Special Proceedings

Remedial Law: Special ProceedingsHerrera Abridged

SPECIAL PROCEEDINGS

GENERAL PROVISION

RULE 72

SUBJECT MATTERAND APPLICABILITY OF GENERAL RULES

Sec. 1. Subject matter of special proceedings. - Rules of special proceedings are provided for in the following cases: (a) Settlement of estate of deceased persons; (b) Escheat; (c) Guardianship and custody of children; (d) Trustees; (e) Adoption; (f) Rescission and revocation of adoption; (g) Hospitalization of insane persons; (h) Habeas corpus; (i) Change of name; (j) Voluntary dissolution of corporations; (k) Judicial approval of voluntary recognition of minor natural children; (l) Constitution of family home; (m) Declaration of absence and death; (n) Cancellation or correction of entries in the civil registry.

Sec. 2. Applicability of rules of civil actions. - In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

Action: a formal demand of one’s right in a court of justice in the manner prescribed by the court or by the law.

Special proceeding; an application or proceeding to establish the status or right of a party or a particular fact.

Enumeration in Section 1 is not exclusive.

Petition for liquidation of an insolvent corporation is a special proceeding because it seeks a declaration by the trial court of the corporation’s insolvency so that its creditors may be able to file their claims in the settlement of the corporation’s debts and obligations. Multiple appeals are also allowed here.

Cases covered by the Interim Rules of Intra-corporate controversies are ordinary civil actions. Corporate recovery, petition for rehabilitation is also a special proceeding because it sought to

establish the inability of the corporate debtor to pay its debts when they fall due. Action for reconveyance is an ordinary civil action where matters relating to settlement of estate

cannot be adjudicated. Arbitration under a contract or submission is also a special proceedings. Special proceedings under ADR law: recognition and enforcement of an arbitration agreement or for vacation, setting aside, correction or modification of an arbitral award, application with a court for arbitration assistance and supervision.

SETTLEMENT OF ESTATE OF DECEASED PERSONS

RULE 73

VENUE AND PROCESSES Sec. 1. Where estate of deceased person settled. - If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to

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the exclusion of all other courts. 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.

Special proceeding for the settlement of estate of deceased: Testate-with will Intestate- no will

Probate of will is mandatory and so it takes precedence over intestate. If in the course of intestate, a will has been found out, probate should replace the intestate even if

an administrator has already been appointed; intestate case should be consolidated with the testate proceeding and the judge assigned to the testate should continue hearing the two cases.

MTC shall exercise exclusive jurisdiction over probate proceedings, testate or intestate where the value of the estate does not exceed P300,000.

Rule prescribing the court where the decedent’s estate shall be settled at the place of residence of the deceased is not an element of jurisdiction over the subject matter but merely of venue.

Residence- actual or physical habitation of a person, not legal domicile, but must be more than temporary.

Coverage of probate jurisdiction Settlement of estate Probate of wills of deceased persons Appointment and removal of administrators and executors Selling and mortgaging or encumbering realty

Jurisdiction of probate court is limited, special and exclusive and does not extend to the determination of questions of ownership that arise during the proceedings.

The court may pass upon the title for the purpose of determining whether the same should or should not be included in the inventory but it is not conclusive and is still subject to final decision in a separate action.

The approval of the probate court of the conditional sale is not a conclusive determination of the intrinsic or extrinsic validity of the conditional sale but a mere recognition of the right of an heir to dispose of her rights and interest over her inheritance even before partition.

The purchaser of property under administration is forced intervenor in the intestate proceeding and should answer the amended petition for the annulment of the sale.

Order of the probate court which has the effect of depriving a lessee of part of the estate wihout the lease contract having been terminated or annulled in a separate action instituted for that purpose is null and void.

The rule that the court first taking cognizance of the settlement of the estate of the deceased, shall exercise jurisdiction to the exclusion of all other court applies to both testate and intestate proceedings.

Claims for title to, or right of possession of, personal or real property, made by the heirs themselves, by title adverse to that of the deceased, or made by third persons, cannot be entertained by the probate court.

Determination of the questions of title to the subject properties in the probate court is merely provisional, and petitioners are not barred from instituting the appropriate action.

Exception: Probate court has jurisdiction to resolve the issue of ownership when the parties interested are all heirs of the ceased and they submitted the question of title to the property, without prejudice to third persons.

An order to include properties in the inventory is merely provisional and interlocutory.

A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administration proceedings and cannot properly be made an independent action.

Application of attorney’s fees may be made before and passed upon by the probate court in the same proceedings where attorney’s services were rendered.



Sec. 2. Where estate settled upon dissolution of marriage. - 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 spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.

In the settlement proceedings of the estate of the deceased spouse, the entire conjugal partnership property of the marriage and not just the one-half portion belonging to the deceased is under administration.

Sec. 3. Process. - In the exercise of probate jurisdiction, Court of First Instance may issue warrants and processes 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 not perform an order of 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.

Sec. 4. Presumption of death. - 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. 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.

No independent action for declaration of presumption of death. SC rule that where due to circumstances a person was already considered as dead without waiting

for the period to expire and be presumed dead.

RULE 74

SUMMARY SETTLEMENT OF ESTATES Sec. 1. Extrajudicial settlement by agreement between heirs. - If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.

When all the heirs are of lawful age and there are no debts due from the estate, they may agree in writing to partition the property without instituting the judicial administration or applying for the appointment of an administrator.

Different modes of settlement of the estate of the deceased:

Extrajudicial settlement of estate;

Partition

Summary settlement of estates of small value



Probate of will

Petition for letters administration in cases of intestacy.

Partition although oral is valid and binding.

The requirement that a partition be put in a public document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy claim; serves as a constructive notice.

The intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors or the rights of the creditors are not affected.

Partition among heirs or renunciation of an inheritance by some of them is not exactly a conveyance of real property for the reason that it does not involve transfer of property from one to the other, but rather a confirmation or ratification of title or right of property by the heir renouncing in favor or another heir accepting and receiving the inheritance.

Heirs cannot divest court of its already acquired jurisdiction by the fact of dividing the distributing extrajudicially the estate of the deceased among themselves.

If the extrajudicial partition made by the heirs is submitted to the court and approved after verification that it does not prejudice the rights of third parties, the testate proceedings pending would have been legally terminated.

An extrajudicial partition of the estate of a deceased by the heirs become a judicial partition after the approval by the court which had previously acquired jurisdiction of the estate, but as the testate proceedings is terminated in such case without the necessary publication of notice to creditors and other persons interested in the estate required in a regular judicial administration, the effects of such judicial partition would be the same as if it had been effected extrajudicially without the intervention of the court and is still subject to claims against distributes.

Sec. 2. Summary settlement of estates of small value. - Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Court of First Instance having jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not less than (1) month nor more than three (3) months from the date of the last publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province, and after such other notice to interested persons as the court may direct, the court may proceed summarily, without the appointment of an executor or administrator, and without delay, to grant, if proper, allowance of the will, if any there be, to determine who are the persons legally entitled to participate in the estate, and to apportion and divide it among them after the payment of such debts of the estate as the court shall then find to be due; and such persons, in their own right, if they are of lawful age and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectively. The court shall make such order as may be just respecting the costs of the proceedings, and all orders and judgments made or rendered in the course thereof shall be recorded in the office of the clerk, and the order of partition or award, if it involves real estate, shall be recorded in the proper register's office.

MTC shall have the probate jurisdiction where the value of the estate does not exceed P300K or P400K in MM.

Sec. 3. Bond to be filed by distributees. - The court, before allowing a partition in accordance with the provisions of the preceding section, may require the distributees, if property other than real is to be distributed, to file a bond in an amount to be fixed by court, conditioned for the payment of any just claim which may be filed under the next succeeding section.

Sec. 4. Liability of distributees and estate. - If it shall appear at any time within two (2) years after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule, that an heir or other person has been unduly deprived of his lawful participation in the estate, such heir or such other person may compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisfying such lawful participation. And if within the same time of two (2) years, it shall appear that there are debts outstanding against the estate which have not been paid, or that an heir or other person has been unduly



deprived of his lawful participation payable in money, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the payment thereof, and may issue execution, if circumstances require, against the bond provided in the preceding section or against the real estate belonging to the deceased, or both. Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (2) years after such distribution, notwithstanding any transfers of real estate that may have been made.

The provisions barring distributes or heirs from objecting to an extra-judicial partition after the expiration of two years from such extrajudicial partition is applicable only to:

Persons who have participated or taken part or had notice of the extrajudicial partition, and

When all the persons or heirs of the decedent have taken part in the extrajudicial settlement or are represented by themselves through guardians.

Section 4 is only a bar against the parties who had taken part in the extrajudicial proceedings, but not against third persons not parties thereto.

An action for reconveyance of real property on the ground of fraud must be filed within 4 years from the discovery of fraud. Such discovery is deemed to have taken place from the issuance of the certificates of title.

An action for reconveyance based on a implied or constructive trust prescribes in ten years from the date of the registration of the deed or the issuance of the title.

An action for rescission is also the proper action in case of an alleged preterition of a compulsory heir by reason of alleged bad faith or fraud of the other persons interested.

When the plaintiff is in possession of the land to be reconveyed, prescription cannot be invoked in an action for reconveyance.

The court permitted the filing of an action for reconveyance despite the lapse of ten years and declared that said action, when based on fraud, is imprescriptible as long as the land has not passed to an innocent purchaser for value.

This is for the reason that registration proceedings should not be used as a shield for fraud enriching a person at the expense of the other.

Sec. 5. Period for claim of minor or incapacitated person. - If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1) year after such disability is removed.

RULE 75

PRODUCTION OF WILL;ALLOWANCE OF WILL NECESSARY

Sec. 1. Allowances necessary; Conclusive as to execution. - No will shall pass either real or personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

There can be no valid partition among the heirs until after the will has been probated.

GR: Courts’ authority in probate proceedings are limited only to passing upon the extrinsic validity of the will sought to be probated, the due execution thereof, the testator’s testamentary capacity and the compliance with the requisites or solemnities prescribed by law.

The question of intrinsic validity of a will comes only after the court has declared that the will has been duly authenticated.

How is extrinsic validity determined:



Substantial compliance is sufficient; Formal imperfections may be brushed aside when they do no affect its purpose.

Exception: Probate court may pass upon intrinsic validity under the principle of practical considerations.

Where practical considerations and circumstances demand that intrinsic validity of testamentary provisions be passed upon before the extrinsic validity of the will be resolved, the probate court should meet the issue.

Exception cannot be applied where meat of the controversy is not intrinsic validity.

Where the probate court acted in excess of its jurisdiction, the same may be corrected by certiorari. And even assuming the existence of the remedy of appeal, we hearken to the rule that in the broader interest of justice, a petition for certiorari may be entertained where appeal would not afford speedy and adequate relief.

The probate court may only disregard passing on the extrinsic invalidity of the will where the intrinsic invalidity is apparent on the face of the will.

Decree of probate is conclusive with respect to the due execution of the will and it cannot be impugned on any grounds authorized by law, except that of fraud in any separate or independent action or proceedings.

Sec. 2. Custodian of will to deliver. - The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will.

Failure to attach original of will to petition is not critical where will itself was adduced in evidence, not necessary to attach original will to petition for probate.

Sec. 3. Executor to present will and accept or refuse trust. - A person named as executor in a will shall, within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it.

Sec. 4. Custodian and executor subject to fine for neglect. - A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos.

Sec. 5. Person retaining will may be committed. - A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will.

RULE 76

ALLOWANCE OR DISALLOWANCE OF WILL Sec. 1. Who may petition for the allowance of will. - Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

The testator himself may, during his lifetime, petition the court for the allowance of his will.

Interested party: one who would be benefitted by the estate such as an heir or one who has claim against the estate like a creditor.

One who is only indirectly interested in a will may not interfere in its probate.

How jurisdiction is acquired:

a. Attaching a mere copy of will sufficient: annexing of the original will to the petition is not a jurisdictional requirement. This is without prejudice to producing the original thereof at the hearing or when the court so requires.



b. Delivery of will sufficient even if no petition is filed: the court could motu proprio take steps to fix the time and place for proving the will and issue corresponding notices.

c. Upon filing of the original petition under Secs 3 and 4.

Sec. 2. Contents of petition. - A petition for the allowance of a will must show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;

(c) The probable value and character of the property of the estate;

(d) The name of the person for whom letters are prayed;

(e) If the will has not been delivered to the court, the name of the person having custody of it.

But 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.

Jurisdictional facts in probate: death of the decedent; his residence at the time of his death in the province of where the probate court is sitting; if he is an inhabitant of a foreign country, in the province where he left his estate.

Sec. 3. Court to appoint time for proving will. - Notice thereof to be published. When a will is delivered to, or a petition for the allowance of a will is filed in, the court having jurisdiction, such court shall fix a time and place for proving the will when all concerned may appear to contest the allowance thereof , and shall cause notice of such time and place to be published three (3) weeks successively, previous to the time appointed, in a newspaper of general circulation in the province.

But no newspaper publication shall be made where the petition for probate has been filed by the testator himself.

The notice by publication as a prerequisite to the allowance of a will is a constructive notice to the whole world, and when probate is granted the judgment is binding upon everybody, even against the State.

The probate of a will having jurisdiction thereof is conclusive as to its due execution and validity.

Probate court must cause notice through publication for the petition after receiving the same otherwise the proceeding for settlement of the estate is void and should be annulled.

Sec. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. - The court shall also cause copies of the notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees, and devisees of the testator resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not be petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing.

If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs.

The requirement of the law for the allowance of will was not satisfied by mere publication of notice of hearing because notice of hearing to the designated hers, legatees and devisees is required. (by mail or personally)

Sec. 5. Proof at hearing. - What sufficient in absence of contest. At the hearing compliance with the provisions of the last two preceding sections must be shown before the introduction of testimony in



support of the will. All such testimony shall be taken under oath and reduced to writing. If no person appears to contest the allowance of the will, the court may grant allowance thereof on the testimony of one of the subscribing witnesses only, if such witness testify that the will was executed as is required by law.

In the case 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. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to.

Sec. 6. Proof of lost or destroyed will. - Certificate thereupon. No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses. When a lost will is proved, 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.

3 Facts should be proved to allow lost will:

That the will has been duly executed by the testator

That the will was in existence when the testator died, or if it was note, that it has been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge;

That the provisions of the will are clearly established by at least 2 credible witnesses.

Sec. 7. Proof when witnesses do not reside in province. - 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, as would be pertinent and competent if the original will were present.

Sec. 8. Proof when witnesses dead or insane or do not reside in the Philippines. - 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 as evidence of the execution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them.

The failure of the witness to identify his signature does not bar probate. The test whether a witness to a will is deemed to have signed in the presence of each other is not

whether a witness did see the signing of the will but whether he was in a position to see if he chose to do so.

The statement of a competent attorney charged with responsibility of seeing to the proper execution of the instrument is entitled to greater weight than the testimony of a person casually called to participate in the act.

Sec. 9. Grounds for disallowing will. - The will shall be disallowed in any of the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) 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;



(e) If the signature of the testator was procured by fraud or trick,/ (by mistake) and he did not intend that the instrument should be his will at the time of fixing his signature thereto. ( constitutes 2 grounds in CC)

It is sufficient if the holographic will is really dated, although the date is not in its usual place. The only requirement are the date be in the will itself and executed in the hand of the testator.

Substantial Compliance Rule: If the will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud is obviated, said will should not be admitted to probate.

The ground for disallowance is exclusive.

Only issues to be resolved in a petition to admit a holographic will to probate are:

Whether the instrument submitted is the decedent’s last will and testament;

Whether the said will was executed in accordance with the formalities prescribed by law;

Whether the decedent had the necessary testamentary capacity at the time the will was executed;

Whether the execution of the will and its signing were the voluntary acts of the decedent.

Formalities of non-holographic wills include the subscription, attestation and acknowledgement requirement.

In case of holographic wills, what ensures authenticity is the requirement that they be totally autographic or handwritten by the testator himself.

Failure to sign and date some of the dispositions will not effectuate the same, but will not render the whole testament void. Lack of authentication will only result in disallowance of such changes.

Substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of will are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and flexible as to destroy the testamentary privilege.

Separate wills containing similar provisions may be probated jointly. What the law prohibits is the making of joint will either for the testators reciprocal benefit or for the benefit of a third person.

Sec. 10. Contestant to file grounds of contest. - Anyone appearing to contest the will must state in writing his grounds for opposing its allowance, and serve a copy thereof on the petitioner and other parties interested in the estate.

Sec. 11. Subscribing witnesses produced or accounted for where will contested. - 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, and the death, absence, or insanity of any of them must be satisfactory shown to the court. 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. 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.

If a holographic will is contested, the same shall be allowed if at least three (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.

When the authenticity of the will is not being questioned, there is no necessity of presenting the three witnesses required.

Sec. 12. Proof where testator petitions for allowance of holographic will. - Where the testator himself petitions for the probate of his holographic will and no contest in filed, the fact that he affirms that Notsoheavenly notes ***


the holographic will and the signature are in his own handwriting, shall be sufficient evidence of the genuineness and due execution thereof. 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.

