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SPECIAL PROCEEDINGS I. Introduction A. Definition of Terms: 1. Special proceeding - a remedy by which a party seeks to establish a status, a right, or a particular fact [Rule 1, Section 3 (c ! ". #robate - a special proceeding to establish the $alidity of a will 3. Reprobate - a special proceeding to establish the $alidity of a will pro$ed in a foreign country %. &egacy - a be'uest of personal property in a will (. )e$ise - a be'uest of real property in a will *. +estate estate - an estate of a deceased person which is settled or to be settled with the last will and testament of that deceased person ,. -ntestate estate - the estate of a deceased person without a will [+he estate is settled by the laws of intestacy pro$ided in the .i$il .ode.! /. 01ecutor - the person named in the will who is entrusted to implement its pro$isions [+he e1ecutor needs to be issued letters testamentary after the court determines his or her 'ualifications.! 2. 3dministrator - the person entrusted with the care, custody and management of the estate of a deceased person until the estate is partitioned and distributed to the heirs, legatees and de$isees, if any [+he court issues letters of administration to a person after s4he 'ualifies in the sound discretion of the court.! 15. 0scheat - the re$ersion of property to the State when the title thereto fails from defect of an heir 11. 6uardianship - a trust relation in which one person [guardian! acts for another [ward! whom the law regards as incapable of managing his own affairs 1". +rust - the legal relationship between one person ha$ing an e'uitable ownership in property and another person [cestui 'ue trust! owning the legal title to such property 13. +rustee - a person appointed by a court to carry out the pro$isions of a will, as pro$ided in Rule 2/. 1%. 7ideicommissary substitution - takes place where the testator designates a person as an heir charging him to deli$er to another the whole or part of the inheritance under circumstances pro$ided in 3rt. /*3 of the .i$il .ode 1(. 8abeas corpus - a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and recei$e whatsoe$er the court or 9udge awarding the writ shall consider in that behalf 1*. 3doption - a 9uridical act which creates between two persons a relationship similar to that which results from legitimate paternity and filiation 1,. 7amily home - the dwelling house where a husband and wife, or an unmarried head of a family resides, and the land on which it is situated, which is now deemed constituted from the time it is occupied as a family residence, and is e1empt from e1ecution, forced sale or attachment e1cept as pro$ided by law and to the e1tent of the $alue allowed by law :ote; Rule 15*, which pro$ides for the 9udicial constitution of a family home, is already e1tinct going by the 7amily .ode which does not re'uire a 9udicial constitution of the family home. 1/. 3bsentee - a person whose whereabouts and e1istence are not known in the sense of the law allowing a subse'uent marriage, and for purposes of administration of the estate of the absentee, and of succession 12. .i$il registry - the public record where acts, e$ents and 9udicial decrees concerning the ci$il status of persons are entered "5. <ultiple appeals - are appeals in special proceedings where a number of appeals may be taken separately or simultaneously by different parties for different purposes [3 record on appeal is necessary in order not to pre9udice the proceedings that will ha$e to continue and that may ha$e to stop or be suspended if the entire record of the proceedings is ele$ated.!


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B. Rules th t Go!ern S"eci l Proceedin#s 1. +he 122, Rules of .i$il #rocedure shall go$ern the procedure to be obser$ed in actions, ci$il or criminal, and special proceedings. ". -n the absence of special pro$isions, the rules pro$ided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. [Rule ,", Section "! C. S"eci l Proceedin#s Pro!ided in the Rules of Court $Rule %&' 1. Settlement of estate of deceased persons [Rules ,3 to 25!= ". 0scheat [Rule 21!= 3. 6uardianship and custody of children [Rules 2"-2,!= %. +rustees [Rule 2/= (. 3doption [Rule 22!= *. Rescission and re$ocation of adoption [Rule 155!= ,. 8ospitali>ation of insane persons [Rule 151!= /. 8abeas corpus [Rule 15"!= 2. .hange of name [Rule 153!= 15. ?oluntary dissolution of corporations [Rule 15%!= 11. @udicial appro$al of $oluntary recognition of minor natural children [Rule 15(!= 1". .onstitution of the family home [Rule 15*!= 13. )eclaration of absence and death [Rule 15,!= and 1%. .ancellation or correction of entries in the ci$il registry [Rule 15/!. SPECIAL PROCEEDING 1. Settlement of estate (EN)E )ecedentAs residence= if a :onresident, place where he had an estate . Person dies intest te le !in# no heir+ )ecedentAs residence= if a :on-resident, place where he had an estate ,. Re!ersion+ Chere the land lies in whole or in part c. )ncl imed B l nce+ Chere the dormant deposits are located 3. 3ppointment of 6uardians %. 3ppointment of +rustees Chere the minor or incompetent resides Chere the will was allowed or where the property or portion thereof affected by the trust is situated Chere the adopter resides Chere the adoptee resides if filed with 7amily .ourt Chere the adoptee resides Chere the detainee is detained (if filed with R+. *)RISDICTION <+.; gross $alue of estate does not e1ceed #355B or #%55B in <etro <anila R+.; if abo$e amounts e1ceeded R+.

". 0scheat

R+. R+.

7amily .ourt (<inors R+. (-ncompetents R+. 7amily .ourt 7amily .ourt or -nter-.ountry 3doption Doard 7amily .ourt S., .3, R+., <+. in the pro$ince where there is no

(. )omestic 3doption *. -nter-.ountry 3doption ,. Rescission of 3doption /. 8abeas .orpus


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8abeas .orpus in relation minor 2. .hange of name 15. 3ppointment representati$e absentee4declaration absence 11. .ancellation4.orrection entries in ci$il registries


of of of of

Chere the petitioner resides or where the minor may be found Chere petitioner resides Chere the absentee resided before his disappearance Chere the corresponding .i$il Registry is located

9udge= Sandiganbayan only in aid of its appellate 9urisdiction 7amily .ourt, .3 and S. R+. R+.


