged the property of the ward, or
-has failed to render an account or make a return for 30d after it is due,

Effect:
-upon reasonable notice to the guardian
the court may remove him as such and
require him to surrender the property of the ward
to the person found to be lawfully entitled thereto.
-court shall appoint a new one

2. Resignation: court may allow the guardian to resign for justifiable causes.
Effect:
-court shall appoint a new one.
-No motion for removal or resignation shall be granted
unless the guardian has submitted proper accounting of the property
the court has approved the same.

3. Majority or Death
When: the ward has come of age or has died
How: Court may terminate the guardianship
motu proprio or
upon verified motion of any person allowed to file a pet for gship
Notice: guardian shall notify the court of such fact within 10d of its occurrence.

Service of final and executory judgment or order

The final and executory judgment or order
shall be served upon -the Local Civil Registrar of the municipality or city
where the minor resides and
-the Register of Deeds of the province or city
where his property or any part thereof is situated.
-Both the Local Civil Registrar and the Register of Deeds
shall enter the final and executory judgment or
order in the appropriate books in their offices.

>> Upon reaching the majority age, does the gship over minors terminate
automatically? NO. There must be a Motion to Terminate the gship in order to
determine the lack of incompetence BUT the court can motu proprio terminate.

56
TRUSTEESHIP
TRUST
- an act by which a person acknowledges that the property, title to which he holds, is
held by him for the use of another (De Leon v. Molo-Peckson)
Administrator / Executor Trustee
Entire estate Specific property
No possession reqd Possession reqd
How Created
-Express: Intention in positive act (written instrument)
> those which are created either by:
- direct and positive acts of the parties
- some writing, deed, will
- words evincing an intention to create a trust (Heirs of Yap v. CA)
> Basis: NCC 1444. No particular words are required for the creation of an
express trust, it being sufficient that a trust is clearly intended.
> Document declaring the trust can be executed subsequent to the death
of the trustor as in the case of De Leon v. Molo-Peckson WHERE the heirs
executed a document, declaring therein the wishes of their predecessors-
in-interest over the land (parents) to donate the same donated land to a
third person > SC: the right creating or declaring a trust need not be
contemporaneous or inter-parties AND an express trust may be declared
by a writing made after the legal estate has been vested in the trustee
> cannot be established by parol evidence (Heirs of Yap v. CA)
NCC 1443. No express trusts concerning an immovable or any
interest therein may be proved by parol evidence.
- Implied: From Content or Action
> those which, without being express, are
- deducible from the nature of the transaction as matters of intent
[Resulting Trust]
- independently of the particular intention of the parties, as being
superinduced on the transaction by operation of law basically by
reason of equity [Constructive Trust]
> can be established by parol evi (Heirs of Yap v. CA)
a) RESULTING TRUST
- one that arises by implication of law and presumed always to
have been contemplated by the parties, the intention as to which
can be found in the nature of their transaction although not
expressed in a deed or instrument of conveyance
- based on the equitable doctrine that it is the more valuable
consideration that the legal title determines the equitable interest
in property
b) CONSTRUCTIVE TRUST
- not created by any word or phrase, either expressly or impliedly,
evincing a direct intention to create a trust; does not come about
by agreement or intention
- one that arises in order to satisfy the demands of justice
- comes about by operation of law construed against one who, by
fraud, duress, or abuse of confidence, obtains or holds the legal
right to property which he ought not, in equity and good
conscience, to hold (Heirs of Yap v. CA)
Trust cannot be created to violate the law: Consti XII.7 (ownership of
private lands) that a trust or a provision in the terms of a trust would be
invalid if the enforcement of the trust or prov is against the law even
though its performance does not involve the commission of a criminal or
tortuous act (Yap)
Can it be revoked? (DL v. MP)
GR: No BEC Voluntary Trust is irrevocable without the consent of the beneficiary
E: Reservation of the power to revoke
Consent of Beneficiary reqd? Y BUT Presumed if without Burden
- NCC 1446. Acceptance by the beneficiary is necessary. Nevertheless, if the trust
imposes no onerous condition upon the beneficiary, his acceptance shall be
presumed, if there is no proof to the contrary.
- Notice to the Beneficiaries of the existence of the trust and their Acceptance are
NOT IMPT BEC it is not essential to the existence of a valid trust and to the right of
the beneficiaries to enforce the same that they had knowledge thereof at the time of
its creation; neither is it necessary that the beneficiary should consent to the
creation of the trust > WHY: in case of a voluntary trust, the assent of the beneficiary
is not necessary to render it valid bec as a general rule, acceptance by the
beneficiary is PRESUMED
Can one be a trustee without court appointment? Yes
PROOF REQD
-clear, satisfactory, convincing; it cannot rest on vague, uncertain evidence, or a
loose, equivocal or indefinite declaration (DL)
57
WHEN APPOINTED (98.1): When a trustee is necessary to carry into effect 3) Alien Trustee
the provisions of a will or written instrument When land in the Philippines is held in trust
for persons resident here
1) No Trustee Appointed: by a trustee who derives his authority from without the Philippines,
If a testator has omitted in his will to appoint a trustee in the Philippines, such trustee shall be ordered to apply to the court for appt as trustee
and if such appointment is necessary to carry into effect the provisions of the will on petition filed in the Regional Trial Court
(98.2) of the province where the land is situated, and
after due notice to all persons interested,
2) No More Trustee Appointed and Substituted: OTHERWISE upon his neglect or refusal to comply with such order,
When a trustee under a written instrument declines, resigns, dies, or is removed the court shall declare such trust vacant, and
before the objects of the trust are accomplished, and appoint new trustee in whom the trust estate shall vest
no adequate provision is made in such instrument for supplying the vacancy (98.3) in like manner as if he had been originally appointed
by such court (98.4)
> Non-Bonding Trustee as Declining (98.5)
Before entering on the duties of his trust,
a trustee shall file with the clerk of the court having jurisdiction of the trust WHO APPOINTS (98.1): RTC
a bond in the amount fixed by the judge of said court, -in which the will was allowed,
payable to the Government of the Philippines and if it be a will allowed in the Philippines,
sufficient and available for the protection of any party in interest, -in which the property, some portion thereof, affected by the trust
OTHERWISE is situated.
a trustee who neglects to file such bond
shall be considered to have declined or resigned the trust
WHO CAN BE APPOINTED (98.2)
> How Refused - If trustee does not accept: - New trustee can act alone or jointly with the others, as the case may be (98.3)
GR: Trust subsists and can be assigned to another
NCC 1445. No trust shall fail because the trustee appointed - No person succeeding to a trust
declines the designation, unless the contrary should appear in the as executor or administrator of a former trustee
instrument constituting the trust. shall be required to accept such trust.
E: If trustee was chosen on the basis of his personal qualifications THUS trust
would be void if not accepted May E/A petition to be named trustee?
GR: No.
> How Resigned (98.8) E: But can petition to appoint a trustee
- A trustee, whether appointed by the court or under a written instrument,
may resign his trust
if it appears to the court proper to allow such resignation.
REQTS (98.2; 98.3)
> How Removed (98.8): Essential / InInUn 1) Prior Due Notice
The proper Regional Trial Court may, to all persons interested
-remove a trustee
if such removal appears essential in the interests of the petitioners 2) Bond (98.5)
upon petition of the parties beneficially interested and Before entering on the duties of his trust,
after due notice to the trustee and hearing, a trustee shall file with the clerk of the court having jurisdiction of the trust
- remove a trustee who is a bond in the amount fixed by the judge of said court,
insane or otherwise incapable of discharging his trust or payable to the Government of the Philippines and
evidently unsuitable therefor sufficient and available for the protection of any party in interest,
after due notice to all persons interested and