Sec. 13. Certificate of allowance attached to proved will. - To be 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.

RULE 77

ALLOWANCE OF WILL PROVED OUTSIDE OF PHILIPPINES AND ADMINISTRATION OF ESTATE THEREUNDER

Sec. 1. Will proved outside Philippines may be allowed here. - Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines.

Proof that both will conform with the formalities prescribed by the foreign country or Philippine laws is imperative.

Evidence necessary for the reprobate of wills probated outside the Philippines: The due execution of the will in accordance with the foreign laws; The testator has domicile in the foreign country and not in the Philippines; The will has been admitted to probate in such country; The laws of a foreign country on procedure and allowance of wills

Sec. 2. Notice of hearing for allowance. - When a copy of such will and of the order or decree of the allowance thereof, both duly authenticated, are filed with a petition for allowance in the Philippines , by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.

The rule that the court having jurisdiction over the reprobate of a will shall cause notice thereof to be given as in case of an original will presented for allowance means that with regard to notices, the will probated abroad should be treated as if it were an original will or a will that is presented for probate for the first time.

Sec. 3. When will allowed, and effect thereof. - 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.

Sec. 4. Estate, how administered. - 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.

GR: Administration extends only to the assets of the decedent found within the state or county where it was granted so that an administrator appointed in one state or country has no power over property in another state or country.

The ancillary administration is proper whenever a person dies leaving in a country other than that of his domicile, property to be administered in the nature of assets of the decedent, liable for his individual debts or to be distributed among his heirs.



RULE 78

LETTERS TESTAMENTARY AND OF ADMINISTRATION,WHEN AND TO WHOM ISSUED

Sec. 1. Who are incompetent to serve as executors or administrators. - No person is competent to serve as executor or administrator who: (a) Is a minor;

(b) Is not a resident of the Philippines; and

(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction of an offense involving moral turpitude.

Drunkenness: not just mere state of intoxication; that excessive, inveterate and continued use of intoxicants, to such an extent as to render the subject of the habit as unsafe against to entrust with the care of property or the transaction of business

Improvidence: want of care and foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe and liable to be lost or diminished in value.

Symptoms: carelessness, indifference, prodigality, wastefulness or negligence in reference to the care management and preservation of property.

Gambling habits might establish improvidence.

Want of understanding is a disqualification where it amounts to lack of intelligence.

Moral Turpitude: an act of baseness, vileness or depravity in the private and social duties which a man owes his fellow men, to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty or good morals.

Courts are restricted to the cause named and have no authority to refuse to issue letters to a person because his interests are hostile to those of the estate and the legatees under the will.

Consider also antagonistic interest in the fitness of administrator.

It is important that an administrator should be able to devote his time and mind to the burden of his trust.

An administrator does not have to be an heir. He can be a stranger to the deceased.

Sec. 2. Executor of executor not to administer estate. - The executor of an executor shall not, as such, administer the estate of the first testator.

Sec. 3. Married women may serve. - A 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.

Sec. 4. Letters testamentary issued when will allowed. - When a will has been proved and allowed, the court shall issue letters testamentary thereon to the person named as executor therein, if he is competent, accepts the trust, and gives bond as required by these rules.

Sec. 5. Where some coexecutors disqualified others may act. - When all of the executors named in a will can not 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.

Sec. 6. When and to whom letters of administration granted. - If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:



(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

Order of preference: The underlying assumption behind this rule is that those who will reap the benefit of a wise, speedy and economical administration of the estate, or on the other hand, suffer the consequences of waste, improvidence, or mismanagement, have the highest interest and most influential motive to administer the estate correctly.

One who has greater interest in the estate is preferred to another who has less.

Mere failure to apply for letters of administration does not remove preference; 30-day period may be waived.

A creditor must present its claim within a reasonable time after the death of the decedent in the estate proceedings and if none were had, to file for petition for letters of administration.

Co-administration is allowed. Appointment of more than one administrator is legally permissible and sanctioned in practice.

The next of kin has been defined as those persons who are entitled under the statute of distribution to the decedent’s property.

The purpose of having co-administrators is to have the benefit of their judgment and perhaps at all times to have different interests represented, especially considering that in this proceeding they will respectively represent the legitimate and illegitimate groups of heirs to the estate.

It is proper to command the court below to appoint a regular administrator, but it is not proper to tell whom to appoint.

Where the order of the court appointing a new administrator in substitution of the original administrator is pending appeal, and in the absence of any order for the immediate execution of the order of substitution, the old administrator has the right to continue as such until the appeal is finally disposed of.

RULE 79

OPPOSING ISSUANCE OF LETTERS TESTAMENTARY.PETITION AND CONTEST FOR LETTERS OF ADMINISTRATION

Sec. 1. Opposition to issuance of letters testamentary; Simultaneous petition for administration. - Any person interested in a will may state in writing the grounds why letters testamentary should not issue to the persons named therein executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for letters of administration with the will annexed.

Sec. 2. Contents of petition for letters of administration. - A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner:


(b) The names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent

(c) The probable value and character of the property of the estate;



(d) The name of the person for whom letters of administration are prayed.

But no defect on the petition shall render void the issuance of letters of administration.

Jurisdictional facts: death of the testator; his residence at the time of his death in the province where the probate court is sitting; if he is an inhabitant of a foreign country, his having left his estate in such province.

Requirement of earnest compromise to be shown first before filing suit involving members of the same family is not applicable to special proceedings, the same only applies to civil actions which are adversarial.

Lack of interest in the estate is equated to lack of legal capacity to institute the proceedings. Interested party: one who would be benefited by the estate or one who has claim against the

estate, this interest must be material and direct and not merely indirect or contingent.

For one to intervene in an estate proceedings, it is a requisite that he must be interested in the estate, either as one who would be benefited as an heir or one who has a claim against the estate like a creditor or in the will or in the property to be affected by it either as executor or as claimant of the estate.

Lack of interest rule may be barred by estoppel, or where it is not asserted in the motion to dismiss, it is barred by the rule on omnibus motion, hence it is deemed waived.

Sec. 3. Court to set time for hearing. Notice thereof. - 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 3 and 4 of Rule 76.

The probate court must cause notice through publication of the petition after it receives the same.

The purpose of the notice is to bring all the interested persons within the court’s jurisdiction so that the judgment therein becomes binding on all the world.

Where no notice as required has been given to persons believed to have an interest in the estate of the deceased person, the proceeding for the settlement of the estate is void and should be annulled.

The requirement as to notice is essential to the validity of the proceeding in order that not person may be deprived of his right to property without due process of law.

Sec. 4. Opposition to petition for administration. - Any interested person may, by filing a written opposition, contest the petition on the ground of the incompetency of the person for whom letters are prayed therein, or on the ground of the contestant's own right to the administration, and may pray that letters issue to himself, or to any competent person or persons named in the opposition.

Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition, it must first be shown that notice has been given as hereinabove required, and thereafter the court shall hear the proofs of the parties in support of their respective allegations, and if satisfied that the decedent left no will, or that there is no competent and willing executor, it shall order the issuance of letters of administration to the party best entitled thereto.

Sec. 6. When letters of administration granted to any applicant. - Letters of administration may be granted to any qualified applicant, though it appears that there are other competent persons having better right to the administration, if such persons fail to appear when notified and claim the issuance of letters to themselves.

RULE 80

SPECIAL ADMINISTRATOR Sec. 1. Appointment of special administrator.- 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, the court may appoint a special administrator to take possession and



charge of the estate of the deceased until the questions causing the delay are decided and executors or administrators appointed.

Special administrator- representative of the decedent appointed by the probate court to care for and preserve his estate until an executor or general administrator is appointed.

SC ruled that notice through publication of the petition is a jurisdictional requirement even in the appointment of judicial administrator.

Appointment of special administrator and as to the selection thereof is purely discretionary of the court.

The order of appointment is discretionary and not appealable. Issuance of such appointment is temporary and the appointing court does not determine who are

entitled to share in the estate of the decedent but who is entitled to administration. The issue of heirship is one to be determined in the decree of distribution and the findings of the

court on the relationship of the parties in the administration, as to be the basis of the distribution. Special administrators are reminded that while they may have respective interests to protect, they

are officers of the court subject to the supervision and control of the probate court and are expected to work in the best interest of the entire estate.

The basis for appointing a special administrator under the rules is broad enough to include any cause or reason for the delay in granting letters testamentary or of administration:

Where a contest to the will is being carried on in the same or in another court; Where there is an appeal pending as to the proceeding on the removal of the

executor/administrator Where parties cannot agree among themselves; Where general administration cannot be immediately granted;

No temporary administration can be granted where there is an executor capable of acting. The accountability which attaches to the office of the special administrator for it neutral possession

is absent from the personal possession of the litigants.

Sec. 2. Powers and duties of special administrator. - Such special administrator shall take possession and charge of goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court.

Special administrator has the duty to submit an inventory of the estate within a reasonable period.

Sec. 3. When powers of special administrator cease; Transfer of effects; Pending suits. - When letters testamentary or of administration are granted on the estate of the deceased, the powers of the special administrator shall cease, and he shall forthwith deliver to the executor or administrator the goods, chattels, money, and estate of the deceased in his hands. The executor or administrator may prosecute to final judgment suits commenced by such special administrator.

An order appointing a special administrator is interlocutory, a mere incident to the judicial proceedings where no appeal lies from such appointment.

The court making the appointment retains control over it, may modify, rescind, or revoke the same on sufficient grounds at any time before final judgment.

RULE 81

BONDS OF EXECUTORS AND ADMINISTRATORS Sec. 1. Bond to be given before issuance of letters; Amount; Conditions. - Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of administration 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 three (3) 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 of the testator, 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 from the proceeds to pay and discharge all debts, legacies, and charges on the same, or such dividends thereon as shall be decreed by the court;

(c) To render a true and just account of his administration to the court within one (1) year, and at any other time when required by the court;

(d) To perform all orders of the court by him to be performed.

Terms and effectivity of bond does not depend on payment of premium and does not expire until the administration is closed.

As long as the probate court retains jurisdiction of the estate, the bond contemplates a continuing liability.

The surety became liable under the bond for the faithful administration of the estate by the executor/administrator; liabity of sureties is co-extensive with that of the administrator.

Sec. 2. Bond of executor where directed in will. When further bond required. - If the testator in his will directs that the executor serve without bond, or with only his individual bond, he may be allowed by the court to give bond in such sum and with such surety as the court approves conditioned only to pay the debts of the testator; but the court may require of the executor a further bond in case a change in his circumstances, or for other sufficient cause, with the conditions named in the last preceding section.

Sec. 3. Bonds of joint executors and administrators. - When two or more persons are appointed executors or administrators the court may take a separate bond from each, or a joint bond from all.

Sec. 4. Bond of special administrator. - A special administrator before entering upon the duties of his trust shall give a bond, in such sum as the court directs, conditioned that he will make and return a true inventory of the goods , chattels, rights, credits, and estate of the deceased which come to his possession or knowledge, and that he will truly account for such as are received by him when required by the court, and will deliver the same to the person appointed executor or administrator, or to such other person as may be authorized to receive them.

***Even if the administrator has no valid title to the lot, the sureties are not chargeable for it on the bond. The administrator’s liability is personal and exclusive of the sureties.

RULE 82

REVOCATION OF ADMINISTRATION, DEATH, RESIGNATION, AND REMOVAL OF EXECUTORS AND ADMINISTRATORS

Sec. 1. Administration revoked if will discovered; Proceedings thereupon. - If 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, 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. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided.

If in the course of the intestate proceedings, it is found out that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage, an administrator had already been appointed, the latter being required to render a final account and turn over the estate in his possession to the executor subsequently appointed.

The mere discovery however of a document purporting to be the last will and testament of the decedent after appointment of an administrator and assumption that the decedent died intestate does not ipso facto nullify the letters of administration already issued or even authorize their revocation until the will has been proved and allowed.

Sec. 2. Court may remove or accept resignation of executor or administrator; Proceedings upon death, resignation, or removal. - 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 rules, or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove him, or, in its discretion, may permit him to resign. 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.

Purpose of administration: liquidation of the estate and distribution of the residue among the heirs and legatees.

Liquidation: determination of all the assets of the estate and payment of all debts and expenses.

In the discharge of his functions, the administrator should act with utmost circumspection in order to preserve the estate and guard against its dissipation so as not to prejudice its creditors and the heirs of the decedent who are entitled to the net residue thereof.

Grounds for removal:

Neglect to render an account and settle the estate according to law;

Neglect to perform an order or judgment of the court;

Neglect to perform a duty expressly provided by these rules

Absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust.

Temporary absence in the state does not disqualify one to be an administrator of the estate.

The determination of a person’s suitability for the office of the 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 the said court is clearly in error.

Grounds enumerated are not exclusive.

Once the court finds the appointee to the position not entitled to such confidence relative to the position, it is justified in withdrawing the appointment and giving no valid efficacy thereto.

A mere importunity by some of the heirs of the deceased there being no factual and substantial bases therefor, is not adequate ratiocination for the removal of the administrator.

Sec. 3. Acts before revocation, resignation, or removal to be valid. - The lawful acts 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 had been no such revocation, resignation, or removal.

The effect of revocation of letters testamentary or of administration is to terminate the authority of the executor or administrator, but his acts, done in good faith prior to the revocation of the letters will be protected, and similar protection will be extended to rights acquired under a previous grant of administration.

Sec. 4. Powers of new executor or administrator. - Renewal of license to sell real estate. The person to whom letters testamentary or of administration are granted after the revocation of former letters, or the death, resignation, or removal of a former executor or administrator, 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 execution or administrator. An authority granted by the court to the former executor or administrator for the sale or mortgage of real estate may be renewed in favor of such person without further notice or hearing.

RULE 83

INVENTORY AND APPRAISAL;PROVISION FOR SUPPORT OF FAMILY

Sec. 1. Inventory and appraisal to be returned within three months. - Within three (3) months after his appointment every executor or administrator shall return to the court a true inventory and



appraisal of all the real and personal estate of the deceased which has come into his possession or knowledge. In the appraisement of such estate, the court may order one or more of the inheritance tax appraisers to give his or their assistance.

The 3-month period is not mandatory. Inventory filed after 3 months will not deprive the probate court of jurisdiction to approve it, but

such delay may be a ground for removal. Court has the inherent power to determine what properties, rights and credits of the deceased

should be included in or excluded from the inventory.

Sec. 2. Certain articles not to be inventoried. - The wearing apparel of the surviving husband or wife and minor children, the marriage bed and bedding, and such provisions and other articles as will necessarily be consumed in the subsistence of the family of the deceased, under the direction of the court, shall not be considered as assets, nor administered as such, and shall not be included in the inventory.

Sec. 3. Allowance to widow and family. - The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the court, such allowance as are provided by law.

Sale of estate is unnecessary when the cash in possession is sufficient for the monthly allowed being paid to the heirs.

The deceased’s legitimate spouse and children, regardless of age, civil status or gainful employment are entitled to provisional support from the funds estate. Allowance does not extend to grandchildren of the deceased.

RULE 84

GENERAL POWERS AND DUTIES OF EXECUTORSAND ADMINISTRATORS

Sec. 1. Executor or administrator to have access to partnership books and property; How right enforced. - 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 the surviving partner or partners, on request, shall exhibit to him all such books, papers, and property in their hands or control. 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.

Sec. 2. Executor or administrator to keep buildings in repair. - 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.

Sec. 3. Executor or administrator to retain whole estate to pay debts, and to administer estate not willed. - 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.

An administrator of an estate cannot exercise the right of legal redemption over a portion of the property owned in common which was sold by one of the co-owners since this is not within the powers of administration.

Where estate of a deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without any prior approval of the court.

The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised so long as it is necessary for the payment of the debts and expenses of administration.

RULE 85

ACCOUNTABILITY AND COMPENSATION OF EXECUTORSAND ADMINISTRATORS



Sec. 1. Executor or administrator chargeable with all estate and income. - Except as otherwise expressly provided in the following sections, every executor or administrator is chargeable in his account with the whole of the estate of the deceased which has come into his possession, 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.

Sec. 2. Not to profit by increase or lose by decrease in value. - No executor or administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been justly made. If he settles any claim against the estate for less than its nominal value, he is entitled to charge in his account only the amount he actually paid on the settlement.

Sec. 3. When not accountable for debts due estate. - No executor or administrator shall be accountable for debts due the deceased which remain uncollected without his fault.

Sec. 4. Accountable for income from realty used by him. - If the executor or administrator uses or occupies any part of the real estate himself, he shall account for it as may be agreed upon between him and the parties interested, or adjusted by the court with their assent; and if the parties do not agree upon the sum to be allowed, the same may be ascertained by the court, whose determination in this respect shall be final.

Sec. 5. Accountable if he neglects or delays to raise or pay money. - When an executor or administrator neglects or unreasonably delays to raise money, by collecting the debts or selling the real or personal estate of the deceased, or 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, and he shall be liable therefor on his bond.