II. Settlement of Est te of Dece sed Persons A. In Gener l -. *urisdiction nd (enue 1.1 +he settlement of the estate of deceased persons shall be in the court of the place of residence of the deceased at the time of his death, whether he is a citi>en or an alien. 1." -f the deceased is an inhabitant of a foreign country, then the settlement shall be in the court of any place in which he had estate. :ote; Rule ,3, Section 1, Rules of .ourt which substantially contains the foregoing rules still remain unamended after the passage of Datas #ambansa Dilang 1"2 [D# 1"2!. Section 1 still speaks of E.ourt of 7irst -nstance,E instead of ERegional +rial .ourtE and Epro$inceE which in other parts of the Rules had been changed to Eplace.E Dut under D# 1"2, the 9urisdiction o$er settlement proceedings is not limited to Regional +rial .ourts but include <etropolitan +rial .ourts, <unicipal +rial .ourts, and <unicipal .ircuit +rial .ourts, where the $alue of the estate does not e1ceed #355,555 outside <etro <anila or in <etro <anila, #%55,555. 1.3 +he 9urisdiction of a probate court is determined by the place of residence of the deceased person or of the location of his estate, but the matter really constitutes $enue. [6arcia-7ule $s. .ourt of 3ppeals, :o. &-%5(5", :o$ember "2, 12,*! 1.% -mportant rule +he 9urisdiction 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, e1cept in an appeal from that court, in the original case, or when the want of 9urisdiction appears on the record. +his is to preclude different courts from assuming 9urisdiction. [.uenco $s. .ourt of 3ppeals, :o. &-"%,%", Fctober "3, 12,*! 1.( +he term EresidesE refers to Eactual residenceE as distinguished from Elegal residenceE or domicile.E [#ilipinas Shell #etroleum .orporation $s. )umlao, 6.R. :o. %%///, 7ebruary ,, 122"! 1.* +he li'uidation of the con9ugal or community property of a deceased husband or wife shall be made in his or her estate proceedings, but if both spouses are deceased, then in the estate proceeding of either. [Rule ,3, Section "! 1., ShariEa .ourts ha$e e1clusi$e original 9urisdiction in matters of settlement of the estate of deceased <uslims. [#residential )ecree :o. 15/3, 3rticle, 1%3! &. .inds of Settlement Fn the basis of the form of settlement, there are three kinds; ".1 01tra9udicial settlement= "." Summary settlement of estates of small $alue= and


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".3 @udicial settlement through letters testamentary or letters of administration with or without the will anne1ed. /. E0tr 1udici l Settlement 3n e1tra9udicial settlement may be made by the heirs of a deceased person without ha$ing to secure letters of administration. [Rule ,%, Section 1! /.- The follo2in# re3uisites must ,e "resent: 3.1.1 +he decedent left no will and no debts. :ote; -t shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (" years after the death of the decedent. 3.1." 3 bond e'ui$alent to the $alue of the personal property of the estate is posted with the Register of )eeds. :ote; +he $alue must be certified to under oath by the parties concerned and the bond must be conditioned upon the payment of any 9ust claim that may be filed. 3.1.3 +he fact of settlement is published in a newspaper of general circulation once a week for three (3 consecuti$e weeks. :ote; :o e1tra9udicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. /.& The e0tr 1udici l settlement m 4 follo2 n4 one of three 5/6 2 4s: 3.".1 #ublic instrument; 3 public instrument is e1ecuted by all the heirs to be filed with the register of deeds. 3."." 3ction for #artition; -f the heirs cannot agree on the di$ision of the estate, an ordinary action for partition may be filed. 3.".3 3ffida$it of self-ad9udication; -f there is only one (1 heir, then the heir may e1ecute an affida$it ad9udicating to himself or herself the entire estate, which affida$it shall be filed with the register of deeds. /./ 7inor heirs -f there are minor heirs, they may be represented by their 9udicial or legal representati$es duly authori>ed for the purpose. 8. Summ r4 Settlement of Est tes of Sm ll ( lue $Rule %89 Section &' %.1 Chen the gross $alue of the estate of a deceased person does not e1ceed #15,555, upon a proper petition, the court ha$ing 9urisdiction, may proceed summarily to settle the estate, without the appointment of an e1ecutor or administrator, and without delay. %." +he petition may be filed by an interested person and should make such $alue appear to the court. %.3 +he hearing on the petition shall be held not less than one (1 month nor more than three (3 months from the date of the last publication of the notice. %.% +he notice shall be published once a week for three (3 consecuti$e weeks in a newspaper of general circulation in the pro$ince. :otice shall also be gi$en to all interested persons as the court may direct. %.( 3fter hearing, the court may grant, if proper, allowance of the will, if any there be, determine the persons legally entitled to participate in the estate, and apportion and di$ide it among them after payment of the debts of the estate. :ote; Defore allowing a partition, the court may re'uire the distributees, if property other than real is to be distributed, to file a bond in an amount to be fi1ed by the court. [Rule ,%, Section 3! %.* +hose who are entitled to the estate, if they are of age and with legal capacity, or by their guardians and trustees legally appointed and 'ualified, shall be entitled to recei$e their share of the estate. %., +he court may issue an order respecting the costs of the proceedings.