58
a trustee who neglects to file such bond
shall be considered to have declined or resigned the trust;
BUT EXEMPTION FROM BOND (98.5): Request of Testator, Beneficiaries
court may:
-exempt, until further order, a trustee under a will from giving a bond
when the testator has directed or requested such exemption, and
- so exempt any trustee
when all persons beneficially interested in the trust, being of full age,
request the exemption.
- cancel such exemption at any time, and
the trustee required to forthwith file a bond.
CONDITIONS OF BOND (98.6)
deemed to be a part of the bond whether written therein or not:
1. INVENTORY
That the trustee will make and return to the court,
at such time as it may order,
a true inventory of all the real and personal estate belonging to him as
trustee,
which at the time of the making of such inventory
shall have come to his possession or knowledge
EXEMPTION:
But when the trustee is appointed
as a successor to a prior trustee,
the court may dispense with the making and return of inventory,
if one has already been filed, and
in such case the condition of the bond
shall be deemed to be altered accordingly.
APPRAISAL REQT (98.7)
When an inventory is required to be returned by a trustee,
the estate and effects belonging to trust shall be appraised and
the court may order one or more inheritance tax appraisers
to assist in the appraisement.
The compensation of the trustee shall be fixed by the court,
if it be not determined in the instrument creating the trust.
2. FAITHFUL DISCHARGE OF TRUST
That he will manage and dispose of all such estate, and
faithfully discharge his trust in relation thereto,
according to law and
will of the testator or
provisions of the instrument or
order under which he is appointed
3. TRUE ACCOUNT
That he will render
-a true account of the property in his hands and
of the management and disposition thereof
upon oath
at least once a year until his trust is fulfilled,
unless he is excused therefrom in any year by the court,
-such other accounts as the court may order
4. DELIVERY
That at the expiration of his trust
he will -settle his accounts in court and
-pay over and deliver all the estate
remaining in his hands, or
due from him on such settlement,
to the person or persons entitled thereto.
POWERS OF TRUSTEE
- Only Trustee: same rights, powers, and duties, and in whom the estate shall vest,
as if he had been appointed by the testator (98.2)
- New Trustee: same powers, rights, and duties as if he had been originally
appointed, and the trust estate shall vest in him in like manner as it had vested or
would have vested, in the trustee in whose place he is substituted (98.3)
court may order such conveyance to be made
by the former trustee, his representatives, other remaining trustees,
as may be necessary or proper
to vest the trust estate in the new trustee,
either alone or jointly with the others
- Power to Sell
When: sale or encumbrance of any real or personal estate held in trust
is necessary or expedient
How: the court having jurisdiction of the trust
may order such sale or encumbrance to be made,
on petition and after due notice and hearing, and
the reinvestment and application of the proceeds thereof
in such manner as will best effect the objects of the trust.
Procedure:
petition, notice, hearing, order of sale or encumbrance, and record of proceedings,
shall conform as nearly as may be
to the provisions concerning the sale or encumbrance
by guardians of the property of minors or other wards.
59
ADOPTION OF MINORS

Nature of Proceedings:
- judicial > THUS only via JUDICIAL DECREE
- in rem
- not adversarial

Purpose: to establish legitimate paternity

Governing Laws:

1) A.M. No. 02-6-02 for Rules on Adoption

What:
Domestic Adoption of Filipino children by Filipinos or Resident Aliens
Inter-Country Adoption of Filipino Child by NR Aliens or NR Filipinos

Where:
Domestic FC of Residence of Adopter (Fil / 3y Alien Resident)
IC FC of Residence, Location of Adoptee, or
Inter-country Adoption Board

Priority: Extended Family THEN Unrelated

Effectivity of Judicial Decree: Retroacts to Filing of Petition

2) R.A. 8552: Domestic Adoption

3) R.A. 8043: Inter-Country Adoption

Nature: Last Resort
What: Foreign Adoption of Filipino child by NR Aliens and Filipinos via Inter-
Country Adoption Board

60
CUSTODY OF MINORS 2. Childs Choice - permitting the child > 10y to choose
Governing Law: A.M. No. 03-04-04 and 99.6 and 99.7
which parent it prefers to live with
Nature: In Personam
3. Other Parent IF the parent so chosen is unfit to take charge of the
Adversarial b/w those with custody and those seeking it
child by reason of moral depravity, habitual drunkenness, incapacity, or
poverty.
CUSTODY WHEN PARENTS ARE APART (99.6)
When: husband and wife are divorced (LS)
4. Paternal or maternal grandparent of the child
living separately and apart from each other (de facto)
5. Oldest brother or sister
6. Some reputable and discreet person
How: question as to care, custody, control of a child or children of their marriage
IF it appears that both parents are improper persons
is brought before a Regional Trial Court
to have the care, custody, and control of the child
by petition or as an incident to any other proceeding
> eg: Habeas Corpus BUT alleged, raised as issue w/o objection (Sy v. CA)
b) commit it to any suitable asylum, children's home, or benevolent society
What: court shall...
c) order either or both parents to support or help support said child,
a) award the care, custody, and control of each such child as will be for its best
irrespective of who may be its custodian,
interest, upon hearing the testimony as may be pertinent
in conformity with the provisions of the Civil Code
Preferences:
d) make any order that is just and reasonable
Legal Separation: Innocent Spouse (Sy v. CA)
permitting the parent who is deprived of its care and custody
to visit the child or have temporary custody thereof
De Facto:
1. Mother if < 7: No child under seven years of age
shall be separated from its mother,
Remedy of Parent: Appeal
unless the court finds there are compelling reasons therefor
Either parent may appeal
> Mandatory! To avoid many a tragedy where a mother has seen
from an order made in accordance with the provisions of this section
her baby torn away from her. No man can sound the deep sorrows
of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for compelling reasons
CUSTODY OVER VAGRANT OR ABUSED CHILD 99.7
for the good of the child (Perez v. CA, citing Lacson v. San Jose-
When: parents of any minor child
Lacson)
- are dead
> Not Compelling Reasons:
- have abandoned it by reason of long absence or legal or physical disability
- Adultery by mother BEC Imprisonment and LS
- cannot support it through vagrancy, negligence, or misconduct, or neglect
sufficient (contrary to Querubin!)
- refuse to support it
- Moral dereliction will not have any effect on the baby
- treat it with excessive harshness
who is as yet unable to understand her situation
- give it corrupting orders, counsels, or examples
- cause or allow it to engage in begging, or
> When Unfit to exercise sole parental authority
to commit offenses against the law
Neglect Abadonment Unemployment
Immorality Habitual Drunkenness Drug Addiction
What: Taking and Commitment
Maltreatment of child Insanity
- How: upon petition filed by some reputable resident of the province
setting forth the facts
Communicable disease
- Who: Proper Regional Trial Court
- What: - may issue an order to show cause
> Relevant Factors: Material resources, social and moral
why the child should not be taken from its parents, if living
situations

61
against such parents for show cause, or,
the fiscal of the province
if the parents are dead or cannot be found
at a time and place fixed in the order

- may make an order

a) taking it from its parents, if living
if upon the hearing it appears
that the allegations of the petition are true, and
that it is for the best interest of the child,
b) committing it
to any suitable orphan asylum, children's home, benevolent society, person
to be ultimately placed, by adoption or otherwise,
in a home found for it by such asylum, children's home, society, or person.

62
HOSPITALIZATION OF INSANE PERSONS 4. Discharge and Order of Release (101.4)
When: person ordered to be committed to a hospital or other place for the insane
What to File (101.1) -is temporarily or permanently cured, or
Petition for the commitment of a person to a hospital or other place for the insane -may be released without danger
in the opinion of the Secretary of Health > MANDATORY (Chin Ah Foo)
Where to File (101.1) How: Insane person may file the proper petition
Regional Trial Court of the province where the person alleged to be insane is found with the Regional Trial Court which ordered the commitment.

Who Files (101.1) Representation of the Secretary of Health

Secretary of Health in all cases where It shall be the duty of the provincial fiscal or fiscal of the City of Manila
-in his opinion, to -prepare the petition for the Secretary of Health and
such commitment is for the public welfare, or for the welfare of said person -represent him in court in all proceedings
-who, in his judgment, is insane, and arising under the provisions of this rule (101.5)
-such person or the one having charge of him
is opposed to his being taken to a hospital or other place for the insane. Effect of Hospitalization on Prop:
> THUS Possible that he already has guardian - Goes to guardian IF Insane already has a guardian
Process - If no guardian, a petition for gship over properties may be filed
1. Petition
Nature of Order of Commitment and Discharge
2. Notice (101.2) Final and Appealable
If the petition filed is sufficient in form and substance,
the court shall
- fix a date for the hearing thereof
by an order reciting the purpose of the petition,
- order that a copy of such order be served on
-person alleged to be insane, and
-one having charge of him, or
-such of his relatives residing in the province, city
as judge may deem proper
- order the sheriff to produce the alleged insane person, if possible,
on the date of the hearing

3. Hearing and Order of Commitment (101.3)

Upon satisfactory proof,
in open court on the date fixed in the order,
-that the commitment applied for is
for the public welfare or
for the welfare of the insane person, and
-that his relatives are unable for any reason to take proper custody and care of him,

the court
-shall order his commitment to such hospital or other place for the insane
as may be recommended by the Secretary of Health.
-shall make proper provisions for the custody of property or money
belonging to the insane
until a guardian be properly appointed.