The administrator himself is liable for any waste committed in the estate through his negligence, and with more reason that he be personally liable, and not the estate, for the consequences of his unlawful act.

The estate not having benefitted from the dispossession, besides not having been guilty of the unlawful act, it cannot be ordered to pay the damages.

Sec. 6. When allowed money paid as costs. - The amount paid by an executor or administrator for costs awarded against him shall be allowed in his administration account, unless it appears that the action or proceeding in which the costs are taxed was prosecuted or resisted without just cause, and not in good faith.

Sec. 7. What expenses and fees allowed executor or administrator. - Not to charge for services as attorney. Compensation provided by will controls unless renounced. An executor or administrator shall be allowed the necessary expenses in the care, management, and settlement of the estate, and for his services, four pesos per day for the time actually and necessarily employed , or a commission 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, 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 exceed 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 or 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.

Compensation of an administrator:

a. 4/day for the time actually and necessarily employed, or;

b. A commission upon the value of so much of the estate as comes to his possession and was disposed of by him according to the schedule provided.

An executor/administrator is allowed the necessary expenses in the care, management, and settlement of the estate.

He is also entitled to possess and manage the decedent’s real and personal estate as long as it is necessary for the payment of the debts and the expenses of administration.

Necessary expenses of administration are such expenses as are:

entailed for the preservation and productivity of the estate and

for its management for purpose of liquidation, payment of debts,

and distribution of the residue among persons entitled

for renovation and improvement of family residence

to preserve the family home and maintain family’s social standing.

Not necessary expenses:

Anniversary of the death of the deceased; Those incurred by a presumptive heir for her appearance and that of her witness at the trial to

oppose the probate of the alleged will;

For the settlement of the question as to who are entitled to the estate left by the deceased;

Incurred by the executor or administrator to procure bond

Personal expenses of the heir of the family residence

Expenses for stenographic notes, unexplained representation

An administrator or executor may be allowed fees for the necessary expenses but he may not recover attorney’s fees from the estate.

His compensation is fixed by the rule but such a compensation is in the nature of executor’s or administrator’s commissions and never as attorney’s fees.

A lawyer of an administrator or executor may not charge the estate for his fees, but rather his client.

Attorney’s fees may be allowed as expenses of administration.

The estate however is not directly liable for his fees, the liability for the payment resting primarily on the executor or administrator; if the administrator had paid the fees, he would be entitled to reimbursement from the estate.

Procedure:

Counsel should request the administrator to make payment and file an action against him in his personal capacity and not as an administrator should he fail to pay.



Counsel may file a petition in the testate or intestate proceeding asking that the court allow his claim and direct the administrator to pay it as an expense of administration.

Where greater sum may be awarded/ entitlement to additional compensation:

The estate must be large;

The settlement was extraordinarily difficult;

High degree of capacity was demonstrated by the administrator.

Although being a lawyer by itself is not a factor in the assessment of an administrator’s fee, it should be otherwise when the administrator was able to stop what appeared to be an improvident disbursement of a substantial amount without having to employ legal help at an additional expense.

Sec. 8. When executor or administrator to render account. - Every executor or administrator shall render an account of his administration within one (1) year from the time of receiving letters testamentary or of administration, unless the court otherwise directs because of extensions of time for presenting claims against, or paying the debts of, the estate, or for disposing of the estate; and he shall render such further accounts as the court may require until the estate is wholly settled.

This mandatory, unless otherwise directed by the court. The fact that all the heirs of the estate have entered into an extrajudicial settlement in order to put

an end to their differences cannot in any way be interpreted as waiver of the objections of the heirs to the accounts submitted by the administrator.

The duty of an administrator to render an account is not a mere incident of an administration proceeding which can be waived or disregarded when the same is terminated, but that it is 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 decedent’s estate be left unaccounted for.

It is ruled that an executor or administrator who receives assets of the estate after he has filed an account should file a supplementary account thereof with respect to the matters occurring after the settlement of final account.

The fact that the final accounts had been approved does not divest the court of jurisdiction to require supplemental accounting for, aside from initial accounting.

Sec. 9. Examination on oath with respect to account. - The court may examine the executor or administrator upon oath with respect to every matter relating to any account rendered by him, and shall so examine him as to the correctness of his account before the same is allowed, except when no objection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. The heirs, legatees, distributees, and creditors of the estate shall have the same privilege as the executor or administrator of being examined on oath of any matter relating to an administration.

At the hearing, the administrator will take the witness stand, testify under oath on his accounts, identify the receipts and documents evidencing his disbursements which are offered as exhibits; he may be interrogated by the court, and crossed by the opposing counsel.

Sec. 10. Account to be settled on notice. - Before the account of an executor or administrator is allowed, notice shall be given to persons interested of time and place of examining and allowing the same; and such notice may be given personally to such persons interested or by advertisement in a newspaper or newspapers, or both, as the court directs.

Sec. 11. Surety on bond may be party to accounting. - 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.

RULE 86



CLAIMS AGAINST ESTATE Sec. 1. Notice to creditors to be issued by court. - 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.

Administration proceedings are therefore instituted to settle the estate of the deceased.

The purpose of presentation of claims against decedents of the estate in the probate court is to protect the estate of deceased persons.

A compromise in separate civil case which is an action for collection against estate is null and void; the claim must be filed with the probate court within the period prescribed.

Sec. 2. Time within which claims shall be filed. - 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 (12) nor less than six (6) months after the date of the first publication of the notice. 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 (1) month.

This is the statute of non-claims: period for filing the claims against the estate. The probate court is permitted by the rule to set the period provided it is not less than 6 months

nor more than twelve months from the day of the first publication of the notice thereof; period fixed is mandatory.

Probate court is given the discretion to allow claims presented beyond the period previously fixed provided that they are filed within one month from the expiration of such period but in no case beyond the date of entry of the order of distribution.

It must be pointed out that the period prescribed in the notice to creditors is not exclusive, that money claims against the estate may be allowed at any time before an order of distribution is entered.

Though presentment of probate claims is imperative, it is generally understood that it may be waived by the estate’s representative when the administrator failed to plead the statue of non-claims, and his active participation and resistance to plaintiff’s claim in the civil suit for collection.

The pendency of the action before the regular courts was cited as a good excuse for the tardiness of the claim.

The creditor has the duty to present its claim within a reasonable time after the death of the decedent in the estate proceedings, and if none were had, to filed for letters of administration.

Sec. 3. Publication of notice to creditors. - Every executor or administrator shall, immediately after the notice to creditors is issued, cause the same to be published three (3) 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.

Sec. 4. Filing copy of printed notice. - Within ten (10) days 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 newspaper in which the same is printed.

Sec. 5. Claims which must be filed under the notice. - If not filed, barred; exceptions. 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, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator 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 as herein provided, 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. Claims not yet due or contingent, may be approved at their present value.

Not all money claim may however be presented, but only those which are proper against the decedent, that is , claims upon a liability contracted by the decedent before his death.

Claims arising after his death cannot thus be presented, except funeral expenses and expenses of the last sickness of the decedent.

Claims originating after the decedent’s death, may be allowed as expenses of administration which maybe collected from the administrator or executor personally or by motion in the testate or intestate proceedings without the formality and limitation provided for money claims against the decedent.

The following must be filed with the probate court within the time limited in the notice, otherwise barred.

a. All money claims against the decedent arising from contract, express or implied, whether the same be due or not due, or contingent;

b. All claims for funeral expenses and expenses for the last sickness of the decedent;

c. Judgment for money against the decedent which must be presented as a claim against the estate, where the judgment debtor dies levy on execution of his properties.

Period runs against all claimants, even against the State.

Money claims arising from delict do not form part of this exclusive enumeration.

If a writ of attachment had been issued and levied, the death of the defendant at whatever stage of the action would not be a ground for the dismissal of the action and dissolution of the writ.

If the judgment is entered against the estate of the deceased defendant, the same shall be enforced as a money claim. However, the writ of attachment obtained by the plaintiff which has not been dissolved will entitle him to preference over the other creditors.

A claim is extinguished by reason of death if the action is personal to either of the parties.

A claim may not have been extinguished by reason of death, such as an action to recover a contractual money claim, but the action brought for the enforcement of the claim may not survive.

Action to recover real or personal property or an interest therein, from the estate, or to enforce a lien therein, and action to recover damages for an injury to property, real or personal is an action which survive that may be commenced against the executor or administrator.

Action which survives: the wrong complained of affects primarily and principally property and property rights, the injuries to persons being merely incidental.

Action which do no survive: the injury complained of is to the person, the property and property rights affected being merely incidental.

If the debtor dies before an action could be filed against him, the creditor will have to file a money claim with the probate court.

If the claim does not arise from contract, express or implied, such as a claim for damages for an injury to person or property, an ordinary action may be filed against the executor or administrator (tort or delict).

If death of the defendant occurred prior to levy, the judgment is not enforceable by writ of execution; the judgment creditor must file claim in probate court.



An action for foreclosure of mortgage survives and may be enforced by writ of execution against the administrator without filing a claim in probate court.

Action for ejectment may be prosecuted despite the death of defendant and may continue until final judgment in which the question of damages should be adjudicated.

SC ruled that supervening death of the defendant did not extinguish hi wife’s action for partition of their conjugal assets, for it is an action that survives.

Claims that are extinguished:

a. Purely personal actions, but if there is already a final decree of legal separation, the action continues with respect to the liquidation of conjugal property.

A creditor cannot sue the surviving spouse of a decedent in an ordinary proceeding for the collection of sum of money chargeable against the conjugal partnership; proper remedy for him is to file a claim in the settlement proceedings.

If the action is against the conjugal partnership and one of the spouses died, the action should be dismissed and the claim filed against the estate.

Execution of final judgment is not the proper remedy to enforce payment, but to present a claim before the probate court so that said court may order the administrator to pay the amount thereof.

During the pendency of the proceedings all the estate is in custodia legis and the proper procedure is not to allow the sheriff, in case of a court judgment, to seize the properties but to ask the court for an order to require the administrator to pay the amount due from the estate and required to be paid.

In the absence of any showing that respondent judge who is taking cognizance of the estate proceedings had already allowed the administrator to dispose of the estate and to pay the debts and legacies of the deceased, a writ of mandamus will not issue to compel him to order payment of petitioner’s claim.

Where an executor or administrator 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.

Not only claims due, but also claims not due or contingent should be filed other they are barred forever.

A contingent claim is one by which, by its nature is necessarily dependent upon an uncertain event for its existence and claim, and its validity and enforceability depending upon an uncertain event. (ex: surety companies, mere possibility of a liability.

Sec. 6. Solidary obligation of decedent. - 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 form the other debtor. In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him.

In case of death of one of the solidary debtors, the creditor may, if he so chooses, proceed against the surviving solidary debtors without necessity of filing a claim in the estate of the deceased debtors.

Sec. 7. Mortgage debt due from estate. - A creditor holding a claim against the deceased secured by mortgage or other collateral security, may 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; or he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may claim his deficiency judgment in the manner provided in the preceding section; or he may rely upon his mortgage of other security alone, and foreclose the same at any time within the period of the statute of limitations, and in that event he shall not Notsoheavenly notes ***


be admitted as a creditor, and shall receive no share in the distribution of the other assets of the estate; 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.

Alternative remedies of the mortgagee in case the mortgagor dies:

b. Waive the mortgage and claim the entire debt from the estate of the mortgagor as an ordinary claim;

c. Foreclose the mortgage judicially and prove the deficiency as an ordinary claim;

d. Rely on the mortgage exclusively, or other security and foreclose the same at anytime, before it is barred by prescription, without the right to file a claim for any deficiency. ( mortgagee does not lose its right to extrajudicially foreclose the mortgage even after death of mortgagor.

The rule reserves the right of the executor or administrator of an estate to redeem a mortgage to the decedent which the mortgagee has opted to foreclose, instead of fling a money claim in the probate court.

No right to claim deficiency judgment under the third option.

The remedies are distinct, independent and mutually exclusive that can be alternatively pursued.

Sec. 8. Claim of executor or administrator against an estate. - 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.

Sec. 9. How to file a claim. Contents thereof; Notice to executor or administrator. - A claim may be filed by delivering the same with the necessary vouchers to the clerk of court 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 or affidavits 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, although the court, in its discretion, and as a matter of convenience, may order all the claims to be collected in a separate folder.

Administrator should be notified of any claim that is in fact asserted against the estate so as to afford him every opportunity to dispute the claim.

Lawyer, creditor of attorney’s fees has two remedies:

Prosecute an action against the administrator as an individual; if the judgment is rendered against the administrator and it is paid by him, when he presents his final account to the probate court to which he can include amount so paid as expenses of administration.

A monetary claim against the administrator which has a relation to his acts of administration may be presented for payment with the court where a special proceeding for this settlement of the estate is pending, though such claim was not incurred by the deceased in his lifetime and collectible after his death.

Sec. 10. Answer of executor or administrator; Offsets. - Within fifteen (15) days 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. The executor or administrator in his answer shall allege in offset any claim which the decedent before death has 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.

Sec. 11. Disposition of admitted claim. - 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 fifteen (15) days to file an answer to the claim in the manner prescribed in the preceding section.

Sec. 12. Trial of contested claim. - Upon the filing of an answer to a claim, or upon the expiration of the time for such filing, the clerk of court shall set the claim for trial with notice to both parties. The court may refer the claim to a commissioner.

Sec. 13. Judgment appealable. - The judgment of the court approving or disapproving a claim, shall be filed with the record of the administration proceedings with notice to both parties, and is appealable as in ordinary cases. A judgment against the executor or administrator shall be that he pay, in due course of administration, the amount ascertained to be due, and it shall not create any lien upon the property of the estate, or give to the judgment creditor any priority of payment.

Sec. 14. Costs. - When the executor or administrator, in his answer, admits and offers to pay part of a claim, and the claimant refuses to accept the amount offered in satisfaction of his claim, if he fails to obtain a more favorable judgment, he cannot recover costs, but must pay to the executor or administrator costs from the time of the offer. Where an action commenced against the deceased for money has been discontinued and the claim embraced therein presented as in this rule provided, the prevailing party shall be allowed the costs of his action up to the time of its discontinuance.

RULE 87

ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS Sec. 1. Actions which may and which may not be brought against executor or administrator. - No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

An administrator may not pull a third person against his will into the administration proceedings by mere motion for a demand of rentals, but must do so in a separate action.

Notices must be sent to estate’s administrator, he being the representative of the estate. An action for damages may be brought against an executor or administrator. An action for revival of money judgment may be filed against the administrator to preempt

prescription of judgment.

Sec. 2. Executor or administrator may bring or defend actions which survive. - For the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions for causes which survive.

Any action affecting the property rights of a deceased person which may be brought by or against him if he were alive, may likewise be instituted or prosecuted by or against the administrator, unless extinguished by death.

Action that survive against a decedent’s executor/administrator:

Actions to recover personal or real property; An interest thereon from the estate or to enforce a lien thereon from the estate;



Actions to recover damages for an injury to person or property, real or personal.

Injury to property is not limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished.

Action for foreclosure was not extinguished because the claim against him is not a pure money claim but an action to enforce a mortgage lien, it is an action which survived his death and which can proceed independently of the intestate proceedings for the settlement of his estate.

Sec. 3. Heir may not sue until have share assigned. - When an executor or administrator is appointed and assumes the trust, no action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee until the time allowed for paying debts has expired.

In order that an heir may assert his right to the property of a deceased, no previous judicial declaration of heirship is necessary.

No action to recover the title or possession of lands or for damages done to such lands shall be maintained against him by an heir or devisee until there is an order of the court assigning such lands to such heir or devisee or until the time allowed for paying debts has expired.

Such prohibition only apply to heirs or devises and not to a done inter vivos who may file an action to compel the administrator to deliver the property donated.

Heirs may act in place of the administrator if the latter is unwilling or fails to act.

Even if administration proceedings have already been commenced, the heirs may still bring the suit if an administrator has not yet been appointed.

Even if there is an appointed administrator, the heirs may still bring an action in the following:

If the executor/ administrator is unwilling or refuses to bring suit;

When the administrator is alleged to have participated in the act complained of and he is made a party defendant;

Or when the administrator is a party to the fraud.

Sec. 4. Executor or administrator may compound with debtor. - With the approval of the court, an executor or administrator 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.

Sec. 5. Mortgage due estate may be foreclosed. - 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.

There is no need of a special authority from the court for the administrator or executor to bring an action for foreclosure on behalf of the estate.

Sec. 6. Proceedings when property concealed, embezzled, or fraudulently conveyed. - If an executor or administrator, heir, legatee, creditor, or other individual interested in the estate of the deceased, complains to the court having jurisdiction of the estate that a person is suspected of having concealed, embezzled, or conveyed away any of the money, goods, or chattels of the deceased, or that such person has in his possession or has knowledge of any deed, conveyance, bond, contract, 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, the court may cite such suspected person to appear before it and may examine him on oath on the matter of such complaint; and if the person so cited refuses to appear, or to answer on such examination or such interrogatories as are put to him, the court may punish him for contempt, and may commit him to prison until he submits to the order of the court. The interrogatories put to any such person, and his answers thereto, shall be in writing and shall be filed in the clerk's office.