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%./ 3ll orders and 9udgments shall be recorded in the office of the clerk, and the order of partition or award, if it in$ol$es real estate, shall be recorded in the proper registerEs office. :. Li ,ilit4 of Distri,utes nd Est te under n E0tr 1udici l Settlement or A Summ r4 Settlement of Est tes of Sm ll ( lue $Rule %89 Section :' (.1 -f it shall appear at any time within two (" years after the settlement and distribution of an estate that an heir or other person has been unduly depri$ed of his lawful participation in the estate, such heir or person may compel the settlement of the estate in the courts. (." -f within the same time it shall appear that there are debts outstanding against the estate which ha$e not been paid, or that an heir or other person has been unduly depri$ed of his4her lawful participation payable in money, the court may, by order for that purpose, after hearing, settle the amount and order how much and in what manner each distribute shall contribute in the payment. -f circumstances re'uire, it may issue e1ecution against the bond or against the real estate belonging to the deceased or both. :ote; Such bond and such real estate shall remain charged with a liability to creditors, heirs, or other persons for the full period of two (" years after such distribution, notwithstanding any transfers of real estate that may ha$e been made. (.3 -f on the date of the e1piration of the period of two ("5 years the person authori>ed to file a claim is; a a minor= or b mentally incapacitated= or is in prison= or d outside the #hilippines, he may present his claim within one (1 years after such disability is remo$ed. [Rule ,%, Section (! ;. *udici l Settlement 2ith Letters Test ment r4 or 2ith Letters of Administr tion Settlement shall otherwise be in court in special proceedings through a full-blown procedure with either a testator or an e1ecutor managing the estate of the deceased until partition and distribution after the payment of debts, legacies and de$ises. %. Process $Rule %/9 Section /' ,.1 -n the e1ercise of probate 9urisdiction, .ourts of 7irst -nstance may issue warrants and process necessary to compel the attendance of witnesses or to carry into effect their orders and 9udgments, and all other powers granted them by law. ,." +he court may issue a warrant for the apprehension and imprisonment of a person [until s4he performs the order or 9udgment! if such person does not perform the order or 9udgment rendered by a court in the e1ercise of its probate 9urisdiction. <. Presum"tion of De th $Rule %/9 Section 8' 3 person shall be presumed dead if absent and unheard of for the periods fi1ed in the .i$il .ode [3rticles 325 and 321!. -f such person pro$es to be ali$e, he shall be entitled to the balance of his estate after payment of all his debts which may be reco$ered by motion in the same proceeding. B. Pro, te of =ills :ote; :o will shall pass either real or personal estate unless it is pro$ed and allowed in the proper court. Such allowance shall be conclusi$e as to its due e1ecution sub9ect to the right of appeal. [Rule ,(, Section 1! -. =ill9 E0"l ined 3 will is an act whereby a person is permitted, with all the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. -.- Re3uisites of not ri l 2ill 1.1.1 0$ery will must be in writing and e1ecuted in a language or dialect known to the testator. 1.1." 0$ery will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testatorEs name written by some other person in his presence, and by his e1press


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direction, and attested and subscribed by three (3 or more credible witnesses in the presence of the testator and of one another. 1.1.3 +he attestation shall state; a the number of pages used upon which the will is written= and b the fact that the testator signed the will and e$ery page thereof, or caused some other person to write his name, under his e1press direction, in the presence of the instrumental witnesses= and c that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. 1.1.% 0$ery will must be acknowledged before a notary public by the testator and the witnesses. 1.1.( -f the will is not contested, only one (1 subscribing witness needs to testify [Rule ,*, Section (, first paragraph!= if the will is contested, all subscribing witnesses and the notary must testify [Rule ,*, Section 11, first paragraph!. -.& It m 4 ,e holo#r "hic 2ill if it is in the h nd2ritin# of the test tor9 ,ut it must ,e entirel4 2ritten9 d ted nd si#ned ,4 him. 1.".1 -t is sub9ect to no other form, may be made in or out of the #hilippines, and needs no witnesses. 1."." 3t least one witness should testify that the will and the signature thereon are in the handwriting of the testator [Rule ,*, Section (, second paragraph!. -f the holographic will is contested, at least three (3 witnesses who know the handwriting of the testator must testify but in the absence of any competent witness, if the court deems it necessary, e1pert testimony may be resorted to. [Rule ,*, Section 11, second paragraph! &. Time to su,mit to the court &.- Re#lement r4 "eriods ".1.1 Cithin twenty ("5 days from knowledge of the death of the testator, the custodian of a will shall deli$er it to the court ha$ing 9urisdiction or to the e1ecutor named in the will. [Rule ,(, Section "! ".1." Fn the other hand, the e1ecutor has twenty ("5 days from knowledge of the death of the testator or knowledge of the fact that he is named e1ecutor to submit the will to the court unless the will has reached the court already. Cithin the same period, he shall signify to the court in writing whether he accepts or refuses the trust. [Rule ,(, Section 3! &.& Pen lties ".".1 3 person who neglects to comply with Rule ,(, Sections " and 3, without e1cuse satisfactory to the court, shall be fined not e1ceeding #",555. [Rule ,(, Section %! "."." +he custodian who refuses to comply with the order of the court to deli$er the will, when he is ordered to do so, may be committed to prison until he deli$ers the will. [Rule ,(, Section (! /. Procedure in the Pro, te of =ill 3.1 +he contents of a petition for the allowance of a will are [Rule ,*, Section "!; a +he 9urisdictional facts= b +he names, ages, and residences of the heirs, legatees, and de$isees of the testator or decedent= c +he probable $alue and character of the property of the estate= d +he name of the person for whom letters are prayed= e -f the will has not been deli$ered to the court, the name of the person ha$ing custody of it. :ote; :o defect in the petition shall render $oid the allowance of the will, or the issuance of letters testamentary or of administration with the will anne1ed. /.& Time for "ro!in# the 2ill +he court shall fi1 a time and place for pro$ing the will when all concerned may appear to contest the allowance thereof. [Rule ,*, Section 3! /./ Pu,lic tion of notice +he court shall cause notice of such time and place to be published three (3 weeks successi$ely, pre$ious to the time appointed, in a newspaper of general circulation in the pro$ince. [Rule ,*, Section 3!