63
CHANGE OF NAME - Adversarial BEC others may be prejudiced thus can oppose

NAME Governing Rules

- word or combination of words by which a person is known and identified, and R.A. No. 9048 > change of name without judicial order > Clerical and First Name
distinguished from others, for the convenience of the world at large in addressing
him, or in speaking of or dealing with him (R v. Hernandez) Rule 103 > change of whole name > Substantial changes and correction
> does not distinguish b/w Filipinos and aliens
Parts (Hernandez)
1. Given, Proper Name Rule 108 > substantial changes (R v. Cagandahan)
- that which is given to the individual at birth or at baptism to distinguish him from
other individuals
- may be freely selected by the parents for the child
2. Surname, Family Name
- that which identifies the family to which he belongs and is continued from parent
to child
- fixed by law

Nature of Name
- Personal and Public Interest that every person must have a name (Hernandez)
> NCC 376: No person can change his name or surname without judicial
authority
> State has an interest in the names borne by individuals for purposes of
identification (Haw Liong v. R)
> Discretionary with the court (Secan Kok)
IMPLICATION:
- Name entered in the civil register is the persons official name WHERE
name or surname cannot be changed without judicial authority BEC
Change of Name is a mere privilege, not a matter of right, addressed to the
sound discretion of the court, which has the duty to consider carefully the
consequences of a change of name and to deny the same unless weighty
reasons are shown
- Change of Name is a privilege and not a matter of right THUS before a
person can be authorized to change the name given him either in his
certificate of birth or civil registry, he must show proper or reasonable
cause or any compelling reason which may justify such change (Haw
Liong)
- WHY PUBLIC INTEREST: petitioner might be in a rogues gallery or hiding
to avoid service of sentence or compliance with a judgment in a criminal
case, or could have escaped from prison; if an alien, he might have given
cause for deportation or might be one against whom an order of
deportation was issued; that the new name the petitioner desires to adopt
may be similar to that of a respectable person and the latter might have evi
that petitioner is of unsavory reputation that might impair his own good
name (Secan Kok)

-In rem

64
65
 Rule 103 R.A. 9048 (March 22, 2001)
When Substantial Changes Clerical, Typographical Errors and First Name or Nickname (1)
9048.1: No entry in a civil register shall be changed or corrected
without a judicial order CLERICAL OR TYPOGRAPHICAL ERRORS - a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing an entry in
the civil register that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other existing
record/s: Provided, however, That no correction must involve the change of
nationality, age, status or sex of the petitioner.

FIRST NAME - a name, nickname given to a person which may consist of one or
more names in addition to the middle and last names

*All petitions for the clerical or typographical errors and/or change of first names
or nicknames may be availed of only once.
Who can A person desiring to change his name shall present the petition (103.1) Any person having direct and personal interest
file Some other person on his behalf (103.2) in the correction of a clerical or typographical error in an entry and/or
change of first name or nickname in the civil register
may file, in person
What to A petition for change of name A verified petition in the form of an affidavit,
file which shall be signed and verified subscribed and sworn to
by the person desiring his named changed, or before any person authorized by the law to administer oaths
some other person on his behalf (103.2)
Where to -Regional Trial Court of the province in which he resides, or, -with the local civil registry office of the city or municipality
file -Juvenile and Domestic Relations Court, in the City of Manila (103.1) where the record being sought to be corrected or changed is kept
- with the local civil registrar of the place
where the interested party is presently residing or domiciled
in case petitioner has already migrated to another place in the country and
it would not be practical for such party,
in terms of transportation expenses, time and effort
to appear in person before the local civil registrar
keeping the documents to be corrected or changed
The two local civil registrars concerned
will then communicate to facilitate the processing of the petition.
- with the nearest Philippine Consulates
for citizens of the Philippines
who are presently residing or domiciled in foreign countries
Contents 1. That the petitioner has been a bona fide resident of the province -state the particular erroneous entry or entries,
where the petition is filed which are sought to be corrected and/or the change sought to be made
for at least 3y prior to the date of such filing -set forth facts necessary to establish the merits of the petition
2. The cause for which the change of the petitioner's name is sought; -show affirmatively that the petitioner is competent to testify to the matters stated
3. The name asked for (103.2) -be supported with the following documents:
(1) A certified true machine copy
REQD IN TITLE, CAPTION of the certificate or page of the registry book
both the title or caption of the petition and its body shall recite containing the entry or entries sought to be corrected or changed.
1. the name/s or aliases of the applicant (2) At least two public or private documents
2. the cause for which the change of name/s, aliases is sought showing the correct entry or entries
3. the new name asked for (Secan Kok v. R) upon which the correction or change shall be based; and

Grounds Proper, Reasonable, Convincing Causes Justifying Change of Name (Hernandez)
UsUsUsUs 1. Ridiculous, Dishonorable, Extremely difficult to write, pronounce
DEm 2. As a legal consequence of a change of status, eg legitimation or adoption
Haw > R v. Hernandez: Adoptive parent cannot change given name
Liong 3. To avoid confusion
4. When one has continuously used and had been known since childhood by a
Filipino name and was unaware of alien parentage
5. Based on sincere desire to adopt a Filipino name to erase signs of former
alienage, all in good faith and without prejudice to anybody
6. When the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or would prejudice public
interest
Process 1. Petition
2. Notice (103.3)
If the petition filed is sufficient in form and substance,
the court by an order reciting the purpose of the petition
-shall fix a date and place for the hearing thereof, and
not be within 30d prior to an election
nor within 4m after the last publication
of the notice
-shall direct that a copy of the order be published
before the hearing
at least once a week for three successive weeks
in some newspaper of general circulation
published in the province,
as the court shall deem best.
3. Hearing (103.4)
Parties
- Any interested person may
appear at the hearing and oppose the petition
- Solicitor General or the proper provincial or city fiscal
shall appear on behalf of the Government of the Republic
> MANDATORY
4. Judgment (103.5)
Upon satisfactory proof in open court on the date fixed in the order
(3) Other documents which
the petitioner or the city or municipal civil registrar or the consul general
may consider relevant and necessary for the approval of the petition.
(4) Certification from the appropriate law enforcement agencies
that he has no pending case or no criminal record
in case of change of first name or nickname
-be published at least once a week for 2 consecutive weeks
in a newspaper of general circulation
in case of change of first name or nickname
- filed in 3 copies (petition and supporting papers) as follows:
first copy to concerned city, municipal civil registrar, the consul general;
second copy to the Office of the Civil Registrar General; and
third copy to the petitioner
(1) The petitioner finds the first name or nickname to be
ridiculous,
tainted with dishonor or
extremely difficult to write or pronounce.
(2) The new first name or nickname
has been habitually and continuously used by the petitioner and
he has been publicly known by that by that first name or nickname
in the community: or
(3) The change will avoid confusion.
1. Petition and Fees
The city or municipal civil registrar or the consul general
shall be authorized to collect reasonable fees
as a condition for accepting the petition.
An indigent petitioner shall be exempt from the payment of the said fee.
2. Publication (first name change)
3. Decision and Transmission
City or municipal civil registrar or the consul general
to whom the petition is presented
-shall examine the petition and its supporting documents
-shall post the petition in a conspicuous place provided for that purpose
for 10d consecutive
after he finds the petition and its supporting documents
sufficient in form and substance.
-shall act on the petition and
-shall render a decision not later than 5 working days after the completion of
the posting and/or publication requirement
-shall transmit a copy of his decision
together with the records of the proceedings
to the Office of the Civil Registrar General
within 5 working days from the date of the decision.
4. Appeal
IN CASE OF APPROVAL > Auto review
 -that such order has been published as directed and
-that the allegations of the petition are true,
-that proper and reasonable cause appears
for changing the name of the petitioner
the court shall adjudge that such name be changed
in accordance with the prayer of the petition.
5. Service of Judgment to Civil Registrar (103.6)
Judgments or orders rendered in connection with this rule
shall be furnished the civil registrar of the municipality or city
where the court issuing the same is situated,
who shall forthwith enter the same in the civil register.
The CIVIL REGISTRAR GENERAL
-shall exercise the power to impugn such decision
within 10 working days
from receipt of the decision granting a petition,
by way of an objection based on the following grounds:
(1) The error is not clerical or typographical;
(2) The correction of an entry or entries in the civil register
is substantial or controversial as it affects the civil status of a person; or
(3) The basis used in changing the first name or nickname of a person
does not fall under Section 4.
-shall immediately notify city, municipal civil registrar or the consul general
of the action taken on the decision.
OTHERWISE
If the civil registrar general fails to exercise
his power to impugn the decision
of the city or municipal civil registrar or of the consul general
within the period prescribed herein,
such decision shall become final and executory
City or municipal civil registrar or the consul general
shall notify the petitioner of such action
upon receipt of the notice thereof
Petitioner may
-seek reconsideration with the civil registrar general or
-file the appropriate petition with the proper court.
IN CASE OF DENIAL > Petitioner may appeal
Where petition is denied by city, municipal civil registrar, consul general,
the petitioner may either
-appeal the decision to the civil registrar general or
-file the appropriate petition with the proper court.
CANCELLATION OR CORRECTION OF ENTRIES (4) legal separations;
(5) annulments of marriage;
IN THE CIVIL REGISTRY (108) (6) judgments declaring marriages void from the beginning;
(7) legitimations;
(8) adoptions;
Nature of Changes (9) acknowledgments of natural children;
-Substantial changes (Cagandahan citing RA 9048) (10) naturalization;
- Clerical, spelling, typographical, other innocuous errors in the civil registry and NOT (11) loss, or (12) recovery of citizenship;
Contentious alterations which may be allowed only in adversarial proceedings in which (13) civil interdiction;
all interested parties are impleaded and due process is properly observed (Braza v. City (14) judicial determination of filiation;
Civil Registrar of Himamaylan City, Negros Occidental) (15) voluntary emancipation of a minor; and
> Reconcile (Mj): (16) changes of name.
Cagandahan refers to substantial correction in entry (sex in BC)
Braza refers to changes of status via correction in entry but which cannot be Change of Sex in Birth Certificate (Cagandahan)
done bec status cannot be attacked collaterally, ie paternity, filiation and - it is not a mere clerical, typographical error but a substantial change for which
marriages nullity the applicable procedure is 108
- INTERSEX: where the person is biologically or naturally intersex, the
Scope of Entries Subject to Cancellation, Correction (108.2) determining factor in his gender classification would be what the individual,
Upon good and valid grounds having reached the age of majority, with good reason thinks of his/her sex BEC
the following entries in the civil register may be cancelled or corrected: he is the one who has to live with his intersex anatomy and to him belongs the
1. births human right to the pursuit of happiness and of health and the primordial choice
2. marriages of what courses of action to take along the path of his sexual devt and
> Remedy under FC 26.2 where a marriage between a Filipino citizen and a foreigner maturation (Cagandahan)
validly celebrated and a divorce thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry What to file (108.1)
under Philippine law > Available only to the Filipino Spouse BUT Remedy of Alien Verified petition for the cancellation, correction of any entry recorded in the civil registry
Spouse is Recognition of Foreign J of Divorce via 39.48 ROC (Corpuz v. Sto. Tomas)
3. deaths Who may file
4. legal separations Any person interested
5. judgments of annulments of marriage in any act, event, order or decree concerning the civil status of persons
6. judgments declaring marriages void from the beginning which has been recorded in the civil register (108.1)
7. legitimations
8. adoptions Where to file
9. acknowledgments of natural children Regional Trial Court of the province where the corresponding civil registry is located
10. naturalization
11. election, loss or recovery of citizenship Process
12. civil interdiction 1. Petition
13. judicial determination of filiation
14. voluntary emancipation of a minor 2. Notice (108.4)
15. changes of name Upon the filing of the petition,
the court shall, by an order,
NCC 407: Acts, events and judicial decrees -fix the time and place for the hearing of the same, and
concerning the civil status of persons shall be recorded in the civil register. -cause reasonable notice thereof to be given to the persons named in the petition
> Includes those occurring AT or AFTER birth (Cagandahan) -cause the order to be published once a week for three consecutive weeks
in a newspaper of general circulation in the province.
NCC 408: The following shall be entered in the civil register:
(1) Births;
(2) marriages;
(3) deaths;
3. Opposition and Hearing
Indispensable Parties (108.3)
-civil registrar and
-all persons who have or claim any interest which would be affected thereby
shall be made parties to the proceeding
> In R v. Cagandahan: Substantial compliance with 108.3 when CR not
impleaded as respondents BUT was furnished a copy of the petition