Third persons to whom the decedent’s assets have been fraudulently conveyed may be cited to appear in court and be examined under oath as to how they cam into the possession of the decedent’s assets.

In such proceeding, the court has no authority to decide whether the property, real or personal, belongs to the deceased or the persons examined.

If after examination, there is good reason for believing that the person so examined has property in his possession belonging to the estate, it is the duty of the administrator, by ordinary action, to recover the same.

Such proceedings are intended merely to investigate and take testimony for use in an independent action.

Sec. 7. Person entrusted with estate compelled to render account. - The court, on complaint of an executor or administrator, may cite a person entrusted by an executor or administrator with any part of the estate of the deceased to appear before it, 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 if the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court.

All persons who come into possession of a property belonging to any decedent are liable therefor and accountable to the lawful administrator when the estate is finally drawn into judicial administration.

Sec. 8. Embezzlement before letters issued. - If a person, before the granting of letters testamentary or of administration on the estate of the deceased, embezzles or alienates any of the money, goods, chattels, or effects 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.

This contemplates of an embezzlement or alienation which causes the estate to lose the property converted by the wrongdoer.

Double value rule does not apply to the manager of a company who carries on the business after the death of his principal and applies the proceeds of sale to the payment of debts contracted in running the business.

Sec. 9. Property fraudulently conveyed by deceased may be recovered; When executor or administrator must bring action. - When there is deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration, and the deceased in his lifetime had conveyed real or personal property, or a right or interest therein, or a debt or credit, with intent to defraud his creditors or to avoid any right, debt, or duty; or had so conveyed such property, right, interest, debt, or 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, the executor or administrator may commence and prosecute to final judgment an action for the recovery of such property, right, interest, debt, or credit for the benefit of the creditors; but he shall not be bound to commence the action unless on application of the creditors of the deceased, nor 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.

Sec. 10. When creditor may bring action; Lien for costs. - 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 executor or administrator has not commenced the action therein provided for, any creditor of the estate may, with the permission of the court, commence and prosecute to final judgment, in the name of the executor or administrator, a like action for the recovery of the subject of the conveyance or attempted conveyance for the benefit of the creditors. But the action shall not be commenced until the creditors has filed in a court 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. Where the conveyance or 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. Notsoheavenly notes ***


Requisites for creditor to file action to recover property fraudulently conveyed:

a. There is a deficiency of assets in the hands of an executor or administrator for the payment of debts and expenses of administration;

b. The deceased in his lifetime had made or attempted to make a fraudulent conveyance of his real or personal property or a right or interest therein, or a debt or credit, with intent to defraud his creditors or to avoid any right, debt or duty, or had so conveyed such property, right, debt, or credit that by law the conveyance would be void as against his creditors;

c. The subject of the attempted conveyance would be liable to attachment by any of them in his lifetime;

d. The executor or administrator has shown to have no desire to file the action or failed to institute the same within a reasonable time;

e. The leave is granted by the court to the creditor to file the action;

f. A bond is filed by the creditor as prescribed

g. The action by the creditor is in the name of the executor or administrator.

Administratrix who claims to be a creditor cannot ask for preliminary attachment in an action to recover since this is considered a money claim that should be ventilated in the estate case.

RULE 88

PAYMENT OF THE DEBTS OF THE ESTATE Sec. 1. Debts paid in full if estate sufficient. - If, after hearing all the money claims against the estate, and after ascertaining the amount of such claims, it appears that there are sufficient assets to pay debts, the executor or administrator shall pay the same within the time limited for that purpose.

Payment of debts and expenses of administration: Writ of execution is not proper; Court should order the sale of personal estate or the sale or mortgage of real property of the

deceased and all debts and expenses of the administration should be paid out of the proceeds of such sale or mortgage upon motion of the administrator and with written notice to all the heirs, legatees and devisees residing in the Philippines.

Probate court may hold in abeyance intestate proceedings pending determination of a civil case against the administratrix.

Sec. 2. Part of estate from which debt paid when provision made by will. - If the testator makes provision by his will, or designates the estate to be appropriated for the payment of debts, the expenses of administration, or the family expenses, they shall be paid according to the provisions of the will; but if the provisions made by the will or the estate appropriated, is not sufficient for that purpose, such part of the estate of the testator, real or personal, as is not disposed of by will, if any, shall be appropriated for that purpose.

Although the testator has acknowledged a specific debts in his will, the creditor is not relieved thereby from the duty of filing his claim in the testate or intestate proceeding, otherwise that claim will be barred.

Sec. 3. Personalty first chargeable for debts, then realty. - The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of debts and expenses; and if said personal estate is not sufficient for that purpose, or its sale would redound to the detriment of the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefor. Any deficiency shall be met by contributions in accordance with the provisions of section 6 of this rule. Notsoheavenly notes ***


The realty of the decedent is liable for debts and expenses in the following:

When the personal estate of the decedent is not sufficient for that purpose;

Where the sale of such personality would be to the detriment of the participants of the estate;

Here, only so much of the realty as is necessary may be sold, mortgage, or otherwise encumbered for the purpose of payment by the executor or administrator.

Sec. 4. Estate to be retained to meet contingent claims. - 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 sufficient estate to pay such contingent claim when the same becomes absolute, or, if the estate is insolvent, sufficient to pay a portion equal to the dividend of the other creditors.

Sec. 5. How contingent claim becoming absolute in two years allowed and paid; Action against distributees later. If such contingent claim becomes absolute and is presented to the court, or to the executor or administrator, within two (2) years from the time limited for other creditors to present their claims, it may be allowed by the court if not disputed by the executor or administrator, and, if disputed, it may be proved and allowed or disallowed by the court as the facts may warrant. If the contingent claim is allowed, the creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor or administrator is sufficient. But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same; 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.

If the contingent claim matures after expiration of the two years, the creditor may sue the distributes, who are liable in proportion to the shares in the estate respectively received by them.

The contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly against the distributees.

Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. - 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, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances require.

Even after the partition of an estate, the heirs and distributees are liable individually for the payment of all lawful outstanding claims against the estate in proportion to the amount or value of the property they have respectively received from the estate.

A legacy is not a debt of the estate and indeed, legatees are among those against whom execution is authorized to be issued.

Sec. 7. Order of payment if estate insolvent. - 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.

Refer to NCC.

Sec. 8. 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.

Sec. 9. Estate of insolvent nonresident, how disposed of. - 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


http://www.chanrobles.com/civilcodeofthephilippines.htm


practicable, be so disposed of that his creditors here and elsewhere may receive each an equal share, in proportion to their respective credits.

Sec. 10. When and how claim proved outside the Philippines against insolvent resident's estate paid. - 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 an opportunity to contest their allowance, 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; but 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.

Sec. 11. Order for payment of debts. - Before the expiration of the time limited for the payment of the debts, 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.

Sec. 12. Orders relating to payment of debts where appeal is taken. - 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.

Sec. 13. When subsequent distribution of assets ordered. - If the whole of the debts are not paid on the first distribution, and if the whole assets are not distributed, or 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.

Sec. 14. Creditors to be paid in accordance with terms of order. - When an order is made for the distribution of assets among the creditors, the executor or administrator shall, as soon as the time of payment arrives, pay the creditors the amounts of their claims, or the dividend thereon, in accordance with the terms of such order.

Sec. 15. Time for paying debts and legacies fixed, or extended after notice, within what periods. - On granting letters testamentary or administration the court shall allow to the executor or administrator a time for disposing of the estate and paying the debts and legacies of the deceased, which shall not, in the first instance, exceed one (1) year ; but the court may, 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, extend the time as the circumstances of the estate require not exceeding six (6) months for a single extension nor so that the whole period allowed to the original executor or administrator shall exceed two (2) years.

Sec. 16. Successor of dead executor or administrator may have time extended on notice within certain period. - When an executor or administrator 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 (6) months at a time and not exceeding six (6) months 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.

Speedy settlement of the estate as ruling spirit of probate law. Execution may issue only where the devisees, legatees, or heirs have entered into possession of

their respective portions in the estate prior to settlement and payment of the debts and expenses of administration and it is later ascertained that there are such debts and expenses to be paid, in such case the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue if circumstances require.

RULE 89



SALES, MORTGAGES, AND OTHER ENCUMBRANCES OF PROPERTY OF DECEDENT Sec. 1. Order of sale of personalty. - Upon the application of the executor or administrator, and on written notice to the heirs and other persons interested, the court may order the whole or a part of the personal estate to be sold, if it appears necessary for the purpose of paying debts, expenses of administration, or legacies, or for the preservation of the property.

It is only the court that has power to authorize the sale.

A power of attorney executed by the heirs in favor of the administrator gives no legal effect to the sale made without authority of the court.

Sec. 2. When court may authorize sale, mortgage, or other encumbrance of realty to pay debts and legacies through personalty not exhausted. - 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, the court, on the application of the executor or administrator and on written notice to the heirs, devisees, and legatees residing in the Philippines, 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 encumbrances would be beneficial to the persons interested; and 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.

Sec. 3. Persons interested may prevent such sale, etc., by giving bond. - No such authority to sell, mortgage, or otherwise encumber real or personal estate shall be granted 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 the executor or administrator, and may be prosecuted for the benefit of either.

Sec. 4. When court may authorize sale of estate as beneficial to interested persons; Disposal of proceeds. - When it appears that the sale of the whole or a part of the real or personal estate, will be beneficial to the heirs, devisees, legatees, and other interested persons, the court may, upon application of the executor or administrator and on written notice to the heirs, devisees and legatees who are interested in the estate to be sold, authorize the executor or administrator to sell the whole or a part of said estate, although not necessary to pay debts, legacies, or expenses of administration; but such authority shall not be granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall be assigned to the persons entitled to the estate in the proper proportions.

Sec. 5. When court may authorize sale, mortgage, or other encumbrance of estate to pay debts and legacies in other countries. - When the sale of personal estate, or the sale, mortgage, or other encumbrance of real estate is not necessary to pay the debts, expenses of administration, or legacies in the Philippines, but it appears from records and proceedings of a probate court in another country that the estate of the deceased in such other country is not sufficient to pay the debts, expenses of administration, and legacies there, the court here may authorize the executor or administrator to sell the personal estate or to sell, mortgage, or otherwise encumber the real estate for the payment of debts or legacies in the other country, in the same manner as for the payment of debts or legacies in the Philippines.

Requisites of written notice of application as well as the time and place of hearing to be served upon the heirs, devisees and legatees residing in the Philippines is mandatory, without which the encumbrance is void.

It does not follow that for purposes of complying with the requirement of notice, notice to the father is notice to the children.

If the heirs were duly represented by counsel or by a guardian ad litem in case of minors, the notice may be given to such counsel or guardian ad litem.

Reason for mandatory requirement: heirs are the presumptive owners; they are the persons directly affected by the sale or mortgage therefore cannot be deprived of the property except as provided by law.



Sec. 6. When court may authorize sale, mortgage, or other encumbrance of realty acquired on execution or foreclosure. - The court may authorize an executor or administrator to sell, mortgage, or otherwise encumber real estate acquired by him on execution or foreclosure sale, under the same circumstances and under the same regulations as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate.

Sec. 7. Regulations for granting authority to sell, mortgage, or otherwise encumber estate. - The court having jurisdiction of the estate of the deceased may authorize the executor or administrator to sell personal estate, or to sell, mortgage, or otherwise encumber real estate; in cases provided by these rules and when it appears necessary or beneficial, under the following regulations:

(a) The executor or administrator shall file a written petition setting forth the debts due from the deceased, the expenses of administration, the legacies, the value of the personal estate, the situation of the estate to be sold, mortgaged, or otherwise encumbered, and such other facts as show that the sale, mortgage, or other encumbrance is necessary or beneficial;

(b) The court shall thereupon fix a time and place for hearing such petition, and cause notice stating the nature of the petition, the reason for the same, and the time and place of hearing, to be given personally or by mail to the persons interested, and may cause such further notice to be given, by publication or otherwise, as it shall deem proper;

(c) 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) If the requirements in the preceding subdivisions of this section have been complied with, the court, by order stating such compliance, may authorize the executor or administrator to sell, mortgage, or otherwise encumber, in proper cases, such part of the estate as is deemed necessary, and in case of sale the court may authorize it to be public or private, as would be most beneficial to all parties concerned. The executor or administrator shall be furnished with a certified copy of such order;

(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 the real estate thus sold, mortgaged, or otherwise encumbered is situated, a certified copy of the order of the court, together with the deed of the executor or administrator for such real estate, which shall be as valid as if the deed had been executed by the deceased in his lifetime.

Regulations here are mandatory and apply to both testate and intestate proceedings. Violation thereof renders the order of sale void.

Failure to receive notice where it appears that she had actual knowledge of the application is not sufficient legal cause to annul the sale ordered by court.

A sale of land under judicial administration is not effective until approved by the court, and, although leave of court to sell the property has been obtained, a purported sale which has not been approved and which varies materially from the authority granted cannot be made on the basis of an action by the purchaser for specific performance.

Any unauthorized disposition does not bind the estate and is null and void, and title does not pass to the purchaser.

When the estate of the deceased person is already the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction involving it without prior approval of the court.

It is the probate court that has the power to authorize and/or approve the sale, hence, a fortiori, it is said court that can declare it null and void for as long as the proceedings had not been closed or terminated.

An administratrix of an estate already subject of a special proceeding pending before the probate court cannot enjoy blanket authority to dispose of real properties as she pleases.



It is within the jurisdiction of a probate court to approve the sale of properties of a deceased person by his prospective heirs before final adjudication.

The probate court has no jurisdiction to make pronouncement regarding the existence or non-existence of encumbrances or cancel a mortgage on real property in its order approving the sale of the estate under administration.

The sale made by an heir of his share in an inheritance, subject to the result of the pending administration is valid and in no way stands in the way of such administration.

Reference to judicial approval cannot adversely affect the substantive rights of the heirs to dispose of their ideal share in the co-heirship and/or co-ownership among the heirs

An heir can certainly sell whatever right, interest, or participation he may have in the property under administration.

The effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.

Sec. 8. When a court may authorize conveyance or realty which deceased contracted to convey; Notice; Effect of deed. - Where the deceased was in his lifetime under contract, binding in law, to deed real property, or an interest therein, the court having jurisdiction of the estate may, on application for that purpose, authorize the executor or administrator to convey such property according to such contract, or with such modifications as are agreed upon by the parties and approved by the court; and if the contract is to convey real property to the executor or administrator, the clerk of the court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall be as effectual to convey the property as if executed by the deceased in his lifetime; but no such conveyance shall be authorized until notice of the application for that 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; nor if the assets in the hands of the executor or administrator will thereby be reduced so as to prevent a creditor from receiving his full debt or diminish his dividend.

Sec. 9. When court may authorize conveyance of lands which deceased held in trust. - Where the deceased in his lifetime held real property in trust for another person, the court may, after notice given as required in the last preceding section, authorize the executor or administrator to deed such property to the person, or his executor or administrator, for whose use and benefit it was so held; and the court may order the execution of such trust, whether created by deed or by law.

A contract of sale is not invalidated by the fact that it is subject to probate court approval, but the same remains binding on the seller-heir, but not on the other heirs who have not given their consent to it.

A probate court has jurisdiction over matters incidental and collateral to the exercise of its recognized powers.

The rule does not limit to the executor or administrator the right to file the application for authority to sell, mortgage or otherwise encumber realty administration as it inures to any person who stands to be benefited or injured by the judgment or to be entitled to the avails of the suit.

Rule requiring court approval for any disposition merely means that the property may be take out of custodial egis, but only with court’s permission.

The authority of convey here can be given only after notice of the application for that purpose has been given to all persons interested, otherwise, the order authorizing the conveyance as well as the conveyance itself is null and void.

RULE 90

DISTRIBUTION AND PARTITION OF THE ESTATENotsoheavenly notes ***


Sec. 1. When order for distribution of residue made. - When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such person may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession . If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.

Sec. 2. Questions as to advancement to be determined. - Questions as to advancement made, or alleged to have been made, by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be binding on the person raising the questions and on the heir.

Sec. 3. By whom expenses of partition paid. - If at the time of the distribution the executor or administrator 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; 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.

Approval of a project of partition does not necessarily terminate administration.

Before a court can make a partition and distribution of the estate of a deceased, it must first settle the estate in a special proceeding instituted for the purpose.

The distribution of the estate properties can only be made:

1. After all the debts, funeral charges, expenses of administration, allowance to the widow and estate tax have been paid;

2. Before payment of said obligations only if the distributees or any of them gives a bond in a sum fixed by the court conditioned upon the payment of said obligations within such time as the court directs, or when provision is made to meet those obligations.

Proceedings for the settlement of estate is deemed ready for final closure:

1. When there should have been issued already an order of distribution or assignment of the estate of the deceased to those entitled;

2. Such order shall not be issued until it is shown that the debts, funeral expenses, etc have been paid

3. Such order is usually upon proper and specific application for the purpose of the interested party, not of the court.

The following stages must be followed before there could be a distribution of the estate:

a. Payment of obligations

Debts, funeral charges, inheritance tax, if any chargeable to the estate in accordance with law; if there is a residue, this may be distributed among the heirs.