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:ote; Chere the petition for probate has been filed by the testator himself, no newspaper publication shall be made. /.8 Persons entitled to notice $Rule %;9 Section 8' 3.%.1 8eirs, de$isees, legatees, and e1ecutors should be notified by mail or personally. 3.%." +he mail should be deposited in the post office with the postage thereon prepaid at least twenty ("5 days before the hearing, if the places of residence be known. 3.%.3 #ersonal ser$ice of copies of the notice at least ten (15 days before the day of hearing shall be e'ui$alent to mailing. :ote; -f the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. /.: Proof t he rin# $Rule %;9 Section :' 3t the hearing, compliance with the pro$isions on notice and its publication must be shown before the introduction of testimony in support of the will. 3ll testimony shall be taken under oath and reduced to writing. /.; Lost or destro4ed 2ill $Rule %;9 Section ;' :o will shall be pro$ed as a lost or destroyed will unless; 3.*.1 +he e1ecution and $alidity of the same be established= and 3.*." +he will is pro$ed to ha$e been in e1istence at the time of the death of the testator, or is shown to ha$e been fraudulently or accidentally destroyed during the lifetime of the testator without his knowledge= nor 3.*.3 Gnless its pro$isions are clearly and distinctly pro$ed by at least two (" credible witnesses. /.% De"osition $Rule %;9 Section %' -f none of the subscribing witnesses resides in the pro$ince, the court may, on motion, direct a deposition to be taken, and may authori>e a photographic copy of the will to be made and to be presented to the witness on his e1amination. /.< )n ! il ,le 2itnesses $Rule %;9 Section <' -f the subscribing witnesses are dead or insane, or none of them resides in the #hilippines, the court may admit the testimony of other witnesses to pro$e the sanity of the testator= the due e1ecution of the will= and as e$idence of the e1ecution of the will, it may admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them. /.> Contestin# 2ill $Rule %;9 Section -?' 3nyone appearing to contest the will must state in writing his grounds for opposing its allowance, and ser$e a copy thereof on the petitioner and other parties interested in the estate. /.-? Certific te of Allo2 nce $Rule %;9 Section -/' -f the court is satisfied that the will was duly e1ecuted and that the testator at the time of its e1ecution was of sound and disposing mind and not acting under duress, menace and undue influence, or fraud, a certificate of its allowance signed by the 9udge and attested by the seal of court a shall be attached to the will [and the will and certificate filed and recorded by the clerk of court!= and b shall be recorded in the register of deeds of the pro$ince in which the lands lie. /.-- Grounds for dis llo2in# 2ill $Rule %;9 Section >' +he will shall be disallowed in any of the following cases; 3.11.1 -f not e1ecuted and attested as re'uired by law= 3.11." -f the testator was insane, or otherwise mentally incapable to make a will, at the time of its e1ecution= 3.11.3 -f it was e1ecuted under duress, or the influence of fear, or threats= 3.11.% -f it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit=


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3.11.( -f the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fi1ing his signature thereto. 8. Allo2 nce of =ill Pro!ed Outside of Phili""ines $Rule %%' %.1 3 petition for allowance in the #hilippines must be filed by the e1ecutor or other interested person. 3 duly authenticated copy of the will and of the order of the allowance must be attached. %." +he court shall then; a fi1 a time and place for the hearing= and b cause notices to be gi$en as in case of an original will presented for allowance. %.3 -f the will is allowed, a certificate of allowance shall be filed and recorded by the clerk. +he will shall ha$e the same effect as if originally pro$ed and allowed in such court. %.% +he court shall grant letters testamentary or letters of administration which shall e1tend to all the estate of the testator in the #hilipppines. %.( 3fter the payment of 9ust debts and e1penses of administration, the estate shall be disposed of according to such will. +he residue, if any, shall be disposed of a s is pro$ided by law in cases of estates in the #hilippines belonging to persons who are inhabitants of another state or country. C. E0ecutors nd Administr tors

-. Re3uirements for the Issu nce of Letters Test ment r4 nd of Letters of Administr tion $Rules %< nd %>' #robate proceedings may be opened by a petition for the allowance of a will and the issuance of letters testamentary, or letters of administration. 1.1 +he petition may be opposed and a petition may at the same time be filed for letters of administration with the will anne1ed. [Rule ,2, Section 1! 1." +he contents of a petition for letters of administration are [Rule ,2, Section "!; a +he 9urisdictional facts= b +he names, ages, and residences of the heirs, and the names and residences of the creditors, of the decedent= c +he probable $alue and character of the property of the estate= and d +he name of the person for whom letters of administration are prayed= :ote; :o defect in the petition shall render $oid the issuance of letters of administration. &. A""ointment of E0ecutors nd Administr tor ".1 :o person is competent to ser$e as e1ecutor or administrator who is a a minor= b not a resident of the #hilippines= and c in the opinion of the court, unfit to e1ecute the duties of the trust by reason of drunkenness, impro$idence, or want of understanding or integrity, or by reason of con$iction of an offense in$ol$ing moral turpitude. [Rule ,/, Section 1! "." +he e1ecutor of an e1ecutor shall not, as such, administer the estate of the first testator. [Rule ,(, Section "! 3 married woman may ser$e as e1ecutri1 or administratri1. +he marriage of a single woman shall not affect her authority so to ser$e under a pre$ious appointment. [Rule ,(, Section 3! ".3 3fter a will is pro$ed and allowed, the court shall issue letters testamentary thereon to the person named as e1ecutor therein, if he is competent, accepts the trust, and gi$es bond as re'uired by the rules. -t is clear that an e1ecutor is one who is named in a will. [Rule ,/, Section %! ".% +here may be se$eral e1ecutors named in the will. &etters testamentary may issue to such of them as are competent, accept and gi$e bond. -f no e1ecutor named 'ualifies, then an administrator is appointed. [Rule ,/, Section (! &.: Procedure in the A""ointment of n Administr tor $Rule %>9 Sections /+;' ".(.1 Chen a petition for letters of administration is filed, the court shall fi1 a time and place for hearing and shall cause notice to be gi$en to the known heirs and creditors and to other persons who ha$e interest in the estate [mode of gi$ing notice; Rule ,*, Sections 3 and %!