Opposition (108.5)
Civil registrar and any person having or claiming any interest
may, within 15d from notice of the petition, or
from the last date of publication of such notice,
file his opposition thereto.

Orders of the Court (108.6)

The court in which the proceedings is brought
-may make orders expediting the proceedings, and
-may also grant preliminary injunction
for the preservation of the rights of the parties pending such proceedings.

4. Decision (108.7)
After hearing, the court may either
-dismiss the petition or
-issue an order granting the cancellation or correction prayed for.

5. Annotation (108.7)
In either case, a certified copy of the judgment shall be served
upon the civil registrar concerned who shall annotate the same in his record.
RECOGNITION OF MINOR NATURAL CHILDREN certain person is not really the child of the latter, the putative parent should
thus be given the opportunity to affirm or deny the childs filiation (Uyguangco
v. CA)
Nature
- Not a special proceeding but an ordinary civil action with the Family Court HOW TO IMPUGN IL/LEGITIMACY
- 105 no longer relevant BEC it refers to JUDICIAL APPROVAL OF VOLUNTARY When to file (FC 170)
RECOGNITION OF MINOR NATURAL CHILDREN BUT in FC, childrens filiation is only The action to impugn the legitimacy of the child
either legitimate or illegitimate and under FC 176: - shall be brought within 1y
FC 176. Illegitimate children from the -knowledge of the birth or
GR: -its recording in the civil register,
shall use the surname and -discovery or knowledge
shall be under the parental authority of their mother, and of the birth of the child or of the fact of registration of said birth,
shall be entitled to support in conformity with this Code. whichever is earlier
if the birth of the child has been concealed from or was unknown to
E: may use the surname of their father the husband or his heirs
if their filiation has been expressly recognized by the father if the husband or, in a proper case, any of his heirs,
-through the record of birth appearing in the civil register, or should reside in the city or municipality
-when an admission in a public document or private handwritten instrument where the birth took place or was recorded.
is made by the father. - shall be brought within 2y
Provided, the father has the right to institute an action if the husband or, in his default, all of his heirs
before the regular courts do not reside at the place of birth or where it was recorded
to prove non-filiation during his lifetime. (R.A. 9255) but reside in the Philippines
- shall be brought within 3y
if the husband or, in his default, all of his heirs
HOW TO ESTABLISH FILIATION (172) do not reside at the place of birth or where it was recorded and
do reside abroad.
Evi Needed - shall be brought within 5y
The filiation of il/legitimate children is established by any of the following: From the time the cause of action accrued
(1) The record of birth appearing in the civil register or a final judgment; or In cases of impugning legitimation (182)
(2) An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned. Who can file (171)
(3) The open and continuous possession of the status of a legitimate child GR: Husband
(4) Any other means allowed by the Rules of Court and special laws E: Heirs of the husband may impugn the filiation of the child
(1) If the husband should die
When to File and Who before the expiration of the period fixed for bringing his action;
- Legitimate Children (173): The action to claim legitimacy may be brought (2) If he should die
i) by the child during his or her lifetime after the filing of the complaint without having desisted therefrom
ii) by the heirs should the child die during minority or in a state of insanity (3) If the child was born after the death of the husband
In these cases, the heirs shall have a period of 5y (4) Legitimation may be impugned only by those who are prejudiced in their rights,
within which to institute the action. within five years from the time their cause of action accrues (182)

- Illegitimate Children (175): Same but Diff Pd

GR: Child during lifetime
Heirs within 5y
E: Ground is 3 and 4
Must be during lifetime of Alleged Parent
BEC Unlike legit children who are publicly recognized, illegit children are
usually begotten and raised in secrecy and without the legitimate family being
aware of their existence and who can then be sure of their filiation but the
parents themselves > Suppose the child claiming to be the illegit child of a
CONSTITUTION OF THE FAMILY HOME Dissolution
1) petition of the person who has constituted the same
- written consent
What is the FAMILY HOME of his or her spouse and
- The family home, constituted jointly by the husband and the wife or by an unmarried of at least one-half of all the other beneficiaries
head of a family, is the dwelling house where they and their family reside, and the land on who are eighteen years of age or over
which it is situated (FC 152) GRANTED if it is satisfactorily shown
- The family home is the dwelling house where a person and his family reside, and the that the best interest of the family
land on which it is situated (NCC 223) requires the dissolution of the family home.

How Constituted 2) legal separation or annulment of marriage

I. Under the FAMILY CODE
How
The family home is deemed constituted on a house and lot
from the time it is occupied as a family residence (153)
Duration (153)
From the time of its constitution and
so long as any of its beneficiaries actually resides therein,
the family home continues to be such
> Who are the Beneficiaries of a family home (153)
(1) The husband and wife, or an unmarried person who is the head of a family;
(2) Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate,
-who are living in the family home and
-who depend upon the head of the family for legal support.
family home shall be dissolved
*Effect of Death of Person Constituting: Not dissolved
unless he desired otherwise in his will
> heirs cannot ask for its partition during the first 10y
following the death of the person constituting the same,
unless the court finds powerful reasons therefor.
b. Extrajudicial
-Public instrument under oath
wherein a person declares that he thereby establishes a family home
out of a dwelling place with the land on which it is situated AND
- Recording in the Registry of Property > operative act which creates
the family home

II. Under the CIVIL CODE

a. Judicial
Verified petition to the Court of First Instance
by the owner of the property
-published once a week for three consecutive weeks
in a newspaper of general circulation

Creditors, mortgagees and all other persons

who have an interest in the estate
shall be notified of the petition, and
given an opportunity to present their objections thereto.