The distribution of the assets may only be ordered under any of the following:

When the inheritance tax, among others is paid;



When a sufficient bond is given to meet the payment of the inheritance tax and all other obligations enumerated in the provision or;

When payment of the said tax and all other obligations mentioned in said rule has been provided for.

The heirs’ right of ownership over the properties of his father is merely inchoate as long as the estate has not been fully settled and partitioned.

The probate of the will is conclusive as to its due execution and extrinsic validity and settles only the question of whether the testator, being of sound mind, freely executed it in accordance with the formalities prescribed by law.

Questions as to the intrinsic validity and efficacy of the provisions of the will, the legality of any devise or legacy may be raised even after the will has been authenticated.

b. Declaration of heirs

A separate action for the declaration of heirs is not proper.

After, not before the declaration of heirs is made, may the residue be distributed and delivered to the heirs.

b.1. Broad powers of the probate court:

any challenge to the validity of a will, any objection to the authentication thereof, and every demand or claim which any heir, legatee or party interested in a testate or intestate succession may make, must be acted upon and decided within the same special proceedings, not in a separate action; and the same having jurisdiction in the administration of the estate shall take cognizance of the question raised, inasmuch as when the day comes he will be called upon to make distribution and adjudication of the property to the interested parties.

b.2. power of probate court to determine right of natural child:

action for compulsory recognition of a natural child may be instituted and decided in the proceeding for the settlement of the estate;

adoption decree cannot be assailed in the settlement proceedings because it cannot be attacked collaterally.

b.3. declaration of heir or of such entitled by law to the residue should be made after the payment of all debts, and other charges

b.4.The probate court in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to which each distributee is entitled.

But the right of the heirs to specific distributive share of inheritance does not become finally terminable until all the debts of the estate are paid.

The net estate of the deceased must be ascertained by the deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death, then, all donations subject to collation would be added to it.

Questions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court having jurisdiction of the estate proceedings, and the final order of the court thereon shall be binding on the person raising the questions and on the heir.

The creditor of an heir of a deceased person is entitled to collect his claim out of the property which pertains by inheritance to said heir, only after all debts of the testate or intestate succession have been paid and when the net assets that are divisible among the heirs are known, because the debts of the deceased must be paid before the heirs can inherit.



b.5. The rule allows preliminary attachment of the interest of a party in property belonging to the estate of the decedent whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the deceased with a copy of the order and notice that said interest is attached.

A project of partition is merely a proposal for the distribution of the hereditary estate which the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto.

It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties.

The court acquires jurisdiction over all persons interested, through the publication of the notice prescribed and any order that may be entered therein is binding against all of them.

The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence.

The better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action.

If decree is erroneous, it should be corrected by opportune appeal, for once it becomes final, its binding effect it like any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.

A court should not interfere with probate proceedings pending in a co-equal court.

As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated, because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed.

The intestate proceedings although closed and terminated, can still be reopened within the prescriptive period upon petition by the preterited heir.

The settlement of the estate is deemed terminated only upon final distribution of the estate.

Order which determines the distributive shares of the heirs of a deceased person is appealable.

SC once allowed the continuation of a separate action to annul the project of partition, since the estate proceedings have been closed and terminated for over three years.

The non-distribution of the estate is not a ground for the reopening of the testate proceedings.

A preterited heir was allowed to file an action to annul the project of partition where the estate proceedings have already been closed.

A spurious child is allowed to file a separate action to establish filiation and at the same time enforce his hereditary rights.

The administration proceedings may not be closed if there is an action by third persons against the administrator and the heirs for the recovery of property involved in the proceedings and in such case the closure must wait until the ordinary civil action is finally terminated.

Instances when probate court may issue writ of execution(inclusion unius est exclusion alterius):

1. To satisfy the contributive shares of devisees, legatees and heirs in possession of the decedent’s estate;



2. To enforce payment of expenses of partition;

To satisfy the costs when a person is cited for examination in probate proceedings.

The probate court has the authority to order the issuance of a writ of possession for the recovery of the share by the heir or other interested person from the executor or administrator or other persons having possession of the property without the need of previous demand.

Sec. 4. Recording the order of partition of estate. - 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.

RULE 91

ESCHEATS Sec. 1. When and by whom petition filed. - When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Court of First Instance of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated.

Escheat is a proceedings whereby the real and personal property of a deceased person in the Philippines, become the property of the state upon his death, without leaving any will or legal heirs.

This is a substantial right of the state; a special proceeding which is commenced by petition, not complaint.

This must be initiated by the government through the Solicitor general. All interested parties especially the actual occupants and the adjacent lot owners shall be

personally notified of the proceeding and given the opportunity to present their valid claims, otherwise it will be reverted to the State.

A depositary bank should be joined as a respondent in an action for escheat since a decree of escheat would necessarily deprive it of the use of such deposit, under the law on forfeiture of dormant bank deposits.

Petition for escheat may be filed with the RTC of the province where the deceased last resided or in which he had estate, if he was a non-resident.

Requisites for filing the petition:1. The person died intestate;2. Deceased left no heirs or person by law entitled to the same3. The deceased left properties.

Once the court acquires jurisdiction to hear the petition for escheat by virtue of the publication of the petition for escheat, this jurisdiction cannot be converted into one for distribution of the properties of the decedent.

Sec. 2. Order for hearing. - 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 (6) 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 (6) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best.

Motion to dismiss is allowed when petition failed to state the facts which entitle the petitioner to the remedy prayed for, akin to demurrer to evidence, petition may be consequently dismissed.

Sec. 3. Hearing and judgment. - Upon the satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the person died intestate, seized of real or personal property in the Philippines, leaving no heir or person entitled to the same, and no sufficient cause being shown to the contrary, the court shall adjudge that the estate of the deceased in the Philippines, after the payment of just debts and charges, shall



escheat; and shall, pursuant to law, assign the personal estate to the municipality or city where he last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate may be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. 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.

A judgment of escheat was held conclusive upon persons notified by advertisement to all persons interested.

Escheats and forfeitures are not favored by law, and the modern rule under statutes regulating escheat proceedings is that the burden of proof rests on the state to prove that the property in question is in all respects liable to escheat.

The right to escheat may be waived, either expressly or impliedly.

Sec. 4. When and by whom claim to estate filed. - If a devisee, legatee, heir, widow, widower or other person entitled to such estate appears and files a claim thereto with the court within five (5) years from the date of such judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds, after deducting reasonable charges for the care of the estate; but a claim not made within said time shall be forever barred.

If a person legally entitled to the estate of the decedent appears, he should file a claim with the court within 5 years from the date the property was delivered to the state, otherwise, it is barred.

In the absence of jurisdiction to order an escheat due to noncompliance with jurisdictional requirements, the court has no jurisdiction to grant the remedy enabling the devisee, legatee, heir, widow, widower or other person entitled to the estate to appear within a specific period from the date of the decree of escheat and file a claim to the estate.

Sec. 5. Other actions for escheat. - 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.

Escheat and reversion have the same effects. They only differ in the enabling law, reversion is under public land act.

A proceeding to escheat or for reversion of lands held in violation of laws prohibiting alien ownership has been held to be a civil action rather than a criminal proceeding.

Guardianship- power of protective authority given by law and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age or other infirmity renders him unable to protect himself.

Guardian- a person in whom the law has entrusted the custody and control of the person or estate or both of an infant, insane or other person incapable of managing his own affairs.

A trust relation;

Based on parens patriae;

Purpose is to safeguard the right and interest of minors and incompetent persons;

Kinds: guardian of the person, guardian of the property, general guardians, legal guardians, guardian ad litem, judicial guardian.

Guardianship of minors is under the exclusive jurisdiction of the family courts, while those of other incompetent are still with RTC.Notsoheavenly notes ***


Rule on Guardianship of minors is governed by AM No. 034-02-05 SC

Rule of guardianship of incompetents, other than minors is governed by Rule 92-98.

Salient features of AM No. 034-02-05 SC:

Parents shall exercise joint legal guardianship over the person and property of the minor without need of court appointment of if the property of the child is worth 2k or less. (subject to 3 exceptions)

Who may file petition:

any relative or other person on behalf a minor;

or the minor himself if fourteen years of age or over;

If minor needs to be hospitalized, may be filed by the Secretary of Social welfare and development of secretary of health.

Where to file: Family court of the province or city where the minor actually resides

If resident of foreign country, in the Family Court of province where his property or any part thereof is situated.

RULE 92

VENUE Sec. 1. Where to institute proceedings. - Guardianship of the person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent person resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or part thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance.

In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court.

Authority of the guardian may extend only to the property of the minor or incompetent within such state.

Residence is normally understood to mean the domicile of the minor or incompetent.

Sec. 2. Meaning of word "incompetent." - Under this rule, the word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.

Civil interdiction deprives the offender during the time of his sentence of his rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, or the right to manage his property and of any right to dispose of such property by any act or any conveyance inter vivos. Likewise, they are deemed incompetent for whom guardians may be appointed.

In order to render a person legally unfit to administer his affairs, his acts of prodigality must show a morbid mnd and a disposition to spend or waste the estate so as to expose his family to want or to deprive his forced heirs of their inheritance.



The court before it can issue a decree of prodigality, must have before it competent evidence demonstrating the necessary facts and the evidence must be clear and definite.

Every adult is presumed sane. However, where the question of insanity is put in issue in guardianship proceedings, and a guardian is named for the person alleged to be incapacitated, a presumption of the mental infirmity of the ward is created.

Sec. 3. Transfer of venue. - 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 jurisdiction to continue the proceedings, without requiring payment of additional court fees.

When a case is filed in one branch of the RTC, jurisdiction over the case does not attaché to the branch of judge alone to the exclusion of other branches.

But when one branch had already resumed its jurisdiction by issuing two orders, the other branch should relinquish its jurisdiction over the guardianship proceedings.

RULE 93

APPOINTMENT OF GUARDIANS Sec. 1. Who may petition for appointment of guardian for resident. - Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. An officer of the Federal Administration of the United States in the Philippines may also file a petition in favor of a ward thereof, and the Director of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper.

From the fact that a person may be incompetent to act as executor or administrator, it does not follow that he could be placed under guardianship.

But if a person is incompetent to act as executor or administrator, then he is not the incompetent person envisaged in the law of guardianship.

Sec. 2. Contents of petition. - A petition for the appointment of a general guardian must show, so far as known to the petitioner:


(b) The minority or incompetency rendering the appointment necessary or convenient;

(c) The names, ages, and residences of the relatives of the minor or incompetent, and of the persons having him in their care;

(d) The probable value and character of his estate;

(e) The name of the person for whom letters of guardianship are prayed.

The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship.

Facts which must appear in the application which give the court authority to act over it:; The minority of incompetency of the person for whom guardianship is sought; His domicile.

In a petition for appointment of guardian of the property of the minor or incompetent, it is a jurisdictional fact and should be alleged therein, that the minor has property needing the care and attention of a guardian.

While allegation as to the names, ages and residences of the minor’s relatives is jurisdictional, the same may not be necessary where the petition was filed by the minor’s relatives themselves.



The correction of a minor’s name in whose behalf a petition for guardianship was filed may be made by way of a motion.

Where no particular form of verification of a petition for the appointment of a guardian is prescribed, but the statute simply requires the petition to be verified, it is sufficient if it is dated, signed, sworn to and duly certified in a manner similar to the practice formerly prevailing in the case of sworn bills and answers.

Sec. 3. Court to set time for hearing; Notice thereof. - When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age or the incompetent himself, and may direct other general or special notice thereof to be given.

Notice for hearing of the petition shall be served by the court to:

1. The persons mentioned in the petition residing in the Philippines;

2. The minor himself if above 14 years of age and the incompetent himself.

o As to the effect of failure to notify an alleged insane person, where such notice is required, it has sometimes been held that the appointment of a guardian without notice to the former is a jurisdictional defect which renders the appointment void and subject to collateral attack.

o Service of notice upon the minor if above 14 years or upon the incompetent is jurisdictional, without which the court acquired no jurisdiction to appoint a guardian.

Sec. 4. Opposition to petition. - Any interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor, competency of the alleged incompetent, or the unsuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable person named in the opposition.

The opposition must be in writing, but need not be verified.

Grounds:

Majority of the alleged minor;

Competency of the alleged incompetent

Incompetency of the person for whom letters are prayed for.

If the interested person is a creditor and mortgagee of the estate of the minor, he cannot be appointed guardian of the person and property of the latter.

Opposition to the appointment of a person as guardian ad litem should be first addressed to and resolved by the lower court and not first time on appeal. But if dismissed by lower court, it may be appealed.

Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition the alleged incompetent must be present if able to attend, and 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, and, if the person in question is a minor, or incompetent it shall appoint a suitable guardian of his person or estate, or both, with the powers and duties hereinafter specified.

The order issuing letters of guardianship should be sufficient in form and substance to invest the appointee with due authority; and statutory requirements with respect to what shall be contained or specified in the order must be complied with.

The order must identify the ward, but it is not essential that the ward be mentioned by name if he is otherwise sufficiently identified.

In determining the selection of a guardian, the court may consider the financial situation, the physical condition and sound judgment, prudence and trustworthiness, the morals, character and



conduct, and the present and past history of a prospective appointee, as well as the probability of his being able to exercise the powers and duties of a guardian for the full period during which guardianship will be necessary.

Reasons for incompetency of guardian (disqualification):

Mental incapacity;

Conviction of a crime, moral delinquency or physical disability as to be prevented from properly discharging duties of his office.

A guardian once appointed may be removed in case he becomes insane, or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate or failed for 30 days after it is due to render an account or make a return.

There is no order of preference in the appointment of guardians.

Sec. 6. When and how guardian for nonresident appointed; Notice. - When a person liable to be put under guardianship resides without the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing, the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate.

Ancillary guardianship means a guardianship in a state other than that in which guardianship is originally granted and which is subservient and subsidiary to the latter.

A court of a state in which an incompetent has property has jurisdiction to appoint a guardian to his estate in which case, jurisdiction may be acquired by constructive notice by publication.

The confusing part is: it is generally considered that a proceeding to inquire into the insanity of alleged incompetent for the purpose of appointing a guardian of his person is in personam and some courts broadly state that the personal service distinct from service by publication is essential to give the court jurisdiction.

Sec. 7. Parents as guardians. - When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these rules, and shall file the petition required by section 2 thereof. For good reasons the court may, however, appoint another suitable person. (this is deemed modified by the FC)

Parents who are the natural guardians cannot dispose the property of the child because such power is granted by law only to a judicial guardian of the ward’s property and even then only with courts prior approval.

Disposal of minor’s property without court approval is null and void, and will not constitute lien on the property and does not bind any party who may consequently legally acquire ownership thereof, even if the latter had knowledge of such transaction prior to their acquisition of said property.

Vendees prejudiced by illegal transactions of natural guardians have no cause of action against subsequent legal owners but the reedy lies against the natural guardians not to recover the property, but recover damages.

Sec. 8. 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.



RULE 94

BONDS OF GUARDIANS Sec. 1. Bond to be given before issuance of letters; Amount; Conditions. - 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 three (3) months, 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 and 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;

(d) To perform all orders of the court by him to be performed.

The bond serves as security to those interested in the property settlement of the estate, and the parties interested acquire a vested interest in the bond which cannot be divested without their consent.

The court should not grant letters of guardianship without requiring a bond.

The amount of the bond must be fixed by the court with reference to the infant’s estate and in so fixing the amount, the court is not bound by the allegations in the petition as to the value of the estate.

A guardian’s bond takes effect as of the day of its date and of his appointment, notwithstanding the bond may have been filed later.

At the expiration/termination of the guardianship, the guardian shall settle his account with the court and deliver and pay over the estate, effects and moneys remaining in his hands or due from him on such settlement to the person entitled thereto.

Sec. 2. When new bond may be required and old sureties discharged. - Whenever it is deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the estate.

Requiring additional bond is within the authority of the court. New bond may be required when the guardian is about to receive funds not in contemplation when

the original bond was executed and should be given as a condition of the payment of a legacy or distributive share to the guardian when there is any express statutory requirements to that effect.

Sec. 3. Bonds to be filed; Actions thereon. - Every bond given by a guardian shall be filed in the office of the clerk of the court, and, in case of the breach of a condition thereof, 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.

The bond will be construed and enforced in accordance with the intention and scope of the guardian and his surety in giving it.

Their responsibility must depend upon the extent of the obligation created by the terms of the bond and the statutes which can be read into it.

The bond of the guardian is continuing one against the obligators and their estates until all of its condition are fulfilled.

The mere fact that defendant was removed as guardian did not relieve her or her bondsmen from liability during the time she was duly acting as such guardian.



The sureties of a guardian against whom judgment has been entered may demand the benefit of a levy of the principal’s property even when judgment is rendered against both surety and principal.