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".(." 3ny interested person may contest the petition by filing a written opposition. +he petition may be contested; a on the ground of incompetency of the person for whom letters are prayed= or b on the ground of the contestantAs own right to the administration. ".(.3 3t the hearing, it must be shown that notice has been gi$en. +he proof as presented by the parties shall be heard by the court and if satisfied that the decedent left no will, or that there is no competent and willing e1ecutor, it shall order the issuance of letters of administration to the party best entitled thereto. /. Priorities in the A""ointment of Administr tors $Rule %<9 Section ;' 3dministration may be granted; 3.1 +o the sur$i$ing spouse, or ne1t of kin, or both, or to such person as such sur$i$ing spouse or ne1t of kin, re'uests to be appointed, if competent and willing to ser$e. 3." +o one or more of the principal creditors, if competent and willing to ser$e, in default of the foregoing or if the sur$i$ing spouse or ne1t of kin neglects for thirty (35 days after the death of the deceased to file a petition for administration or the re'uest that administration be granted to some other person. 3.3 +o such other person as the court may select, in default of the foregoing. :ote; +he court may disregard the preference abo$e enumerated in its sound discretion and its decision will not be interfered with on appeal unless it appears that it is in error. [Sil$erio, Sr. $s. .ourt of 3ppeals, 6.R. :o. 1522,2, <arch 11, 1222! 8. A""ointment of S"eci l Administr tors 3 special administrator may be appointed when there is delay in granting letters testamentary or of administration by any cause including an appeal from the allowance or disallowance of a will. +he special administrator shall take possession and charge of the estate of the deceased until 'uestions causing the delay are decided and e1ecutors or administrators appointed. [Rule /5, Section 1! %.1 Chile the 'ualifications of a special administrator are not spelled out in the Rules, the appointment should be within the sound discretion of the court and such discretion should not be a whimsical one. +here is no reason why the same fundamental and legal principles go$erning the choice of a regular administrator should not be taken into account in the appointment of a special administrator. [F>aeta $s. #ecson, 23 #hil %1*, 12(3! 8owe$er, the court is not bound to follow the order of preference set up for the appointment of a general administrator. [Fce9o $s. .onsul 6eneral of Spain, *, #hil %,(, 1232! %." Fnly one special administrator at a time may be appointed, since the appointment is merely temporary. [F>aeta $s. #ecson, 23 #hil %1*, 12(3= 7ernande> $s. <ara$illa, :o. &-1/,22, <arch 31, 12*%! 8./ Bond +his will be in such sum as the court directs and conditioned; a that s4he will make and return a true in$entory of the goods, chattels, rights, credits, and estate of the deceased= and b that he will truly account for such as are recei$ed by him when re'uired by the court and will deli$er the same to the person appointed e1ecutor or administrator, or to such other person as may be authori>ed to recei$e them. 8.8 Po2ers nd duties +he special administrator shall take possession and preser$e the goods, chattels, rights, credits, and estate of the deceased and for that purpose may commence and maintain suits as administrator. 8e may sell only such perishable and other property as the court orders sold. 8e is not liable to pay any debts of the deceased unless so ordered by the court. [Rule /5, Sec. "!


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%.%.1 +he court has no power to order a special administrator to sell real property of the estate pending resolution of the issue of the appointment of the regular administrator. [Sil$erio, Sr. $s. .ourt of 3ppeals, 6.R. :o. 1522,2, <arch 11, 1222! %.%." 3 special administrator does not ha$e the power to close the estate because he normally does not pay the debts of the deceased. 8owe$er, he can be sued. Ftherwise, prescription may set in if the appointment of the regular administrator is delayed. [3nderson $s. #erkins, :o. &-1(3//, @anuary 31, 12*1! 8.: Termin tion +he special administrator may be remo$ed on grounds other than those mentioned in Rule /". [)e 6ala $s. 6on>ales, (3 #hil 15%, 12"2= Ro1as $s. #ecson, /" #hil %5,, 12%/! Chen an e1ecutor or administrator is appointed, the powers of the special administrator cease. 8e shall immediately deli$er the estate to the e1ecutor or administrator who may prosecute to final 9udgment suits commenced by the special administrator. [Rule /5, Section 3! :. Bond of Administr tor or E0ecutor $Rule <-' (.1 Defore an e1ecutor or administrator enters upon the e1ecution of his trust, he shall gi$e a bond, in such sum as the court directs, conditioned as follows [Section 1; (.1.1 +o make and return within three (3 months, a true and complete in$entory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge or to the possession of any other person for him= (.1." +o administer according to these rules, and if an e1ecutor, according to the will of the testator, all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or to the possession of any other person for him, and from the proceeds, to pay and discharge all debts, legacies, and charges on the same, or such di$idends thereon as shall be decreed by the court= (.1.3 +o render a true and 9ust account within one (1 year, and at any other time when re'uired by the court= and (.1.% +o perform all orders of the court. (." +he e1ecutor may ser$e without bond if the testator so directs, or with only his indi$idual bond, conditioned only to pay the debts of the testator= but the court may re'uire a further bond in case of a change in his circumstances, or for other sufficient cause, with the conditions named in the last preceding section. [Section "! (.3 Chen two (" or more persons are appointed as e1ecutors or administrators, the court may take a separate bond from each or a 9oint bond from all [Section 3!. ;. Gener l Po2ers nd Duties of E0ecutors nd Administr tors $Rule <8' 3n e1ecutor and administrator has the following powers and duties; *.1 +o ha$e access to, e1amine, and take copies of books and papers relating to the partnership business= and to e1amine and make in$oices of the property belonging to such partnership= [Section 1! *." +o maintain in tenantable repair the houses and other structures and fences belonging to the estate= and to deli$er the same in such repair to the heirs or de$isees when so directed by the court= [Section "! *.3 +o possess and manage the estate of the deceased for the payment of the debts and e1penses of administration= [Section 3! %. In!entor4 nd A""r is l $Rule </' Cithin three (3 months after his appointment, an e1ecutor or administrator shall file a true in$entory and appraisal of all the real and personal estate of the deceased, with the assistance of one or more inheritance ta1 appraisers, as may be ordered by the court.