Approval:
-actual value of the proposed family home
does not exceed P20k, or P30 in chartered cities, and
-no third person is prejudiced
-debtor gives sufficient security for the debt
should any creditor whose claim is unsecured
oppose the establishment of the family home

Recording of Order in Registry of Property

 ABSENTEES (107)
How
Appointment of Representative (107.1) Declaration of Absence (107.2) 1. Petition for the declaration of his absence and
When the appointment of a person to represent him provisionally
-When a person disappears -After the lapse of two years in all that may be necessary (107.3)
from his domicile, from his disappearance and
-his whereabouts being unknown, and without any news about the absentee or since Contents
-without having left an agent to administer his the receipt of the last news
(a) The jurisdictional facts;
property, or
the power conferred upon the agent has expired -After the lapse of five years (b) The names, ages, and residences
in case the absentee has left a person in charge - of the heirs instituted in the will, copy of which shall be presented, and
> can be within 2y BEC for provisional of the administration of his property -of the relatives who would succeed by the law of intestacy;
representation (c) The names and residences of creditors and others
Who can Petition (107.1) (a) The spouse present; who may have any adverse interest over the property of the absentee;
a) Any interested party (b) The heirs instituted in a will, (d) The probable value, location and character
b) Relative who may present an authentic copy of the same; of the property belonging to the absentee.
c) Friend (c) The relatives who would succeed by the law
of intestacy; and
> Petition for Declaration of Absence can be combined with a Pet. for
(d) Those who have some right over the
property of the absentee subordinated to the Administration TO protect the interests and properties of the absentee, and not
condition of his death (107.2) of the administrator (Tol-Noquera v. Villamor)
Where
-RTC of the place where the absentee resided 2. Notice and Publication (107.4)
before his disappearance When a petition for the appointment of a representative, and/or
-Juvenile and Domestic Relations Court for the declaration of absence is filed,
on the City of Manila the court shall fix a date and place for the hearing thereof
Effectivity Declaration of Absence shall not take effect where all concerned may appear to contest the petition.
Issuance of order until 6m after its publication
in -a newspaper of general circulation
designated by the court and Copies of the notice of the time and place fixed for the hearing
-Official Gazette. shall be served at least 10d before the day of the hearing upon
> NCC 386. -the known heirs, legatees, devisees,
The judicial declaration of absence -creditors and
shall not take effect -other interested persons, and
until 6m after its publication shall be published once a week for three consecutive weeks
in a newspaper of general circulation prior to the time designated for the hearing,
Who can be appointed (107.7)
in a newspaper of general circulation in the province or city
1. spouse present shall be preferred 1. spouse present shall be preferred
when there is no legal separation. when there is no legal separation.
where absentee resides, as the court shall deem best.
2. any competent person 2. any competent person
may be appointed by the court may be appointed by the court 3. Opposition (107.5)
if the absentee left no spouse, or if the absentee left no spouse, or Anyone appearing to contest the petition
if the spouse present is a minor or otherwise if the spouse present is a minor or otherwise shall state in writing his grounds therefor, and
incompetent. incompetent. serve a copy thereof on the petitioner and other interested parties
on or before the date designated for the hearing.
Purpose:
- To enable the taking of the necessary precautions for the administration of the estate of 4. Hearing (107.6)
the absentee (Jones v. Hortiguela THAT it is not reqd for remarriage) What to prove
- Main proceeding for Declaration of Absence only in order to obtain provisional compliance with the notice and publication
representation bec necessary satisfactory proof of the allegations in the petition
DIFF from Declaration of Presumptive Death which is only an ancilliary
proceeding, the main proceeding being the settlement of estate
5. Grant (107.6)
Court shall...
- issue an order granting the same and
appointing the representative, trustee or administrator
for the absentee
- take the necessary measures to safeguard the rights and interests of the absentee and
- specify the powers, obligations and remuneration of his representative, trustee, admin,
regulating them by the rules concerning guardians.

6. Effectivity after Publication (107.6)

Declaration of Absence shall not take effect
until 6m after its publication
in a newspaper of general circulation designated by the court and
the Official Gazette.

7. Termination (107.8)
The trusteeship or administration of the property of the absentee
shall cease upon order of the court
in any of the following cases:
(a) When the absentee appears
personally or by means of an agent;
(b) When the death of the absentee is proved and
his testate or intestate heirs appear;
(c) When a third person appears,
showing by a proper document
that he has acquired the absentee's property by purchase or other title.
APPEALS IN SPECIAL PROCEEDINGS (109)

Who can appeal (109.1)

An interested person may appeal in special proceedings
from an order or judgment rendered by a Regional Trial Court

What can be appealed (109.1)

1. Allows or disallows a will;
2. Determines who are the lawful heirs of a deceased person, or the distributive
share of the estate to which such person is entitled;
3. Allows or disallows, in whole or in part, any claim against the estate of a deceased
person, or any claim presented on behalf of the estate in offset to a claim against it;
4. Settles the account of an executor, administrator, trustee or guardian;
5. Constitutes, in proceedings relating to the settlement of the estate of a deceased
person, or the administration of a trustee or guardian,
a final determination in the lower court of the rights of the party appealing, except
that no appeal shall be allowed from the appointment of a special administrator; and
6. Is the final order or judgment rendered in the case, and affects the substantial rights
of the person appealing, unless it be an order granting or denying a motion for a new
trial or for reconsideration.

When applicable : Multiple Appeals (R v. Nishina)

109 contemplates multiple appeals during the pendency of special proceedings
THUS Record on appeal and Notice of appeal is REQD BEC original records of the
case remains with the trial court to enable the rest of the case to proceed in the
event that a separate and distinct issue is resolved by said court and held to be final

SEC. 2. Advance distribution in special proceedings.

Notwithstanding a pending controversy or appeal
in proceedings to settle the estate of a decedent,
the court may permit that such part of the estate
as may not be affected by the controversy or appeal
be distributed among the heirs or legatees,
upon compliance with the conditions set forth in Rule 90
in its discretion and upon such terms as it may deem proper and just (109.2)

Nature of Remedy of Appeal: Mandatory OTHERWISE DISMISS! (R v. Marcos)

- Appeals falling under 109 must be appealed to CA, NOT PR 45 to SC
- SC Circular No. 2-90, Sec. 4: an appeal taken to either the SC or CA by the wrong mode
or inappropriate mode shall be dismissed
 Habeas Corpus (102)
Scope Except as otherwise
expressly provided by law,
the writ of habeas corpus shall extend
to all cases of
illegal confinement or detention
-by which any person
is deprived of his liberty, or
-by which the rightful custody of any person
is withheld from the person entitled thereto
(1)
Who may The writ of habeas corpus may be granted
grant or by the Supreme Court, or
Where to any member thereof,
file > on any day and at any time
> if so granted
it shall be enforceable
anywhere in the Philippines;
> may be made returnable
before SC, CA, Justice
before a RTC, Judge thereof
for hearing and decision
on the merits
by the Court of Appeals or
any member thereof
> in the instances
authorized by law, and
> if so granted
it shall be enforceable
anywhere in the Philippines;
> may be made returnable
before the CA, Justice,
before a RTC, Judge thereof
for hearing and decision
on the merits
Amparo
Remedy available to any person
whose right to life, liberty, and security
is violated or threatened with violation
by an unlawful act or omission
of a public official or employee, or
of a private individual or entity
It covers
extralegal killings and
enforced disappearances or
threats thereof (1)
1) RTC , Judge
of the place where the threat, act, omission
was committed or any of its elements
occurred
>on any day
>at any time
> writ enforceable everywhere
> writ returnable before such RTC, Judge
2) Sandiganbayan, Justice
3) CA, Justice
> Writ is enforceable everywhere
> Writ is returnable before
-such court, justice
-RTC of place of commission, elements
4) SC, Justice
> Writ is enforceable everywhere
> Writ is returnable before
SC, SB, CA, Justices, RTC
Habeas Data Kalikasan
Remedy available to any person Remedy available to any person
whose right to privacy in life, liberty, security whose constitutional right
is violated or threatened to a balanced and healthful ecology
by an unlawful act or omission is violated, threatened with violation
of a public official or employee, or by an unlawful act or omission
of a private individual or entity engaged in of a public official, ee, private indiv, entity,
the gathering, collecting, storing involving environmental damage
of data or info of such magnitude
regarding the person, family home, as to prejudice the life, health or property
correspondence of the aggrieved party (1) of inhabitants in2,more cities, provinces
*Eordinary Remedy BEC last resort
1) RTC, Judge at the option of the petitioner
-where petitioner or respondent resides
-that which has jurisd over the place where
the data or info is gathered, collected, stored
> Returnable before RTC, Judge
2) SC, Justices
3) CA, Justices when the action concerns
4) SB, Justices public data files of govt
offices
> CA, SB: returnable to CA, SB, Justices, RTC
> SC: returnable to SC, CA, SB, Justices, RTC
> Writ is enforceable anywhere in the Ph (4)

by a Regional Trial Court, or

a judge thereof,
> on any day and at any time
> returnable before himself
> enforceable only
within his judicial district (2)
Fees
Who may Application for the writ
apply shall be by petition signed and verified
a) by the party for whose relief it is intended,
b) by some person on his behalf
No docket, other lawful fees (4)
Petition may be filed by
I. Aggrieved Party
II. Any qualified person or entity in the ff
order
1. Any member of the immediate family:
Spouse, children, parents
2. Any ascendant, descendant, collateral
relative within the fourth civil degree of
No docket and legal fees FOR indigent
petitioner (5)
1) Aggrieved Party
Extralegal killings, Enforced Disappearances:
2)Any member of the immediate family:
Spouse, children, parents
3) Any ascendant, descendant, collateral
relative within the fourth civil degree of
consanguinity or affinity, in default of 1-2
1) Any real party in interest, including
the government and
juridical entities authorized by law (4)
2) Citizen suit by any Filipino citizen
in representation of others,
including minors or generations yet unborn,
> Upon the filing of a citizen suit,
the court shall issue an order