RULE 95

SELLING AND ENCUMBERING PROPERTY OF WARD

Sec. 1. Petition of guardian for leave to sell or encumber estate. - When the income of an estate under guardianship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, 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, the guardian may present a verified petition to the court by which he was appointed setting forth such facts, and praying that an order issue authorizing the sale or encumbrance.

When guardian may sell or encumber the estate of the ward:1. The income of the estate of the minor or incompetent under guardianship is insufficient to maintain

the ward and his family;2. The income is insufficient to maintain and educate the ward when a minor; or3. 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.

o In order to enable the guardian to sell or encumber the estate of the ward, a petition must first be filed before the court for such sale or encumbrance.

o A guardian has no authority to sell real estate of his ward merely by reason of his general powers, and in the absence of any special authority to sell conferred by will, statute or order of court, a sale of the ward’s realty by the guardian without authority form the court is void.

Sec. 2. Order to show cause thereupon. - If it seems probable that such sale or encumbrance is necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of the ward, and all persons interested in the estate, to appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted.

Next of kin- not the next of kindred but those relatives who share in the estate according to the statute of distribution.

Notice to next of kin is a jurisdictional requirement and which may not be dispensed with.

The notice is sufficient when it recites that notice is thereby given that a petition to sell the ward’s real estate will be presented to a named court, at a named place, on a named date, and when and where all persons interested may, appear and show cause, if they have any, why such petition should not be granted.

Omission of time, court acquires no jurisdiction, sale is void.

Only the children have an interest in the land of their father, besides the creditors, and only they or the creditors who may have been prejudiced by the sale have a right to object thereto.

Sec. 3. Hearing on return of order; Costs. - At the time and place designated in the order to show cause, the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward require. The court shall make such order as to costs of the hearing as may be just.

The court should ascertain and determine whether the facts requisite to the granting of the petition exist, and should select the part or parts of the property which can be disposed of with the least injury to the ward.

Sec. 4. Contents of order for sale or encumbrance, and how long effective; Bond. - If, after full examination, it appears that it is necessary, or would be beneficial to the ward, to sell or encumber the estate, or some portion of it, the court shall order such sale or encumbrance and that the proceeds thereof be expended for the maintenance of the ward and his family, or the education of the ward, if a minor, or Notsoheavenly notes ***


for the putting of the same out at interest, or the investment of the same as the circumstances may require. The order shall specify the causes why the sale or encumbrance is necessary or beneficial, and may direct that estate ordered sold be disposed of at either public or private sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond as a condition for the granting of the order of sale. No order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same, without a sale being had.

While the ward’s title passes only to the execution of a deed by the guardian and not on the confirmation of the sale by the court, in order that a sale may be of such validity, that , upon the execution of a deed, title may pass to the purchaser, it is essential that the sale first be confirmed by the court, and that until such confirmation, not even equitable title passes.

Confirmation may not be necessary where the court’s order expressly authorized the guardian to execute and deliver to the purchaser definitely named a deed of conveyance to a parcel of land and it was intended to be the approval itself of the sale that was already perfected or agreed upon by the seller and buyers.

Guardians cannot acquire by purchase even at a public or judicial auction, either in person through the mediation of another, the property of the person or persons who may be under his guardianship.

Court may annul guardian’s sale where court authority was obtained without disclosing the fact that the property had previously been sold at sheriff’s sale to another pursuant to execution, the sale duly noted on the title.

Cancellation of authority of the guardian to sell the property of the ward did not and could not, affect the rights of the buyer, where at the time that the order canceling the authority to sell was entered, the guardian had already acted in accordance with the authority and sold the property.

There being a presumption that the sale of the ward’s estate is valid, the same cannot be attacked collaterally in the registration proceedings.

A separate action to avoid or rescind the sale on the grounds specified by law should have been filed.

The order empowering the guardian to sell property belonging to the ward shall not be effective for more than 1 year after it has been granted.

Appeal is the proper remedy against an order of the court authorizing the sale of the ward’s property.

Sec. 5. Court may order investment of proceeds and direct management of estate. - The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his hands, in real estate or otherwise, 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, as circumstances may require.

This requires judicial authority in order that a guardian may invest the ward’s money, but it does not provide that said authority must always be either prior to or expressed.

The rule seeks principally to protect the funds of the ward against imprudent or unsafe investments by the guardians.

Once the ward reaches majority or becomes entitled to the proceeds, it is the duty of the guardian to account for and turn them over to him and he cannot refuse to do so because of the fact that the sale may been irregular, if the ward is willing to abide by it, provided of course the ward is entitled to particular proceeds.

A guardian may lease the property of the ward and if it would be recorded, the same should be by proper authority of the court. This applies to term of lease which is longer than one year.



RULE 96

GENERAL POWERS AND DUTIES OF GUARDIANS Sec. 1. To what guardianship shall extend. - 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 the estate only, as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

A lawfully appointed general guardian or guardian of the estate has general authority over the property and the affairs of his ward.

Conflicts regarding the ownership or title to the property in the hands of the guardian in his capacity as such should be litigated in a separate proceeding.

The court in the guardianship proceeding is being solely concerned with the ward’s care and custody and proper administration of his properties.

One who has been appointed guardian ad litem by the court for minor heirs is not acting in representative capacity as a negotiorum gestor and must have some express authority form the persons he purports to represent.

Sec. 2. Guardian to pay debts of ward. - Every guardian must pay the ward's just debts out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an order for the sale or encumbrance thereof.

There is prohibition on taking ward’s property without court approval.

Sec. 3. Guardian to settle accounts, collect debts, and appear in actions for ward. - A guardian must settle all accounts of his ward, and demand, sue for, and receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; and he shall appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose.

It is the right and duty of a general guardian or a guardian of the estate to collect all assets of the ward, and to reduce the possession the ward’s choses in action and collect the debts and obligations due him.

Failure of the guardian to collect the personal estate of the ward due to negligence will make the guardian liable for the amount of the assets lost thereby, which might have been collected had he been diligent.

It is the duty of the guardian to cause action, for the recovery of the debts due the ward, to be instituted in the name of the ward, by himself or some other person as next friend, when such proceedings are necessary for the preservation of the estate.

A guardian has authority to compromise a claim existing in favor of the ward, provided he acts in good faith.

Prior approval of the court for a compromise by the guardian should be first secured.

A guardian ad litem has no authority to act or bind a minor in any transaction with regard to his estate, but he can do so with the approval of the court.

Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. - A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereon, so far as may be necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order so to do, and apply so much of the proceeds as may be necessary to such maintenance.

Duty of the guardian is to manage the estate frugally, and the duty carries with it the right to take possession of such estate and recover it from any who retains it.

Guardian is liable, to his ward for the management of the estate from the time of acceptance until his removal or release.

Guardian must give his personal care and attention to the maintenance of the ward’s estate and to keep the funds and property of the ward under his own control.



Sec. 5. Guardian may be authorized to join in partition proceedings after hearing. - The court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ward jointly or in common with others, but such authority shall only be granted after hearing, upon such notice to relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action.

Guardian may institute action for partition of properties which the ward may hold in common or jointly with others provided:

1. Such permission or authorization by the court be granted only after hearing the petition for the grant of such authority;

2. The relatives of the ward be duly notified of such petition for partition;

3. Such authorization be granted only after a careful investigation as to the necessity and propriety of the proposed action;

o When the interest of either parent in the partition conflicts with that of the children under his parental authority, such parent cannot represent them therein, and a third party will be appointed to represent them in law and in fact.

Sec. 6. Proceedings when person suspected of embezzling or concealing property of ward. - Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir, or otherwise, 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, 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.

This is to secure evidence from persons suspected of embezzling, concealing or conveying away any property of the ward or of the deceased so as to enable said guardian or administrator to institute the appropriate action to obtain the possession of and secure title to said property but it cannot order the delivery of the ward’s property being embezzled.

Determination of said right or title must be had in a separate proceedings because jurisdiction of the court in guardianship proceedings is to cite persons suspected which may be used in a latter action to protect the right of the ward.

Sec. 7. Inventories and accounts of guardians, and appraisement of estates. - A guardian must render to the court an inventory of the estate of his ward within three (3) months after his appointment, and annually after such appointment an inventory and account, the rendition of any of which may be compelled upon the application of an interested person. Such inventories and accounts shall be sworn to by the guardian. All the estate of the ward described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within three (3) months after such discovery, succession, or acquisition.

The guardian is required under the rules to file an inventory of the ward’s estate which will constitute the basis of subsequent accounting and settlement.

Failure of the guardian to include a property of the ward, any interested person may file a petition before the court compelling the guardian to include such additional property into the inventory.

Sec. 8. When guardian's accounts presented for settlement. - Expenses and compensation allowed. Upon the expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. In the settlement of the account, the guardian, other than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of the ward.

The guardian as trustee of the ward’s property, is required to render an account thereof so long as the property remains in his possession unaccounted for, and he is not entitle to a credit for expenditures until he has filed an account showing its terms.



Account submitted to the court must be under oath. If the accounts fail to state sufficient facts to make a clear showing, a motion for a more specific statement is the appropriate remedy.

An order directing the imprisonment of a person for failure to render his account as a guardian and to deliver the property of the estate to his successor is legal.

A guardian is entitled to compensation for his services but o entitle him to compensation for services, they must be such as he has authority to render.

The guardian is not entitled to compensation on failure to file accounts where the statute expressly so provides, and in the absence of such provision, the guardian will forfeit his compensations if his neglect is injurious to the interest of the ward.

Rule 96 limits the compensation that may be allowed to a guardian to not more than 15% of the net income of the ward, obviously because it is not fair to consider and place the compensation of an executor or administrator and that of a guardian on the same footing, for the reason that, as a rule, the work to be performed by the former is much heavier.

RULE 97

TERMINATION OF GUARDIANSHIP Sec. 1. Petition that competency of ward be adjudged, and proceedings thereupon. - A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person, so declared incompetent, and to the ward. On the trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease.

The person previously declared incompetent by the court, his guardian, relative or friend, may file the petition to have his present competency judicially determined.

Grounds for the termination of guardianship; Death of the guardian or ward; Marriage or voluntary emancipation; Adjudgment of competency

The proceeding followed by virtue of a petition for restoration to capacity is not new or independent, it is a continuation of the original guardianship proceeding.

If the court had jurisdiction to appoint a guardian of the person or property of the incompetent party, it is obvious that it had also jurisdiction to try and grant the petition for restoration.

Petition shall be verified, and shall state that such person is then competent. Notice required in this section is not intended as a personal service process in the sense necessary

to give the court jurisdiction over the ward. Opposition may filed by the guardian or any other person.

Sec. 2. When guardian removed or allowed to resign; New appointment. - When a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, of failed for thirty (30) days after it is due to render an account or make a return, the court may, upon reasonable notice to the guardian, remove him, and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. A guardian may resign when it appears proper to allow the same; and upon his resignation or removal the court may appoint another in his place.

The guardian may file a petition before the guardianship court for permission to resign his trust, stating the grounds therefor, and accompanied by a report of the state of his account and an offer



to settle the account and deliver the estate over to the court. In his stead, the court shall appoint another guardian.

Partial removal of guardianship is allowed.

An order removing a guardian is an order constituting a final determination of his rights and consequently said guardian may appeal therefrom.

Sec. 3. Other termination of guardianship. - The marriage or voluntary emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. The guardian of any person may be discharged by the court when it appears, upon the application of the ward or otherwise, that the guardianship is no longer necessary.

Sec. 4. Record to be kept by the justice of the peace or municipal judge. - 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 court of first instance.

Voluntary emancipation under the amendments is no longer recognized as a ground for the termination of parental authority or guardianship.

Sec. 5. 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.

RULE 98

TRUSTEES Sec. 1. Where trustee appointed. - A trustee necessary to carry into effect the provisions of a will or written instrument shall be appointed by the Court of First Instance in which the will was allowed if it be a will allowed in the Philippines, otherwise by the Court of First Instance of the province in which the property, or some portion thereof, affected by the trust is situated.

The executor or administrator, or the person named as trustee under the will shall file the petition for the appointment of a trustee.

Sec. 2. Appointment and powers of trustee under will; Executor of former trustee need not administer trust. - If a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will, the proper Court of First Instance may, after notice to all persons interested, appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. No person succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust.

The court may exercise its discretion in appointing a trustee where a trust is actually created in the will providing that certain of the property shall be kept together undisposed during a fixed period and for stated purpose.

Notice and consent of beneficiary are not essential for the creation of a valid trust. In voluntary trust, assent of the beneficiary is presumed.

Trust may be created through an inoperative will provided that parties have intended such declaration of trust.

Sec. 3. Appointment and powers of new trustee under written instrument. - When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy, the proper Court of First Instance may, after due notice to all persons interested, appoint a new trustee to act alone or jointly with the others, as the case may be. Such new trustee shall have and exercise the 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; and the court may order such conveyance to be made by the former trustee or his representatives, or by the 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.

A trust will never fail for want of a trustee because the court can always appoint one except where the trust is purely personal in the sense that the trustor has excluded its administration by any person other than the trustee he designates.

The new trustee shall have the same powers as that exercised by the old one. The court will consider all the circumstances but is not bound to follow the wishes of parties interested in appointing a trustee.

Sec. 4. Proceedings where trustee appointed abroad. - When land in the Philippines is held in trust for persons resident here by a trustee who derives his authority from without the Philippines, such trustee shall, on petition filed in the Court of First Instance of province where the land is situated, and after due notice to all persons interested, be ordered to apply to the court for appointment as trustee; and upon his neglect or refusal to comply with such order, the court shall declare such trust vacant, and shall appoint a new trustee in whom the trust estate shall vest in like manner as if he had been originally appointed by such court.

The powers of a trustee appointed by a Philippine court cannot extend beyond the jurisdiction of the RP under whose courts he was appointed. This is based on sovereign equality of states.

Sec. 5. Trustee must file bond. Before entering on the duties of his trust, a trustee shall file with the clerk of the court having jurisdiction of the trust a bond in the amount fixed by the judge of said court, payable to the Government of the Philippines and sufficient and available for the protection of any party in interest, and a trustee who neglects to file such bond shall be considered to have declined or resigned the trust; but the court may until further order exempt a trustee under a will from giving a bond when the testator has directed or requested such exemption, and may so exempt any trustee when all persons beneficially interested in the trust, being of full age, request the exemption. Such exemption may be cancelled by the court at any time and the trustee required to forthwith file a bond.

A trustee appointed by the court is required to furnish a bond except when the testator has requested exemption from filing bond or when all persons beneficially interested in the trust, being of full age, request the exemption.

Failure of trustee to file a bond disqualifies him to be so but trust is not defeated thereby.

Sec. 6. Conditions included in bond. - The following conditions shall be deemed to be a part of the bond whether written therein or not:

(a) 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;

(b) That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed;

(c) That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order;

(d) 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.

But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly.

Duties of a trustee are governed by the intention of the trustor or parties if established by contracts while those of executor or administrator are limited by law.

Trustee shall make and return to court a true inventory of all the real and personal estate belonging to him as trustee which has come to his knowledge or possession. This may be dispensed with if the trustee is appointed as a successor to a prior trustee.



Faithful discharge of trust:1. Collect, take possession of and keep in his custody the trust property and assets, income and

increments of estate2. Hold, manage and apply the same to effect the purpose of the trust3. Make payments and distribution to beneficiaries in accordance with the terms of the trust;4. Act with reasonable diligence5. Unnecessary delay in securing possession of the trust property is at his personal risk6. Enforce and collect choses in action, debts and demands belonging to the estate

Cestui que trust is entitled to a complete accounting from the trustee. Trustee is not liable to repay trust funds at all hazards and where such funds are taken from the

bank, he is relieved therefrom. The possession by the trustee is not an adverse possession, but only possession in the name and in

behalf of the owner and cannot be the ground of prescription except when the has repudiated the trust, being open clear and unequivocal and known to the cestui que trust, or claim any right to the property entrusted.

Prescription in favor of the heirs of the trustee should be computed from the date of the trustee’s death.

Violation of duty by a trustee, willfully or negligently is a breach of trust.

Sec. 7. Appraisal; Compensation of trustee. - When an inventory is required to be returned by a trustee, the estate and effects belonging to the 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.

Compensation: at discretion of the court. Reimbursement of trustee, from the trust estate, for the following expenses:

All necessary and reasonable expenditures- payments with express authority, those incurred in carryiong out the directions, and in protecting and preserving the trust property, in rendering and in proving his accounts for costs and counsel fees.

Sec. 8. Removal or resignation of trustee. - The proper Court of First Instance may, upon petition of the parties beneficially interested and after due notice to the trustee and hearing, remove a trustee if such removal appears essential in the interests of the petitioners . The court may also, after due notice to all persons interested, remove a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. 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.

Removal of a trustee:

1. A trustee whose acts or omissions show want of reasonable fidelity

2. If such removal appears essential in the interests of the petitioners;

3. Insane or incapable of discharging the trust or evidently unsuitable

4. Misapplication of trust estate

How: petition for removal and appointment of new one by the beneficiary, not an action to recover real property.

Resignation by the trustee is allowed.