Page 11

%.- E0clusions from the in!entor4 +he articles that should not be in$entoried are; a the wearing apparel of the sur$i$ing spouse and minor children= b the marriage bed and bedding= and c such pro$isions and other articles as will necessarily be consumed in the subsistence of the family of the deceased. +hey shall not be considered as assets, nor administered as such. [Section "! ,." 3llowance to widow and family +he widow and minor or incapacitated children of the deceased, during the settlement of the estate, shall recei$e such allowance as are pro$ided by law. [Section 3! ,.3 Huestions of title 3 probate court can resol$e 'uestions of title only pro$isionally. 3ll that the court can do is to determine whether the properties should or should not be included in the in$entory or list of properties to be administered by the administrator. -f there is a dispute, then the parties, the administrator and the opposing parties ha$e to resort to an ordinary action for a final determination of the conflicting claims of title. [Sanche> $s. .ourt of 3ppeals, 6.R. :o. 15/2%,, Fctober "3, 122,! <. S les nd 7ort# #es +he need for appro$al by the probate court e1ists only where specific properties of the estate are sold and not when only ideal and indi$isible shares of an heir are disposed of. [8eirs of #edro 0scanlar $s. .ourt of 3ppeals, 6.R. :o. 112,,,, Fctober "3, 122,! +he sale or mortgage of specific estate property may be appro$ed by the court under the following circumstances; /.1 7or the payment of debts +he sale, mortgage or encumbrance of real property to pay the obligations of the estate, if beneficial, may be appro$ed; a when the personal estate of the deceased is not sufficient to pay the debts= or b where its sale may in9ure the business or other interests of those interested in the estate= and c where the testator has not otherwise made sufficient pro$ision for the payment of such debts. [Rule /2, Section "! :ote; -f a part of the real property cannot be sold, mortgaged or otherwise encumbered without in9ury to those interested in the remainder, the disposition may be of the whole of the property, or so much as is necessary or beneficial under the circumstances. /." -f beneficial +he court may authori>e the sale of the whole or a part of the estate, although not necessary to pay the obligations of the estate so long as it will be beneficial to the heirs, de$isees, legatees and other interested persons. Such authority shall not be granted if inconsistent with the pro$isions of a will. +he proceeds shall be gi$en to the persons entitled to the estate in the proper proportions. [Rule /2, Section %! /.3 Dond to pre$ent sale, etc. #ersons interested may pre$ent a sale, mortgage or encumbrance by gi$ing a bond in a sum to be fi1ed by the court, conditioned to pay the obligations of the estate within such time as the court directs. Such bond shall be for the security of the creditors, as well as of the e1ecutor or administrator, and may be prosecuted for the benefit of either. [Rule /2, Section 3! <.8 Re#ul tions for #r ntin# uthorit4 to sell9 mort# #e9 or other2ise encum,er est te $Rule <>9 Section %' /.%.1 +he e1ecutor or administrator shall file a written petition, setting forth; a the debts due from the deceased= b the e1penses of administration, c the legacies, d the $alue of the personal estate= e the situation of the estate to be sold, mortgaged, or otherwise encumbered= and f such other facts as will show that the sale, mortgage, or other encumbrance is necessary or beneficial. /.%." +he court shall then cause notice to be gi$en personally or by mail to the persons interested, stating the nature of the petition, the reason for the same, and the time and place of hearing. +he court may cause further notice by publication or otherwise.


Page 12

/.%.3 +he court may direct the e1ecutor or administrator to gi$e an additional bond to account for the proceeds of the sale, mortgage, or other encumbrance. /.%.% +he court may authori>e the e1ecutor or administrator to sell, mortgage or otherwise encumber such part of the estate as is deemed necessary. +he court may authori>e the sale to be public or pri$ate, as would be most beneficial to all parties concerned. /.%.( -f the estate is to be sold at auction, the mode of gi$ing notice of the time and place of the sale shall be go$erned by the pro$isions concerning notice of e1ecution sale. [Rule 32! /.%.* +he transaction and the court order shall be recorded in the registry of deeds of the pro$ince in which the real estate is situated. >. Actions ,4 nd # inst E0ecutors nd Administr tors -n general, e1ecutors and administrators may bring or defend actions that sur$i$e. .laims that do not sur$i$e are money claims that ha$e to be filed in the estate proceedings. >.- Actions th t sur!i!e re those ctions: a to reco$er real or personal property, or an interest therein from the estate= or b to enforce a lien thereon= and c actions to reco$er damages for an in9ury to person or property, real or personal. [Rule /,, Section 1! >.& Actions th t do not sur!i!e re the mone4 cl ims or: a all claims for money arising from contract, e1press or implied, due, not due or contingent [+hese claims are specifically described as contractual money claims in the Rules of .ourt, Rule "5, Sec. 3!= b all claims for funeral e1penses= c e1penses for the last sickness of the decedent= and d 9udgment for money against the decedent, which should be presented in the form of claims against the estate. [Rule /*, Section (! >./ 7ort# #e due est te m 4 ,e foreclosed -f the deceased was a mortgagee or assignee of the right of a mortgagee, the mortgage may be foreclosed by the e1ecutor or administrator. [Rule /,, Section (! >.8 Proceedin#s 2hen "ro"ert4 conce led9 em,e@@led9 or fr udulentl4 con!e4ed $Rule <%9 Section ;' 2.%.1 Chen a person is suspected of ha$ing concealed, embe>>led, or con$eyed away any of the money or chattels of the deceased, or when such person possesses or knows of a document which contains e$idence of or tends to disclose the right of the deceased to real or personal estate, or his last will and testament, the court may cite such suspected person to appear or to answer, and may e1amine him on oath on the matter of such complaint. 2.%." -f the person so cited refuses to appear and gi$e rogatories, the court may punish him for contempt and may commit him to prison until he submits to the order of the court. [+he interrogatories, if any, and his answers thereto, shall be in writing and shall be filed in court.! >.: Rendition of ccount 3 person entrusted by the e1ecutor or administrator with property of the deceased, may be compelled to render a full account on oath before the court. [Rule /,, Section ,! >.; Em,e@@lement ,efore letters issued $Rule <%9 Section <' 3 person who embe>>les or alienates property of the deceased before issuance of letters testamentary or of administration, is liable for double the $alue of the property embe>>led, to be reco$ered for the benefit of such estate. >.% Remed4 for fr udulent con!e4 nce ,4 the dece sed durin# his lifetime +he remedy may be by action of the e1ecutor or administrator or by a creditor under the following circumstances; 2.,.1 3ction by e1ecutor or administrator [Rule /,, Section 2! Chen there is a deficiency of assets for the payment of debts and e1penses of administration and the deceased during his lifetime had con$eyed property with intent to defraud his creditors, the