How Verified Petition
-shall be by petition signed and verified
a) by the party for whose relief it is intended,
b) by some person on his behalf, and
-shall set forth:
(a) That the person
in whose behalf the application is made
is imprisoned or restrained of his liberty;
(b) The officer or
name of the person
by whom he is so imprisoned, restrained;
if both are unknown or uncertain,
such officer or person may be described
by an assumed appellation, and
the person who is served with the writ
shall be deemed the person intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or
cause of detention of such person,
if it can be procured without impairing
the efficiency of the remedy; or,
if the imprisonment or restraint
is without any legal authority,
such fact shall appear (3)
When not If it appears
to grant -that the person
alleged to be restrained of his liberty
consanguinity or affinity, in default of 1
3. Any concerned citizen, organization,
association or institution, if there is no
known member of the immediate family
or relative of the aggrieved party
> Filing by any higher person suspends the
right of all other inferior authorized parties
Verified Petition
-shall be signed and verified
-shall allege
a. Personal circumstances of the petitioner;
b. Name and personal circumstances
of the respondent responsible
for the threat, act or omission, or,
if the name is unknown or uncertain,
the respondent may be described
by an assumed appellation;
c. The right to life, liberty and security
of the aggrieved party
violated or threatened with violation
by an unlawful act or omission
of the respondent, and
how such threat or violation is committed
with the attendant circumstances
detailed in supporting affidavits;
d. The investigation conducted, if any,
specifying the names, personal
circumstances, and addresses
of the investigating authority or
individuals,
as well as the manner and conduct
of the investigation,
together with any report;
e. The actions and recourses
taken by the petitioner to determine
the fate or whereabouts of the aggrieved
party and
the identity of the person responsible for
the threat, act or omission; and
f. The relief prayed for (5)
Verified Petition
a. Personal circumstances
of the petitioner and respondent;
b. Manner the right to privacy
is violated or threatened and
how it affects the right to life, liberty,
security of aggrieved party
c. Actions and recourses
taken by the petitioner
to secure the data, info
d. Location of the files, registers,
databases, the govt office, and
the person in charge, in possession or in
control of the data or info, if known
e. Reliefs prayed for, which may
include the updating, rectification,
suppression or destruction of the database
or info or files kept by the respondent. In
case of threats, the relief may include a
prayer for an order enjoining the act
complained of
f. Such other relevant reliefs as are
just and equitable (6)
which shall contain
-a brief description of the cause of action
and
-the reliefs prayed for,
-requiring all interested parties to manifest
their interest to intervene in the case within
fifteen days from notice thereof.
Service of Complaint
1. The plaintiff may
-publish the order once in a newspaper of a
general circulation in the Philippines or
-furnish all affected barangays copies
of said order.
-furnish the government or the appropriate
agency, although not a party, a copy of the
complaint. Proof of service upon the
government or the appropriate agency shall
be attached to the complaint (6)
Verified Complaint
-names of the parties, their addresses
-cause of action
- reliefs prayed for
- that it is an environmental case and the law
involved
> If the complaint is not
an environmental complaint,
the presiding judge shall refer it
to the executive judge
All evidence
proving or supporting the cause of action
consisting of
the affidavits of witnesses,
documentary evidence and
if possible, object evidence.
> The affidavits shall be in question and
answer form and shall comply with the rules
of admissibility of evidence.
Certification against forum shopping (3)
Proof of service upon the
government or the appropriate agency (6)
 is in the custody of an officer
under process issued by a court or judge/
by virtue of a judgment or order
of a court of record, and
-that the court or judge had jurisdiction to
issue the process,
render the judgment, or
make the order

Effect of Subsequent Jurisdiction

If the jurisdiction appears
after the writ is allowed,
the person shall not be discharged
by reason of any informality or defect
in the process, judgment, or order.
Nor shall anything in this rule
be held to authorize the discharge
-of a person charged with or convicted of
an offense in the Philippines, or
-of a person suffering imprisonment
under lawful judgment.
Issuance of GR GR GR
Writ A court or judge The court, justice or judge The court, justice, judge shall
authorized to grant the writ shall immediately -immediately order the issuance of the writ
must, grant the same - order the issuance of the writ upon the filing of the petition
when a petition therefor is presented and upon the filing of the petition if on its face, it ought to issue
it appears that the writ ought to issue (5) if on its face it ought to issue -set the date and time for summary hearing
- set the date and time of the petition
The clerk of the court for summary hearing of the petition which shall not be later than 10 working days
immediately thereupon which shall not be later than 7d from the date of issuance
shall issue the writ from date of issuance.
under the seal of the court; The clerk of court shall
The clerk of court shall issue the writ -issue the writ under the seal of the court and
E under the seal of the court (6) -cause it to be served
The judge within 3d from the issuance
may issue the writ under his own hand, and E
may depute any officer or person to serve it in case of urgent necessity, E:
in case of emergency (5) the justice or the judge The justice, judge may
may issue the writ under his or her own hand, -issue the writ under his own hand and
and -deputize any officer or person to serve it
may deputize any officer or person to serve it. in case of urgent necessity (8)
Content of To Whom Addressed
Writ In case of imprisonment or restraint
by an officer,
the writ
-shall be directed to him, and
-shall command him
to have the body of the person
restrained of his liberty
before the court or judge
designated in the writ
at the time and place therein specified.

In case of imprisonment or restraint

by a person not an officer,
the writ
 -shall be directed to an officer, and
-shall command him
a) to take and have the body of the person
restrained of his liberty
before the court, judge designated in the writ
at the time and place therein specified, and
b) to summon the person
by whom he is restrained then and there
to appear before said court or judge
to show the cause of imprisonment, restraint
(6)

Designation of Prisoner (7)

The person to be produced
should be designated in the writ
-by his name, if known,
-otherwise described or identified
if his name is not known

Effect of Defect of Form (9)

No writ of habeas corpus can be disobeyed
for defect of form,
if it sufficiently appears therefrom
-in whose custody or under whose restraint
the party imprisoned or restrained is held and
-the court or judge before whom
he is to be brought.
Service of Where and By Whom The writ shall be served The writ shall be served
Writ The writ may be served upon the respondent upon the respondent
in any province -by a judicial officer or -by a judicial officer or
-by the sheriff or other proper officer, or -by a person deputized -by a person deputized
-by a person deputed by the court or judge. by the court, justice or judge by the court, justice or judge

How How How

Service of the writ shall be made by GR: Personally + Retention of copy of writ on GR: Personally + Retention of copy of writ on
-leaving the original which to make a return of service which to make a return of service
with the person to whom it is directed or E: Substituted service (8) E: Substituted service (9)
on any other person
having or exercising such custody
if the person to whom it is directed
cannot be found, or
has not the prisoner in his custody
-preserving a copy
on which to make return of service (7)
How 1) The officer to whom the writ is directed
complied shall convey
with the person so imprisoned or restrained, and
named in the writ
-before the judge allowing the writ, or,
-before some other judge of the same court,
in case of his absence or disability,
on the day specified in the writ,
UNLESS, from sickness or infirmity
of the person directed to be produced,
such person cannot, without danger,
be brought before the court or judge; and
 2) The officer
shall make due return of the writ,
together with the day and the cause
of the caption and restraint of such person
according to the command thereof (8)
Who 1) When the person to be produced
makes is imprisoned or restrained
return by an officer,
the person who makes the return
shall state in writing to the court or judge
before whom the writ is returnable,
plainly and unequivocably
2) In other cases
the person in whose custody
the prisoner is found
shall state in writing to the court or judge
before whom the writ is returnable,
plainly and unequivocably (10)
Content of (a) Whether he has or has not
Return the party in his custody or power, or
under restraint;
(b) If he has the party
in his custody, power, or under restraint:
the authority and
the true and whole cause thereof;
set forth at large,
with a copy of the writ, order, execution, or
other process, if any, upon which the party is
held;
(c) If the party
is in his custody or power or
is restrained by him, and
is not produced:
particularly the nature and gravity
of the sickness or infirmity of such party
by reason of which he cannot, without danger,
be brought before the court or judge;
(d) If he has had the party
in his custody, power, or under restraint, and
has transferred such custody or restraint
to another:
particularly
to whom,
at what time,
for what cause, and
by what authority such transfer was made
(10)
Within 72 hours after service of the writ,
the respondent shall file
a verified written return
together with supporting affidavits
> 72h cannot be extended
> In case the respondent fails to file a return,
the court, justice or judge shall proceed to
hear the petition ex parte (12)
a. The lawful defenses to show
that the respondent
did not violate or threaten with violation
the right to life, liberty and security
of the aggrieved party,
through any act or omission;
b. The steps or actions
taken by the respondent
to determine the fate or whereabouts
of the aggrieved party and
the person or persons responsible
for the threat, act or omission;
c. All relevant information
in the possession of the respondent
pertaining to the threat, act or omission
against the aggrieved party; and
d. If the respondent
is a public official or employee,
the return shall further state the actions
that have been or will still be taken:
i. to verify the identity of the aggrieved
party;
ii. to recover and preserve evidence related
to the death or disappearance of the
person identified in the petition which
may aid in the prosecution of the person
or persons responsible;
iii. to identify witnesses and obtain
statements from them concerning the
death or disappearance;
iv. to determine the cause, manner, location
and time of death or disappearance as
well as any pattern or practice that may
have brought about the death or
disappearance;
Within 5 working days from service of writ,
the respondent shall file
a verified written return
together with supporting affidavits
> 5d may be reasonably extended by the Court
for justifiable reasons (10)
> In case the respondent fails to file a return,
the court, justice or judge shall proceed to
hear the petition ex parte, granting the
petitioner such relief as the petition may
warrant unless the court in its discretion
requires the petitioner to submit evi (14)
a. The lawful defenses such as national
security, state secrets, privileged
communications, confidentiality of the
source of information of media and others;
b. In case of respondent in charge, in
possession, or in control of the data or info
subject of the petition
i. A disclosure of the data, info about the
petitioner, the nature of such info, data,
and the purpose for its collection
ii. The steps or actions taken by the
respondent to ensure the security and
confidentiality of the data, info
iii. The currency and accuracy of the data,
info held
c. Other allegations relevant to the resolution
of the proceeding. A general denial of the
allegations shall not be allowed (10)