Sec. 9. Proceedings for sale or encumbrance of trust estate. - When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction of the trust may, on petition and after due notice and hearing, order such sale or encumbrance to be made, and the reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust. The 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.



Trustees have no power to change the character of the property unless it is of a perishable or transitory nature and then only to convert it into substantial, enduring and revenue-producing investment, but permission of the court should first be obtained.

The duty of a trustee in respect of bidding at a sale of trust property is to the trust and no bidders at the sale.

RULE 99

ADOPTION AND CUSTODY OF MINORS Sec. 1. Venue. - A person desiring to adopt another or have the custody of a minor shall present his petition to the Court of First Instance of the province, or the municipal or justice of the peace court of the city or municipality in which he resides.

In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court.

Sec. 2. Contents of petition. - The petition for adoption shall contain the same allegations required in a petition for guardianship, to wit:


(b) The qualifications of the adopter;

(c) That the adopter is not disqualified by law;

(d) The name, age, and residence of the person to be adopted and of his relatives or of the persons who have him under their care;

(e) The probable value and character of the estate of the person to be adopted.

Sec. 3. Consent to adoption. - There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such person; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required.

If the person to be adopted is of age, only his or her consent and that of the spouse, if any, shall be required.

Sec. 4. Order for hearing. - If the petition and consent filed are 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 not be more than six (6) 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 three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best.

Sec. 5. Hearing and judgment. - Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed, that the allegations of the petition are true, and that it is a proper case for adoption and the petitioner or petitioners are able to bring up and educate the child properly, the court shall adjudge that thenceforth the child is freed from all legal obligations of obedience and maintenance with respect to its natural parents, except the mother when the child is adopted by her husband, and is, to all legal intents and purposes, the child of the petitioner or petitioners, and that its surname is changed to that of the petitioner or petitioners. The adopted person or child shall thereupon become the legal heir of his parents by adoption and shall also remain the legal heir of his natural parents. In case of the death of the adopted person or child, his parents and relatives by nature, and not by adoption, shall be his legal heirs.chanrobles virtua law library Notsoheavenly notes ***


Sec. 6. Proceedings as to child whose parents are separated; Appeal. - When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court, upon hearing the testimony as may be pertinent, shall award the care, custody, and control of each such child as will be for its best interest, permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such hearing, it appears that both parents are improper persons to have the care, custody, and control of the child, the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society. The court may in conformity with the provisions of the Civil Code order either or both parents to support or help support said child, irrespective of who may be its custodian, and may make any order that is just and reasonable permitting the parent who is deprived of its care and custody to visit the child or have temporary custody thereof. Either parent may appeal from an order made in accordance with the provisions of this section. No child under seven years of age shall be separated from its mother, unless the court finds there are compelling reasons therefor.

The rule contemplates of these:

1. When husband and wife are divorced or living separately and apart from each other;2. The question as to care, custody and control of a child or children of their marriage is brought

before RTC by petition or as an incident to any proceeding.

Procedure on custody of minors:

Rule on Provisional Orders in petitions for declaration of absolute nullity of void marriage or for annulment of marriage or legal separation.

Sec. 7. Proceedings as to vagrant or abused child. - When the parents of any minor child are dead, or by reason of long absence or legal or physical disability have abandoned it, or cannot support it through vagrancy, negligence, or misconduct, or neglect or refuse to support it, or treat it with excessive harshness or give it corrupting orders, counsels, or examples, or cause or allow it to engage in begging, or to commit offenses against the law, the proper Court of First Instance, upon petition filed by some reputable resident of the province setting forth the facts, may issue an order requiring such parents to show cause, or, if the parents are dead or cannot be found, requiring the fiscal of the province to show cause, at a time and place fixed in the order, why the child should not be taken from its parents, if living; and 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, the court may make an order taking it from its parents, if living; and committing it to any suitable orphan asylum, children's home, or benevolent society or person to be ultimately placed, by adoption or otherwise, in a home found for it by such asylum, children's home, society or person.

Sec. 8. Service of judgment. - Final orders or judgments under this rule shall be served by the clerk upon the civil registrar of the city or municipality wherein the court issuing the same is situated.

This rule is repealed by AM No. 02-6-02

Adoption:

In rem proceeding Creates relationship between 2 persons similar to that which results from legitimate paternity and

filiation

Fact of adoption is never presumed, but must be affirmatively proved by person claiming its existence

Not an adversarial proceeding



No court may entertain unless it has jurisdiction not only over the subject matter of the case and over the parties, but also over the res which is the personal status of the parties.

In construction of adoption statutes, the best interest of the child is the paramount consideration.

The absence of proof of such order of adoption by the court, as provided by the statute cannot be substituted by parole evidence hat a child has lived with a person not his parent and has been treated as a child to establish such adoption.

State Principle: best interest of the adoptee.

If the petition includes a prayer for change of name, notice to Sol Gen is mandatory.

Social worker has the duty to conduct child and home study reports on the adoptee and the adopter.

Supervised trial custody: maybe reduced by the courts.

GR: Joint adoption by husband and wife, except:

If one spouse seeks to adopt the legitimate child of one spouse by the other spouse;

If one spouse seeks to adopt his own illegitimate childe provided that the other spouse has signified his consent thereto;

If the spouses are legally separated from each other;

Consent of the following required to the adoption :

The adoptee, if 10 years of age or over;

The biological parents of the child, if known, or the legal guardian, or the proper government instrumentality which has the legal custody of the child;

The legitimate and adopted sons/daughters, 10 years of age or over, of the adopter and adoptee, if any;

The illegitimate sons/daughters, 10 years or older, of the adopter if living with said adopter and the latter’s spouse, if any

The spouse if any, of the person adopting or to be adopted.

Parental consent required by law in adoption refers to parents who have not abandoned their child.

The requirement of written consent can be dispensed with if the parent has abandoned the child or that such parent is insane or hopelessly intemperate.

The issue of abandonment by the oppositor natural parent is a preliminary issue that an adoption court must first confront.

Act of abandonment imports any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child.

The residence of the petitioner is a jurisdictional fact which confers jurisdiction on the court before which the petition was filed.

The name of the person to be adopted is that appearing in the civil registry and the court does not acquire jurisdiction if a different name is carried in the notice of publication.

A mere clerical error is not sufficient to oust the court of its jurisdiction.

The purpose of the publication requirement is to give notice so that those who gave any objection to the adoption can make their objection known.



Present rules on adoption allow the petition to include an application for change of name.

Whether the petition contains an application for change of name and in case the petition also prays for change of name, the title or caption must contain:

Registered name of the child;

Aliases or other names by which the child has been known

The full name by which the child is to be known.

INTER COUNTRY ADOPTION

RULE 100

RESCISSION AND REVOCATION OF ADOPTION Sec. 1. Who may file petition; grounds. - A minor or other incapacitated person may, through a guardian or guardian ad litem, petition for the rescission or revocation of his or her adoption for the same causes that authorize the deprivation of parental authority.

The adopter may, likewise, petition the court for the rescission or revocation of the adoption in any of these cases:

(a) If the adopted person has attempted against the life of the adopter;

(b) When the adopted minor has abandoned the home of the adopter for more than three (3) years;

(c) When by other acts the adopted person has repudiated the adoption.

Sec. 2. Order to answer. - The court in which the petition is filed shall issue an order requiring the adverse party to answer the petition within fifteen (15) days from receipt of a copy thereof. The order and a copy of the petition shall be served on the adverse party in such manner as the court may direct.

Sec. 3. Judgment. - If upon trial, on the day set therefor, the court finds that the allegations of the petition are true, it shall render judgment ordering the rescission or revocation of the adoption, with or without costs, as justice requires.chanrobles virtua law library

Sec. 4. Service of judgment. - A certified copy of the judgment rendered in accordance with the next preceding section shall be served upon the civil registrar concerned, within thirty (30) days from rendition thereof, who shall forthwith enter the action taken by the court in the register.

Sec. 5. Time within which to file petition. - A minor or other incapacitated person must file the petition for rescission or revocation of adoption within the five (5) years following his majority, or if he was incompetent at the time of the adoption, within the years following the recovery from such incompetency.

The adopter must also file the petition to set aside the adoption within five (5) years from the time the cause or causes giving rise to the rescission or revocation of the same took place.

The court does not have jurisdiction to annul after the period fixed a decree of adoption. A subsequent agreement between the adopting party and the natural parents cannot by itself

revoke the adoption.

A challenge to the validity of the adoption cannot be made collaterally, in an action for partition, but in direct proceedings frontally addressing the issue.



The petition for rescission shall be verified and filed by the adoptee who is over 18 years of age, or with the assistance of the department, if he is a minor, or if he is over 18 years but is incapacitated, by his guardian or counsel.

The adoption may be rescinded based on any of the following grounds committed by the adopter:

Repeated physical and verbal maltreatment by the adopter despite having undergone counseling;

Attempt on the life of the adoptee;

Sexual assault or violence; or

Abandonment or failure to comply with parental obligations.

The adoptee if incapacitate, must file the petition for rescission or revocation of adoption within 5 years after he reaches the age of majority or if he was incompetent at the time of the adoption, within 5 years after recovery from such incompetency.

The petition shall be filed with the Family court of the city or province where the adoptee resides.

Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child.

The adopted shall likewise lose the right to use the surname of the adopters and shall resume his surname prior to the adoption.

The courts shall order the amendment of the records in the civil register.

If the adopted is still a minor, the court shall reinstate the parental authority of the parents by nature unless the latter are disqualified or incapacitate, in which case, the court shall appoint a guardian over the person and property of the minor in the same proceedings.

If the adopted is physically or mentally handicapped , the court shall also appoint a guardian over his person or property or both in the same proceedings.

RULE 101

PROCEEDINGS FOR HOSPITALIZATIONOF INSANE PERSONS

Sec. 1. Venue; Petition for commitment. - A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Court of First Instance of the province where the person alleged to be insane is found. The petition shall be filed by the Director of Health in the all cases where, in his opinion, such commitment is for the public welfare, or for the welfare of said person who, in his judgment, is insane, and such person or the one having charged of him is opposed to his being taken to a hospital or other place for the insane.

This is applicable only when the hospitalization of the insane person is for the public welfare or for the welfare of said person provided that the one who has charge of him is opposed to such confinement.

Insanity denotes condition of mind which is so impaired in function or so deranged as to induce a deviation from normal conduct in the person so afflicted; unsound, deranged, delirious or distracted mind.

Sec. 2. Order for hearing. - 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 for the hearing thereof, and copy of such order shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. The court shall furthermore order the sheriff to produce the alleged insane person, if possible, on the date of the hearing.

Insane person has right to notice and hearing would render the proceedings void or at least a good ground for vacating the order of commitment.



Sec. 3. Hearing and judgment. - 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 Director of Health. The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed.

The one who alleges insanity has the burden of proof.

Sec. 4. Discharge of insane. - When, in the opinion of the Director of Health, the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured, or may be released without danger he may file the proper petition with the Court of First Instance which ordered the commitment.

Proceedings for restoration of capacity should be in the court in which proceedings were had resulting in the adjudication of incompetency; not a new proceedings but as a continuance of the original guardianship proceedings.

Director of Health cannot order release of the judicially-committed insane without the approval of the RTC. And RTC cannot order release without the recommendation of the Director of Health.

Sec. 5. Assistance of fiscal in the proceeding. - It shall be the duty of the provincial fiscal or in the City of Manila the fiscal of the city, to prepare the petition for the Director of Health and represent him in court in all proceedings arising under the provisions of this rule.

RULE 102

HABEAS CORPUS Sec. 1. To what habeas corpus extends. - 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.

Purpose of the writ: to relieve a person from unlawful restraint; to set the individual at liberty; to obtain immediate relief from illegal confinement; to liberate those imprisoned without sufficient cause; to deliver them from unlawful custody; to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a

person therefrom if such restraint is illegal;

Not proper in: Enforcement of right to service; Determination whether a person has committed a crime; Determination of disputed interstate boundary; To punish respondent; To afford the injured person redress for illegal detention; To recover damages or other money award For asserting or vindicating denial of right to bail; For correcting errors in appreciation of facts/appreciation of law

Nature: In rem Separate and distinct from the main case because this only deals with the detention of the prisoner

It is only in a case where the court does not have jurisdiction of the subject matter of the offense that a writ of habeas corpus should be granted.

The writ deals only with such radical defects as render the proceeding or judgment absolutely voide, and cannot have the effect of an appeal.

A release that renders a petition for a writ of habeas corpus moot and academic must be one which is free from involuntary or unnecessary restraints.



GR: Release whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic.

Exception: There are restraints attached to his release which precludes freedom of action where the court can inquire into the nature of his involuntary restraint.

The fact that no physical force has been exerted to keep her in the house of the respondent does not make less real the deprivation of her personal freedom of movement, freedom to transfer from one place to another, or to choose one’s residence

Freedom may be lost due to external moral compulsion, to be founded on groundless fear, to erroneous belief in the existence of the will.

It is not physical restraint alone which is inquired into by the writ of habeas corpus. Reservation of the power to re-arrest is repugnant to government of laws where a person acquitted

on a criminal charge can no longer be detained or re-arrested fro the same offense. Where constitutional rights are disregarded, it results in the absence of jurisdiction and invalidates

the trial and consequent conviction of the accused. Habeas corpus is a collateral attack on a void judgment. Failure to perfect appeal does not preclude recourse to the writ. Excessive sentence or penalty may be corrected by the writ. The writ is the proper legal remedy to enable parents to regain custody of minors even if the latter

was in custody of third person of her own free will. In habeas corpus proceedings, the question of identity is relevant and material, subject to the usual

presumptions including those as to the identity of the person. Questions as to who shall have the custody of the child can be sufficiently resolved in the petition

for writ of habeas corpus without the necessity of filing a separate action under Rule 99. Requisites for issuance; concurrence of the following:1. Petitioner has the right to the custody of the minor;2. The rightful custody of the minor is being withheld from the petitioner by the respondent3. It is to the best interest of the minor concerned to be in the custody of the petitioner and not that of

the respondent.

Writs of habeas corpus and certiorari may be ancilliary to each other where necessary to give effect to the supervisory powers of the higher courts, for purposes of review.

The inquiry in a writ of habeas corpus is addressed, not to errors committed by a court within its jurisdiction but to the question of whether the proceeding or judgment under which the person has been restrained is a complete nullity.

Errors of judgment (errors of fact or law) cannot be corrected through the remedy of habeas corpus except when such error affects the jurisdiction or one that would make the judgment void.

Writ of HC- not a writ of error. HC does not lie where appeal or certiorari is available because it will not be permitted to perform

the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and subject matter.

It has to be an exceptional case requiring immediate action for the writ to be available to an accused before trial, otherwise, the court will not grant the writ and discharge the prisoner in advance of a determination of his case in court.

This is proper in reviewing proceedings for deportation of aliens.

Sec. 2. Who may grant the writ. - The writ of habeas corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or 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, and may be made returnable before the court or any member thereof, or before the Court of First Instance, or any judge thereof for the hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district.

SC, CA, RTC has concurrent original jurisdiction to issue the writ. In the absence of RTC Judges, MTCC Judges may decide the same.

Issuance of the writ in relation to custody of minors is under the jurisdiction of the family courts, and in the absence of the judge thereof, the same will be referred to regular courts.

CA has jurisdiction to issue writs in custody of minors but is returnable to a family court where the petitioner resides or where the minor may be found for hearing and decision on the merits.

Sec. 3. Requisites of application therefor. - Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or 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 or restrained; or, 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.

Requisites:

1. The person in whose behalf the application is made is imprisoned or restrained of his liberty;2. The name of the person detaining another;

3. The place where he is imprisoned or restrained of his liberty;

4. The cause of his detention.

Common law wife has the personality of institute on behalf of her common law husband.

The writ of habeas corpus ought not to issue if the restraint is voluntary because unnecessary.

Sec. 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or 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, the writ shall not be allowed; or 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.

What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application for a writ of habeas corpus, for even if the detention is at its inception illegal, it may by reason of some supervening events such as the issuance of a judicial process be no longer illegal at the time of the filing of the application.

A petition for the writ will not prosper because his detention has become legal by virtue of the filing before the court of the complaint against him and by the issuance of the order denying the accused’s MTD and granting the prosecution’s hold departure order.

Filing of information or complaint bars the availability of the writ.

Improper arrest or lack of preliminary investigation is not a valid ground for issuance of writ; motion for reinvestigation or motion to quash warrant is the remedy and then ask for preliminary investigation. Absence of the latter will not affect the jurisdiction of the court.

Habeas corpus proceedings are not meant to determine criminal responsibility.

A writ of habeas corpus will not be granted where relief may be had or could have been procured by resort to another general remedy, such as appeal or writ of error.

When an alien is detained by the BI for deportation pursuant to an order of deportation by the board, CFI have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it.

Where the petitioner is held upon a judicial order, the writ will lie where the order is void because the court issuing it had not jurisdiction over the crime charged, or of the person of the accused where the latter had challenged on time the jurisdiction over his person.

Person discharged on bail is not entitled to the writ.



Sec. 5. When the writ must be granted and issued. - A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it.