Page 13

con$eyance would be $oid as against his creditors, and the sub9ect of the attempted con$eyance would be sub9ect to attachment by any of the creditors in his lifetime. +he e1ecutor or administrator may file an action to reco$er such property but is not be bound to do so, unless the creditors pay for the costs and e1penses thereof or gi$e security as the court deems e'uitable. 2.,." 3ction by the creditor [Rule /,, Section 15! Fn the other hand, a creditor may file such an action in the name of the e1ecutor or administrator upon the filing by the creditor of a bond appro$ed by the court to indemnify the e1ecutor or administrator. +he creditor shall ha$e a lien on the 9udgment reco$ered for costs and e1penses as the court deems e'uitable. :ote; Chere the con$eyance or attempted con$eyance was made by the deceased in his lifetime in fa$or of the e1ecutor or administrator, the action of the creditor shall be filed in the name of all the creditors without need of court permission or the filing of a bond -?. 7one4 Cl ims # inst the Est teA Notice to Creditors -mmediately after granting letters testamentary or of administration, the court shall issue a notice re'uiring all persons ha$ing money claims against the decedent to file them in the office of the clerk of court. [Rule /*, Section 1! 15.1 +ime within which claims shall be filed -n said notice, the court shall state the time for the filing of claims against the estate, which shall not be more than twel$e (1" nor less than si1 (* months after the date of the first publication of the notice. 8owe$er, before an order of distribution is issued, the court may, for cause shown and on such terms as are e'uitable, allow a claim to be filed within a time not e1ceeding one (1 month. [Rule /*, Section "! 15." #ublication of notice to creditors +he e1ecutor or administrator shall immediately cause the notice to be published three (3 weeks successi$ely in a newspaper of general circulation in the pro$ince, and to be posted for the same period in four (% public places in the pro$ince and in two (" public places in the municipality where the decedent last resided. [Rule /*, Section 3! 15.3 7iling copy of printed notice Cithin ten (15 days after the publication and the posting, the e1ecutor or administrator shall file in court a printed copy of the notice, accompanied with an affida$it of publication setting forth the dates of the first and last publication thereof and the name of the newspaper in which the same was printed. [Rule /*, Section %! -?.8 Bilin# of cl ims +he claims which must be filed under the notice are; 15.%.1 all claims for money against the decedent, arising from contract, e1press or implied, whether the same be due, not due, or contingent= 15.%." all claims for funeral e1penses and e1penses for the last sickness of the decedent= and 15.%.3 9udgment for money against the decedent. [Rule /*, Section (! :ote; Gnder the 122, Rules of .i$il #rocedure, an action for a contractual money claim against a defendant who dies before entry of final 9udgment, must proceed until entry of final 9udgment. 3 fa$orable 9udgment obtained by the plaintiff shall be enforced as a money claim against the estate of the defendant which shall be filed in the estate proceeding. [Rule "5, Section 3! -?.: Time , r $Rule <;9 Section :' .laims that are not filed within the time limited in the notice, are barred fore$er, e1cept that they may be set forth as counterclaims in any action that the e1ecutor or administrator may bring against the claimants.


Page 14

-?.; Set off $Rule <;9 Section :' Chere an e1ecutor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth in an action by the e1ecutor or administrator against him, by answer the claims he has against the decedent, instead of presenting them independently as a claim against the estate, and mutual claims may be set off against each other in such action. .laims not yet due, or contingent, may be appro$ed at their present $alue. -?.% Co2 to file cl im $Rule <;9 Section >' 3 claim may be filed by deli$ering the same with the necessary $ouchers to the clerk of court and by ser$ing a copy thereof on the e1ecutor or administrator. -f the claim be founded on a bond, etc.; 6eneral rule; +he original need not be filed but a copy thereof with all indorsements shall be attached to the claim and filed therewith. 01ception; Fn demand of the e1ecutor or administrator or by order of the court or 9udge, the original shall be e1hibited. 01ception to the e1ception; +he original need not be filed if it is lost or destroyed. [+he claimant must accompany his claim with affida$it4s containing a copy or particular description of the instrument and stating its loss or destruction. 15.,.1 -f the claim is not due, or is contingent, it must also be supported by affida$it stating the particulars thereof. Chen the affida$it is made by a person other than the claimant, he must set forth therein the reason why it is not made by the claimant. 15.,." +he court, in its discretion, and as a matter of con$enience, may order all the claims to be collected in a separate folder. -?.< Dis"osition of dmitted cl im $Rule <;9 Section --' 3ny claim admitted by the e1ecutor or administrator shall immediately be submitted by the clerk to the court who may appro$e the same without hearing= but the court may order that known heirs, legatees, or de$isees be notified and heard. -?.> Tri l of contested cl im $Rule <;9 Section -&' Gpon the filing of an answer or upon the e1piration of the time for such filing, the clerk of court shall set the claim for trial with notice to both parties. +he court may refer the claim to a commissioner. -?.-? *ud#ment ""e l ,le +he 9udgment of the court appro$ing or disappro$ing a claim, is appealable. 3 9udgment against the e1ecutor or administrator that he pay shall not create any lien upon the property of the estate, or gi$e to the 9udgment creditor any priority of payment. --. P 4ment of De,ts -f there are sufficient assets to pay the debts, the e1ecutor or administrator shall pay the same within the time limited for that purpose. [Rule //, Section 1! --.- Source of " 4ment s desi#n ted ,4 the test tor $Rule <<9 Section &' +he debts of the testator, the e1penses of administration, or family e1penses, shall be paid according to the pro$isions of the will if the testator makes pro$ision by his will or designates the estate to be appropriated for the payment. -f the pro$ision or the estate is not sufficient, such part of the estate not disposed of by will, if any, shall be appropriated for that purpose. --.& Person lt4 first ch r#e ,le for de,ts9 then re lt4 $Rule <<9 Section /' +he personal estate of the deceased not disposed of by will shall first be chargeable with the payment of debts and e1penses. -f it is not sufficient, or its sale would be detrimental to the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as