Form of The return or statement (11)
Return -shall be signed by the person who makes it
-shall also be sworn to by him
unless the return is made and signed
by a sworn public officer in his official
capacity
Hearing on When the writ is returned
Return before one judge,
at a time when the court is in session,
he may forthwith
adjourn the case into the court,
there to be heard and determined.
The court or judge before whom
the writ is returned or adjourned
must immediately proceed
to hear and examine
the return, and
such other matters
as are properly submitted for consideration,
unless for good cause shown
the hearing is adjourned,
in which event the court or judge
shall make such order
for the safekeeping
of the person imprisoned or restrained
as the nature of the case requires.
If the person imprisoned or restrained
is not produced
because of his alleged sickness or infirmity,
the court or judge must be satisfied
that it is so grave
that such person cannot be produced
without danger,
before proceeding to hear and dispose
of the matter.
On the hearing the court or judge
shall disregard matters
of form and technicalities
in respect to any warrant or order
of commitment of a court or officer
v. to identify and apprehend the person or
persons involved in the death or
disappearance; and
vi. to bring the suspected offenders before a
competent court.
e. Other matters relevant to the investigation,
its resolution and the prosecution of the
case.
f. A general denial of the allegations in the
petition shall not be allowed (9)
g. All defenses shall be raised in the return,
otherwise, they shall be deemed waived
(10)
a verified written return a verified written return
together with supporting affidavits together with supporting affidavits
Summary Hearing In Chambers (12)
The hearing on the petition a hearing in chambers may be conducted
shall be summary. where the respondent invokes the defense
However, the court, justice or judge -that the release of the data, info in question
may call for a preliminary conference shall compromise
to simplify the issues and national security or state secrets, or
determine the possibility -when the data, info cannot be divulged
of obtaining stipulations and admissions to the public
from the parties. due to its nature or privileged character (12)
Priority Summary Hearing (15)
The hearing shall be from day to day The hearing on the petition
until completed and shall be summary.
given the same priority However, the court, justice or judge
as petitions for habeas corpus. (13) may call for a preliminary conference
to simplify the issues and
determine the possibility
Standard of Proof (17) of obtaining stipulations and admissions
The parties shall establish their claims from the parties.
by substantial evidence.
What to Prove (17)
-The respondent
who is a private individual or entity
must prove that ordinary diligence
as required by applicable laws, rules and
regulations
was observed in the performance of duty.
-The respondent
who is a public official or employee
must prove that extraordinary diligence
as required by applicable laws, rules and
regulations
was observed in the performance of duty.
-The respondent public official or employee
 authorized to commit by law (12) cannot invoke the presumption
that official duty has been regularly
performed
Return as Evidence (13) to evade responsibility or liability.
If it appears
that the prisoner is in custody
under a warrant of commitment
in pursuance of law,
the return shall be considered
prima facie evidence of the cause of restraint;

but if he is restrained of his liberty

by any alleged private authority,
the return shall be considered
only as a plea of the facts therein set forth,
and
the party claiming the custody must prove
such facts
Prohibited a. Motion to dismiss; a. Motion to dismiss (a) Motion to dismiss the complaint;
Motions b. Motion for extension of time to file b. Motion for extension of time to file (b) Motion for a bill of particulars;
return, opposition, affidavit, position return, opposition, affidavit, position paper (c) Motion for extension of time to file
paper and other pleadings; and other pleadings; pleadings, except to
c. Dilatory motion for postponement; c. Dilatory motion for postponement; file answer, the extension not to exceed
d. Motion for a bill of particulars; d. Motion for a bill of particulars; fifteen (15) days;
e. Counterclaim or cross-claim; e. Counterclaim or cross-claim; (d) Motion to declare the defendant in
f. Third-party complaint; f. Third-party complaint; default;
g. Reply; g. Reply; (e) Reply and rejoinder; and
h. Motion to declare respondent in h. Motion to declare respondent in (f) Third party complaint (2)
default; default;
i. Intervention; i. Intervention; ALLOWED (1)
j. Memorandum; j. Memorandum; Complaint
k. Motion for reconsideration of k. Motion for reconsideration of Answer
interlocutory orders or interim relief interlocutory orders or interim relief COCL
orders; and orders; and CRCL
l. Petition for certiorari, mandamus Petition for certiorari, mandamus or MIntervention
or prohibition against any interlocutory prohibition against any interlocutory order. MDiscovery
order. (11) (13) MR
----
MPostponement
MNT
Petition for relief from judgment
> allowed in highly meritorious cases or
to prevent a manifest miscarriage of justice
Remedy Court or judge Judgment (18) Judgment (16) Interim Reliefs
Grant -has examined into The court shall render judgment The court shall render judgment 1) Temporary Environmental Protection
the cause of caption and restraint of prisoner, within 10d from the time within 10d from the time Order (8)
-is satisfied the petition is submitted for decision. the petition is submitted for decision. When: If it appears from the verified
that he is unlawfully imprisoned or If the allegations in the petition are proven If the allegations in the petition are proven complaint
restrained, by substantial evidence, by substantial evidence, the court shall with a prayer for the issuance of an EPO
-shall forthwith order his discharge the court shall grant -enjoin the act complained of, or -that the matter is of extreme urgency and
from confinement, the privilege of the writ and such reliefs -order the deletion, destruction, rectification -the applicant will suffer grave injustice and
as may be proper and appropriate; of the erroneous data, info and irreparable injury,
Effectivity of Discharge: Service otherwise, the privilege shall be denied. -grant other relevant reliefs as may be just and
such discharge shall not be effective > APPEAL: Any party may appeal equitable; Who:
until a copy of the order from the final judgment or order otherwise, the privilege of the writ shall be -executive judge of the multiple sala
has been served on the officer or person to the SC via 45, raising questions denied court before raffle or
detaining the prisoner. of fact or law or both.
If the officer or person detaining the prisoner > Pd of appeal: 5 working days
does not desire to appeal, from the date of notice
the prisoner shall be forthwith released (15) of the adverse judgment.
>The appeal shall be given the
same priority as in habeas corpus
cases.
> ENFORCEMENT:
Upon its finality,
the judgment shall be enforced
within 5 working days
by the sheriff or any lawful officers
as may be designated by the court,
justice, judge (16)
-presiding judge of a single-sala court as the
case may be,
How: issue ex parte a TEPO
effective for only 72 hours
from date of the receipt of the TEPO
by the party or person enjoined.