Petitioner’s temporary release does not render petition fro writ moot and academic if there are still involuntary restraints.

Sec. 6. To whom writ directed, and what to require. - 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 to take and 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, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint.

Sec. 7. How prisoner designated and writ served. - The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in his custody, then the service shalpl be made on any other person having or exercising such custody.

Sec. 8. How writ executed and returned. - The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, 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 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.

Sec. 9. Defect of form. - 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.

Peremptory writ: commanding the respondent to have the body of the detained person before the court at a time and place specified.

Preliminary citation: requiring the respondent to appear and show cause why the peremptory writ should not be granted.

Sec. 10. Contents of return. - When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and 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:

(a) Whether he has or has not the party in his custody or power, or under restraint;

(b) If he has the party in his custody or 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 or 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.



Sec. 11. Return to be signed and sworn to. - The return or statement shall be signed by the person who makes it; and shall also be sworn to by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity.

Sec. 12. Hearing on return; Adjournments. - When the writ is returned 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 authorized to commit by law.

Sec. 13. When the return evidence, and when only a plea. - 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.

Failure of the petitioners to file a reply to the return of the writ warrants the dismissal of the petition.

Burden of proving release is on respondent.

Where however there are grounds for grave doubts about the alleged release of the detainees, where the standard and prescribed procedure in affecting the release has not been followed, then the burden of proving by clear and convincing evidence the alleged release is shifted to the respondents.

Release is an affirmative defense and each party must prove his own affirmative allegations.

Sec. 14. When person lawfully imprisoned recommitted, and when let to bail. - 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. 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. 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.

Habeas corpus would not lie after the warrant of commitment is issued by the court on the basis of the information filed against the accused.

Sec. 15. When prisoner discharged if no appeal. - When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released.

Appeals in Habeas Corpus Cases: 48 hours from the notice of judgment appealed from. The date on which the decision was promulgated and/or served is not counted and the period starts

to run the following day unless the same be a Sunday or legal holiday in which case the period of appeal is to be considered from the succeeding day.

Notice of appeal is required to be filed with the clerk of court or judge who rendered the judgment.

Appeals from RTC shall be taken to CA where it involves factual questions and directly to SC on pure questions of law.



Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. - A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt.

Sec. 17. Person discharged not to be again imprisoned. - 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; and 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, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting writ as for contempt.

State without power to reserve re-arrest.

Sec. 18. When prisoner may be removed from one custody to another. - 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; and 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.

Sec. 19. Record of writ, fees and 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.

RULE 103

CHANGE OF NAME Sec. 1. Venue. - A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court.

o Read in accordance with RA 9048 on administrative correction of names for clerical or typographical errors and change of first name or nickname.

o Such petition may be filed in person with the local civil registrar of the place where the interested party is presently residing or domiciled.

o Filipino citizens residing or domiciled abroad may file the petition with the nearest consulates. o This may be availed of only once. o Articles 364 to 380 regulates the use of names.

Nature of proceedings for change of name: In rem To establish the status of a person involving his relation with others Publication is a jurisdictional requirement Only the true or official name recorded in the civil register Art. 376 and Rule 103 involve substantial changes Art. 412 and Rule 108 do not involve substantial changes



Philippine citizenship is not necessary, it is enough that the petition be verified, signed by the petitioner or some other person in his behalf and set forth:

That the petitioner has been a bona fide resident of the province where the petition is filed for at least three years to the date of filing;

The cause for which the change of name is sought The name asked for.

Change of name is not a matter of right but of judicial discretion. Aliens may be allowed to file the same but only alien domiciled in the Philippines may apply for change of name in the courts thereof. Petition for Change of Name: prays for correction of names and/or make the necessary corrections in the respective birth certificatesJudicial authority is needed in change of name, but not in continued use of surname.

Sec. 2. Contents of petition. - A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

No age requirement. Verification by the person asking for the change, or somebody in his behalf, is mandatory but only a

formal requisite, not jurisdictional.

Noncompliance with it does not necessarily render the pleading defective. Even the lack of verification is not a ground for dismissing the petition.

Jurisdictional requirements:1. Publication for 3 successive weeks in some newspaper of general circulation in the province2. Both title or caption of the petition and its body shall recite:

The name or names or aliases of the applicant; The cause for which the change of name is sought The new name asked for.

All names and aliases must appear in the title or caption of the petition, otherwise, such omission is fatal to the petition.

This privilege is granted only upon showing of a proper or reasonable cause or compelling reasons therefor.

Some valid grounds are: When the name is ridiculous, dishonorable or extremely difficult to write or pronounce; When the change results as a legal consequence, as in legitimation When the change will avoid confusion Having continuously used and been known since childhood by a Filipino name, unaware of her alien

parentage A sincere desire to adopt a Filipino name to erase signs of fore alienage, all in good faith. Name in civil register is the official name, not the one in the church records. Use of aliases is prohibited without court authorization.

Sec. 3. Order for hearing. - 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 shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

Purpose of publication: to apprise the public of the pendency of the petition so that those who may know of any legal objection to it might come forward with the information in order to determine the fitness of the petitioner for Philippine citizenship.



Jurisdiction to hear and determine the petition for change of name is acquired after due publication of the order containing the name sought to be adopted which should be indicated in the title of the petition.

For the publication to be valid, the order should reproduce the data in the petition. Defect in the petition and the order, as to the spelling of the name of the petitioner, is substantial,

because it did not correctly identify the party to said proceedings. Noncompliance of the publication requirement renders the entire proceeding in the court to be null

and void. Failure to include the name sought to be adopted in the title of the petition nor in the title of the

caption of the notices published in the newspapers renders the trial court without jurisdiction to hear and determine the petition.

The non-inclusion of all the name or aliases of the applicant in the caption of the order or in the title of the petition defeats the very purpose of the required publication.

Sec. 4. Hearing. - Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

Sec. 5. Judgment. - Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition.

Petition must be supported by weighty reasons. The general rule is that a change of name should not be permitted if it will give a false impression

of family relationship to another where none actually exists.

Legitimate children cannot adopt the surname of a person not their father, for to allow them to adopt the surname of their mother’s husband, who is not their father, can result in confusion of their paternity.

Some insufficient grounds for change of names:1. Separation of spouses2. No proof of prejudice by use of official name;3. Mere use and known by different name;4. No proof that true name evokes derisive laughter It is the policy of the court to deny the application in the absence of clear proof that the change is

really necessary and will not in any way serve any unlawful purpose.

Sec. 6. Service of judgment. - 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.

RULE 104

VOLUNTARY DISSOLUTION OF CORPORATIONS Sec. 1. Where, by whom and on what showing application made. - A petition for dissolution of a corporation shall be filed in the Court of First Instance of the province where the principal office of a corporation is situated. The petition shall be signed by a majority of its board of directors or other officers having the management of its affairs, verified by its president or secretary or one of its directors, and shall set forth all claims and demands against it, and that its dissolution was resolved upon by a majority of the members, or, if a stock corporation, by the affirmative vote of the stockholders holding and representing two-thirds of all shares of stock issued or subscribed, at a meeting of its members or stockholders called for that purpose.

Sec. 2. Order thereupon for filing objections. - If the petition is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date on or before which objections thereto may be filed by any person, which date shall not be less than thirty (30) nor more than sixty (60) days after the entry of the order. Before such date a copy of the order shall be published at least once a week for four (4) successive weeks in some newspaper of general circulation published in the municipality or city where the principal office of the corporation is situated, or, if there be no such newspaper, then in some



newspaper of general circulation in the Philippines, and a similar copy shall be posted for four (4) weeks in three public places in such municipality or city.

Sec. 3. Hearing, dissolution, and disposition of assets; Receiver. - Upon five (5) days' notice given after the date on which the right to file objections as fixed in the order expired, the court shall proceed to hear the petition and try any issue made by objections filed; and if no such objection is sufficient, and the material allegations of the petition are true, it shall render judgment dissolving the corporation and directing such disposition of its assets as justice requires, and may appoint a receiver to collect such assets and pay the debts of the corporation.

Sec. 4. What shall constitute record. - The petition, orders, proof of publication and posting, objections filed, declaration of dissolution, and any evidence taken, shall constitute the record in the case.

RULE 105

JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN Sec. 1. Venue. - Where judicial approval of a voluntary recognition of a minor natural child is required, such child or his parents shall obtain the same by filing a petition to that effect with the Court of First Instance of the province in which the child resides. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

Voluntary recognition- admission of the fact of paternity or maternity by the presumed parent, expressed in the form prescribed by the Civil Code.

It is provided in Art. 278 of CC that it shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing.

The action shall be brought within the time in Art. 173: The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

Exception: Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

An action based on voluntary acknowledgement may be brought after the death of the father.

Sec. 2. Contents of petition. - The petition for judicial approval of a voluntary recognition of a minor natural child shall contain the following allegations:


(b) The names and residences of the parents who acknowledged the child, or of either of them, and their compulsory heirs, and the person or persons with whom the child lives;

(c) The fact that the recognition made by the parent or parents took place in a statement before a court of record or in an authentic writing, copy of the statement or writing being attached to the petition.

Judicial approval is needed if the recognition of the minor is effected, not through a record of birth or in a will but through a statement in a court of record or an authentic document.

Sec. 3. Order for hearing. - Upon the filing of the petition, the court, by an order reciting the purpose of the same, shall fix the date and place for the hearing thereof, which date shall not be more than six (6) months after the entry of the order, and shall, moreover, cause a copy of the order to be served personally or by mail upon the interested parties, and published once a week for three (3) consecutive weeks, in a newspaper or newspapers of general circulation in the province.



Sec. 4. Opposition. - Any interested party must, within fifteen (15) days from service, or from the last date of publication, of the order referred to in the next preceding section, file his opposition to the petition, stating the grounds or reasons therefor.

Sec. 5. Judgment. - If, from the evidence presented during the hearing, the court is satisfied that the recognition of the minor natural child was willingly and voluntarily made by the parent or parents concerned, and that the recognition is for the best interest of the child, it shall render judgment granting judicial approval of such recognition.

Ways of recognition:

Voluntary, made in:

Records of birth,

By will and by any other public instrument.

Involuntary, enforced by either civil or criminal action, or made in :

By an incontrovertible paper written by the parent expressly recognizing his paternity;

By giving such child the status of a natural child of the father, justified by direct act of the child of the father or his family;

By a criminal action for rape, seduction or abduction.

The putative parent should thus be given the opportunity to affirm or deny the child’s filiation, and this, he or she cannot do if he or she is already dead.

Consent required of persons of age who has been voluntarily recognized may be given expressly or implicitly.

For minors, judicial approval is needed to protect her from prejudice. Lack or insufficiency of judicial approval is not a defect available to the recognizing parent but one which the minor may raise or waive.

Sec. 6. Service of judgment upon civil registrar. - A copy of the judgment rendered in accordance with the preceding section shall be served upon the civil registrar whose duty it shall be to enter the same in the register.

RULE 106

CONSTITUTION OF FAMILY HOME Sec. 1. Who may constitute. - The head of a family owning a house and the land on which it is situated may constitute the same into a family home by filing a verified petition to that effect with the Court of First Instance of the province or city were the property is located. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

When there is danger that a person obliged to give support may lose his or her fortune because of grave mismanagement or on account of riotous living, his or her spouse, if any, and a majority of those entitled to be supported by him or by her may petition the Court of First Instance for the creation of the family home.

Sec. 2. Contents of petition. The petition shall contain the following particulars:

(a) Description of the property;

(b) An estimate of its actual value;

(c) A statement that the petitioner is actually residing in the premises;



(d) The encumbrances thereon;

(e) The names and addresses of all the creditors of petitioner or head of the family and of all mortgagees and other persons who have an interest in the property;

(f) The names of all the beneficiaries of the family home.

Sec. 3. Notice and publication. - The court shall notify the creditors, mortgagees and all other persons who have an interest in the estate, of the filing of the petition, causing copies thereof to be served upon them, and published once a week for three (3) consecutive weeks in a newspaper of general circulation. The petition shall, moreover, be caused to be posted in a conspicuous place in the parcel of land mentioned therein, and also in a conspicuous place of the municipal building of the municipality or city in which the land is situated, for at least fourteen (14) days prior to the day of the hearing.

Sec. 4. Objection and date of hearing. - In the notice and publication required in the preceding section, the court shall require the interested parties to file their objection to the petition within a period of not less than thirty (30) days from receipt of notice or from the date of last publication, and shall fix the date and time of the hearing of the petition.

Sec. 5. Order. - After hearing, if the court finds that the actual value of the proposed family home does not exceed twenty thousand pesos, or thirty thousand pesos in chartered cities, and that no third person is prejudiced thereby, or that creditors have been given sufficient security for their credits, the petition shall be approved.

Sec. 6. Registration of order. - A certified copy of the order of the court approving the establishment of the family home shall be furnished the register of deeds who shall record the same in the registry of property.

Repealed by the FC: No need to file verified petition.

Relevant provisions of FC.

Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a)

Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a)

Deemed constituted as a family home upon effectivity of the FC on Aug.3, 1988 not Aug. 4 one year after its publication in the Manila Chronicle on Aug. 4, 1987.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family; and

(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. (226a)

Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a)



Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a)

Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a)

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a)

Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a)

Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home.

Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable.

This does not mean that Arts. 152 and 153 of the said code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the FC and are exempt from execution for the payment of obligations incurred before the effectivity of the FC.

RULE 107

ABSENTEES Sec. 1. Appointment of representative. - When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the Court of First Instance of the place where the absentee resided before his disappearance for



the appointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

Art. 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.

This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired.

Art. 382. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians.

Sec. 2. Declaration of absence; who may petition. - After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the following:

(a) The spouse present;

(b) The heirs instituted in a will, who may present an authentic copy of the same;

(c) The relatives who would succeed by the law of intestacy; and

(d) Those who have over the property of the absentee some right subordinated to the condition of his death.

Art. 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. (184) Art. 385. The following may ask for the declaration of absence: (1) The spouse present; (2) The heirs instituted in a will, who may present an authentic copy of the same; (3) The relatives who may succeed by the law of intestacy; (4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (185)

Petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife could be combined and adjudicated in the same proceedings.

Sec. 3. Contents of petition. - The petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or an administrator, must show the following: (a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy;

(c) The names and residences of creditors and others who may have any adverse interest over the property of the absentee;

(d) The probable value, location and character of the property belonging to the absentee.

Sec. 4. Time of hearing; notice and publication thereof. - When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof where all concerned may appear to contest the petition. Notsoheavenly notes ***


Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best.

Sec. 5. Opposition. - Anyone appearing to contest the petition shall state in writing his grounds therefor, and served a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing.

Sec. 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians.

In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette.

Art. 386. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation.

Sec. 7. Who may be appointed. - In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court.

In case of declaration of absence, the trustee or administrator of the absentee's property shall be appointed in accordance with the preceding paragraph.

Art. 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation.

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court.

Sec. 8. Termination of administration. - 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.

In these cases the trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of those who may have a right thereto.

Art. 389. The administration shall cease in any of the following cases: (1) When the absentee appears personally or by means of an agent; (2) When the death of the absentee is proved and his testate or intestate heirs appear; (3) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title.In these cases the administrator shall cease in the performance of his office, and the property shall be at the disposal of those who may have a right thereto.

Declaration of absence is unnecessary where there are no properties. No independent action or special proceeding for presumption of death.



Exception: As provided in the FC, for the purpose of contracting a second valid marriage, he or she must file a summary proceeding for the declaration of the presumptive death of the absentee without prejudice to the latter’s reappearance.

This is to prevent bigamy; good faith is then established. Absent spouse: missing spouse for at least 4 years, it being unknown whether or not he or she is

still alive, and the present spouse having a well-founded belief that the missing spouse is already dead.

4 years is reduced to 2 years if there was danger of death, to wit: The missing person was on board a vessel (all kinds of water/aircraft) lost during a sea voyage, or

an aeroplane which is missing; The missing person was in the armed forces and had taken part in war (military operations, armed

fighting, includes nurses, doctors, reporters); The missing person was in danger of death under other circumstances (earthquakes,

fires,landslides,etc). 2 years is computed from the occurrence of the event from which death is presumed.

Clarify the other periods like the 5-7-10 rule in succession?!?

SC ruled in several cases where due to circumstances a person was already considered as dead without waiting for the period to expire and be presumed dead.

RULE 108

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Sec. 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located.

Sec. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization (k) election, loss or recovery of citizenship (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

Sec. 3. Parties. - When cancellation or correction of an entry in the civil register is sought , the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

Sec. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

Sec. 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto.

Sec. 6. Expediting proceedings. - The court in which the proceeding 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.

Sec. 7. Order. - After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. 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.

RULE 109

APPEALS IN SPECIAL PROCEEDINGS Sec. 1. Orders or judgments from which appeals may be taken. - An interested person may appeal



in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment: (a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled;

(c) 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;

(d) Settles the account of an executor, administrator, trustee or guardian;

(e) 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

(f) 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.

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, in its discretion and upon such terms as it may deem proper and just, 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 of these rules.


Special Proceedings

Documents

Transcript of Special Proceedings