Interim Reliefs (14)
Upon filing of the petition or
at anytime before final judgment,
the court, justice or judge
may grant any of the following reliefs:
(a) Temporary Protection Order
The court, justice or judge,
upon motion or motu proprio,
may order that
the petitioner or
the aggrieved party and
any member of the immediate family
officers involved if the petitioner
is an organization, association or institution
be protected in a government agency or
by an accredited person or private institution
capable of keeping and securing their safety.
The Supreme Court shall accredit
the persons and private institutions
that shall extend temporary protection.
(b) Inspection Order
The court, justice or judge,
upon verified motion and after due hearing,
may order any person
in possession or control
of a designated land or other property,
to permit entry
for the purpose of inspecting, measuring,
surveying, or photographing
the property, any relevant object, operation
thereon.
> APPEAL: Any party may appeal Duties: Within said period,
from the final judgment or order the court where the case is assigned,
to the SC via 45, raising questions of -shall conduct a summary hearing
fact or law or both. to determine whether the TEPO
> Pd of appeal: 5 working days may be extended until the termination of the
from the date of notice case.
of the adverse judgment. -shall periodically monitor the existence of
>The appeal shall be given the same acts that are the subject matter of the TEPO
priority as in habeas corpus and even if issued by the executive judge, and
amparo cases. (19) -may lift the same at any time
as circumstances may warrant.
Return of Service (17)
-What: Verified return to court
-Who: Officer who executed the final j
-When: within 3d from enforcement
-Content:
-full statement of the proceedings
under the writ and
-complete inventory of the
database, info, docs, articles
inspected, updated, rectified,
deleted
-how the j was enforced and
complied with by respondent
-all objections of the parties
regarding the manner and
regularity of the service of the writ
-Service: copies served on the petitioner and
respondent
Hearing on Officers Return (18)
Set by Court with Due Notice to Parties

The motion shall

-state in detail
the place or places to be inspected.
-shall be supported by affidavits or
testimonies of witnesses having personal
knowledge of the enforced disappearance or
whereabouts of the aggrieved party.

If the motion is opposed

on the ground of national security or
of the privileged nature of the information,
the court, justice or judge
may conduct a hearing in chambers
to determine the merit of the opposition.

The movant must show

that the inspection order is necessary
to establish the right of the aggrieved party
alleged to be threatened or violated.

The inspection order

-shall specify the person or persons
authorized to make the inspection and
the date, time, place and manner
of making the inspection and
- may prescribe other conditions to protect
the constitutional rights of all parties
-shall expire five days after the date of its
issuance, unless extended for justifiable
reasons.

(c) Production Order

The court, justice or judge,
upon verified motion and after due hearing,
may order any person
in possession, custody or control
of any designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, or objects in digitized or
electronic form,
which constitute or contain evidence relevant
to the petition or the return,
to produce and permit their inspection,
copying or photographing by or on behalf of
the movant.

The motion may be opposed

on the ground of national security or
of the privileged nature of the information,
in which case the court, justice or judge
may conduct a hearing in chambers
to determine the merit of the opposition.

The court, justice or judge shall prescribe

other conditions to protect the constitutional
rights of all the parties.

(d) Witness Protection Order

The court, justice or judge,
-upon motion or motu proprio,
may refer the witnesses to the DOJ
for admission to the Witness Protection,
Security and Benefit Program, pursuant to
Republic Act No. 6981.
-may also refer the witnesses to other
government agencies, or to accredited
persons or private institutions capable of
keeping and securing their safety.
Availability
GR: Petitioner
E: Respondent
-Upon verified motion and
after due hearing
for an inspection order or production order
under paragraphs (b) and (c)
- Motion supported by affidavits or
testimonies of witnesses having personal
knowledge of the defenses of the respondent
(15)
Recommit GR: No Recommitment (17)
A person who is set at liberty
upon a writ of habeas corpus
shall not be again imprisoned
for the same offense
unless by the lawful order or process of a
court
having jurisdiction of the cause or offense
Not Released
If it appears
that the prisoner was lawfully committed, and
is plainly and specifically charged
in the warrant of commitment
with an offense punishable by death,
he shall not be released, discharged, or bailed.
Releasable and Bailable
If he is lawfully imprisoned or restrained
on a charge of having committed
an offense not so punishable,
he may be
-recommitted to imprisonment or
-admitted to bail
in the discretion of the court or judge.
Released and Recommitted
If he be admitted to bail,
he shall forthwith file a bond
in such sum as the court or judge
deems reasonable, considering
the circumstances of the prisoner and
the nature of the offense charged,
conditioned for his appearance
before the court
where the offense is properly cognizable
to abide its order or judgment; and
the court or judge shall certify
the proceedings,
together with the bond,
forthwith to the proper court.
If such bond is not so filed,
the prisoner shall be recommitted to
confinement (14)
Penalties 1) Forfeiture of P1k to the party aggrieved
to be recovered in a proper action, and
Contempt by the court or judge
a) A clerk of a court who refuses to issue the
writ
after allowance thereof and demand therefor,
b) A person to whom a writ is directed, who
-neglects or refuses
to obey or make return of the same
Archiving and Revival of Cases (20)
When Archived
The court shall not dismiss the petition,
but shall archive it,
if upon its determination
it cannot proceed for a valid cause
such as the failure of petitioner or witnesses
to appear due to threats on their lives.
When Revived
A periodic review of the archived cases
shall be made by the amparo court that shall,
motu proprio or upon motion by any party,
order their revival
when ready for further proceedings.
When Dismissed for Failure to Prosecute
The petition shall be dismissed with prejudice
upon failure to prosecute the case
after the lapse of two years
from notice to the petitioner
of the order archiving the case.
The clerks of court shall submit
to the Office of the Court Administrator
a consolidated list of archived cases
under this Rule not later than the first week of
January of every year.
1) Contempt, Other Disciplinary Actions (7) 1) Contempt, Other Disciplinary Actions (8)
punished by the court, justice or judge punished by the court, justice or judge
for contempt for contempt
without prejudice to other disciplinary without prejudice to other disciplinary actions
actions a. A clerk of court who refuses to issue the
a. A clerk of court who refuses to issue the writ
writ after its allowance
after its allowance b. a deputized person
b. a deputized person who refuses to serve the same
who refuses to serve the same
2)Contempt with Fine/Imprisonment
according to the command thereof, or
-makes false return thereof
-refuses upon demand made by or on behalf
of the prisoner
to deliver to the person demanding,
within six hours after the demand,
a true copy of warrant, order of commitment,
c) A person who knowingly,
contrary to the provisions of this rule,
-recommits or imprisons, or
causes to be committed or imprisoned,
for the same offense, or pretended offense,
any person so set at liberty, or
-knowingly aids or assists therein (17)
2)Contempt with Fine/Imprisonment
The court, justice or judge
may order
-the respondent
who refuses to make a return, or
who makes a false return, or
-any person who otherwise
disobeys or resists
a lawful process or order of the court
The court, justice or judge
may order
-the respondent
who refuses to make a return, or
who makes a false return, or
-any person who otherwise
disobeys or resists
a lawful process or order of the court (11)

2) Forfeiture of P1k to party aggrieved

a person who, after such commitment,
makes, signs, or countersigns
any order for such removal
contrary to this section,
shall forfeit to the party aggrieved
the sum of one thousand pesos, to be
recovered in a proper action.
>> BEC UNLAWFUL TO:
A person
committed to prison, or
in custody of an officer,
for any criminal matter,
shall not be removed therefrom
into the custody of another officer
unless
-by legal process, or
-the prisoner be delivered to an inferior
officer
to carry to jail or
-by order of the proper court or judge,
be removed from one place to another
within the Philippines for trial, or
-in case of fire, epidemic, insurrection, or
other necessity or public calamity
Costs The proceedings
upon a writ of habeas corpus
shall be recorded by the clerk of the court,
and
upon the final disposition of such proceedings
the court or judge shall make such order
as to costs as the case requires.

The fees of officers and witnesses

shall be included in the costs taxed,
but no officer or person
shall have the right to demand
payment in advance of any fees
to which he is entitled
by virtue of the proceedings.

When a person confined

under color of proceedings in a criminal case
is discharged,
the costs shall be taxed
against the Republic of the Philippines, and
paid out of its Treasury;

when a person in custody

by virtue or under color of proceedings
in a civil case
is discharged,
the costs shall be taxed
against him, or
against the person who signed the application
for the writ, or
both, as the court shall direct. (19)
Concurrent > GR: Does not preclude the filing of separate
Actions criminal, civil or administrative actions (21)
> E: Cannot apply independently upon filing of
Criminal Action (22): When a criminal action
has been commenced, no separate petition for
the writ shall be filed. The reliefs under the
writ shall be available by motion in the
criminal case. The procedure under this Rule
shall govern the disposition of the reliefs
available under the writ of amparo.
> Remedy: Consolidate (23)
When a criminal action is filed
subsequent to the filing
of a petition for the writ,
the latter shall be consolidated
with the criminal action.
> GR: Does not preclude the filing of separate
criminal, civil or administrative actions (20)
> E: Cannot apply independently upon filing of
Criminal Action (22): When a criminal action
has been commenced, no separate petition for
the writ shall be filed. The reliefs under the
writ shall be available by motion in the
criminal case. The procedure under this Rule
shall govern the disposition of the reliefs
available under the writ of amparo.
> Remedy: Consolidate (21)
When a criminal action is filed
subsequent to the filing
of a petition for the writ,
the latter shall be consolidated
with the criminal action.

When a criminal action and a separate civil

action are filed
subsequent to a petition for a writ of amparo,
the latter shall be consolidated with the
criminal action.

After consolidation, the procedure under this

Rule shall continue to apply to the disposition
of the reliefs in the petition.