Page 15

is necessary, may be sold, mortgaged, or otherwise encumbered by the e1ecutor or administrator, after obtaining the authority of the court therefor. 3ny deficiency shall be met by contributions in accordance with the pro$isions of Section *. --./ Preference of " 4ment if est te insol!ent $Rule <<9 Section %' -f the assets are not sufficient for the payment of debts, they shall be paid in accordance with the pro$isions of 3rticles 15(2 and ""32 to ""(1 of the .i$il .ode on concurrence and preference of credits. --.8 =hen nd ho2 cl im "ro!ed outside the Phili""ines # inst insol!ent residentDs est te " id $Rule <<9 Section -?' -f claims ha$e been duly pro$en in another country against the estate of an insol$ent who was at the time of his death an inhabitant of the #hilippines, and that the local e1ecutor or administrator knew of such claims and had an opportunity to contest their allowance, the court shall add a certified list of such claims to the list of claims pro$ed in the #hilippines so that a 9ust distribution of the whole estate may be made. :ote; +he benefit of this and the preceding sections shall not be e1tended to the creditors in another country if the property of the deceased there found is not e'ually apportioned to the creditors residing in the #hilippines and the other creditors, according to their respecti$e claims. --.: Time for " 4in# de,ts nd le# cies $Rule <<9 Section -:' +he e1ecutor or administrator shall pay the debts and legacies of the deceased within a period of time fi1ed by the court, which shall not e1ceed one (1 year, but the court may, on motion of the e1ecutor or administrator and after hearing, e1tend the time as the circumstances of the estate re'uire not e1ceeding si1 (* months for a single e1tension. 8owe$er, the whole period allowed to the original e1ecutor or administrator shall not e1ceed two (" years. -&. Account ,ilit4 nd Com"ens tion of E0ecutors nd Administr tors $Rule <:9 Section -' 01cept as otherwise e1pressly pro$ided in the following sections, e$ery e1ecutor or administrator is chargeable; a with the whole of the estate of the deceased which has come into his possession, at the $alue of the appraisement contained in the in$entory= b with all the interest, profit, and income of such estate= and (c with the proceeds of so much of the estate as is sold by him, at the price at which it was sold. 1".1 -ncrease or decrease in $alue [Rule /(, Section "! 1".1.1 :o e1ecutor or administrator shall profit by the increase, or suffer loss by the decrease or destruction, without his fault, of any part of the estate. 1".1." 8e must account for the e1cess when he sells any part of the estate for more than the appraised $alue, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been 9ustly made. 1".1.3 -f he settles any claim against the estate for less than its nominal $alue, he is entitled to charge in his account only the amount he actually paid on the settlement. 1"." 3ccountable for income from realty used by him [Rule /(, Section %! -f the e1ecutor 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 ad9usted by the court with their assent. -f the parties do not agree, the amount may be ascertained by the court, whose determination shall be final. -&./ Account ,le for del 4 $Rule <:9 Section :' Chen an e1ecutor or administrator a neglects or unreasonably delays to raise money by collecting the debts or selling the real or personal estate of the deceased= or b neglects to pay o$er the money he has in his hands, and the $alue of the estate is thereby lessened or unnecessary cost or interest accrues, or the persons interested suffer loss, the damage sustained may be charged against him, and he shall be liable therefor on his bond.


Page 16

-&.8 E0"enses nd fees llo2ed e0ecutor or dministr tor $Rule <:9 Section %9 first " r #r "h' 3n e1ecutor or administrator shall be allowed the necessary e1penses in the care, management, and settlement of the estate, and for his ser$ices, #%.55 per day for the time actually and necessarily employed, or a commission upon the $alue of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts, e1penses, legacies, or distributi$e shares, or by deli$ery to heirs or de$isees, of ; 1".%.1 "I of the first #(,555= 1".%." 1I if the $alue of the estate is more than #(,555 but less than #35,555= 1".%.3 14"I if more than #35,555, but less than #155,555= and 1".%.% 14%I if more than #155,555. :ote; Dut in any special case, where the estate is large, and the settlement has been attended with great difficulty, and has re'uired a high degree of capacity on the part of the e1ecutor or administrator, a greater sum may be allowed. -f ob9ection to the fees allowed to be taken, the allowance may be re-e1amined on appeal. -&.: T2o or more e0ecutors or dministr tors $Rule <:9 Section %9 second " r #r "h' -f there are two or more e1ecutors or administrators, the compensation shall be apportioned among them by the court according to the ser$ices actually rendered by them respecti$ely. -&.; Attorne4Ds fees "rohi,ited Chen the e1ecutor or administrator is an attorney, he shall not charge against the estate any professional fees for legal ser$ices rendered by him [Rule /(, Section ,, third paragraph!, but he may employ counsel [)acanay $s. &a <ancomunidad de +elepuis, ," #hil (5, 12%1= 3ldami> $s. @udge of the .ourt of 7irst -nstance of <indoro, /(, #hil ""/, 12%2! -&.% Com"ens tion "ro!ided in the 2ill $Rule <:9 Section %9 fourth " r #r "h' Chen the deceased by will makes some other pro$ision for the compensation of his e1ecutor, it shall be a full satisfaction for his ser$ices unless by a written instrument filed in the court he renounces all claim to the compensation pro$ided by the will. -&.< =hen e0ecutor or dministr tor to render ccount $Rule <:9 Section <' 0$ery e1ecutor or administrator shall render an account of his administration within one (1 year from the time of recei$ing letters testamentary or of administration, unless the court otherwise directs because of e1tensions of time; a for presenting claims against, or paying the debts of, the estate= or b for disposing of the estate. 8e shall render such further accounts as the court may re'uire until the estate is wholly settled. -&.> E0 min tions on o th 2ith res"ect to ccount $Rule <:9 Section >' 1".2.1 +he court may e1amine the e1ecutor or administrator upon oath with respect to e$ery matter relating to any account rendered by him and shall so e1amine him as to the correctness of his account before the same is allowed. +he e1ception to this rule is when no ob9ection is made to the allowance of the account and its correctness is satisfactorily established by competent proof. 1".2." +he heirs, legatees, distributees, and creditors of the estate and the e1ecutor or administrator may be e1amined on oath on any matter relating to an administration account. 1".15 :otice to e1amine the account of the e1ecutor or administrator [Rule /(, Section 15! Defore the account of an e1ecutor or administrator is allowed, notice shall be gi$en to persons interested of the time and place of e1amining and allowing the same. Such notice may be gi$en personally or by ad$ertisement in a newspaper or newspapers, or both, as the court directs. [Rule /(, Section 15! 3 person liable as surety in respect to such account may, upon application, be admitted as party to such accounting. [Rule /(, Section 11!


Page 17

-/. Re!oc tion of Administr tionA De thA Resi#n tionA Remo! l 13.1 -f after letters of administration ha$e been granted, the decedentAs will is pro$ed and allowed by the court. [Rule /", Section 1! 13." 0ffects of the re$ocation [Rule /", Section 1! a 3ll powers of administration shall cease. b +he administrator shall forthwith surrender his letters to the court. c +he administrator shall render his account within such time as the court directs. d #roceedings for the issuance of letters testamentary or of administration under the will shall be had. 13.3 6rounds for remo$al= resignation [Rule /", Section "! a :eglects to render his4her account= b :eglects to settle his4her estate according to law= c :eglects to perform an order or 9udgment of the court= d 3bsconds= e -nsanity f -ncapable or unsuitable for the discharge of the trust -/.8 Other #rounds $, sed on 1uris"rudence': a &ack of harmony or conflict of interest between the administrator and the persons interested in the estate= [#adilla $s. @ugo, *% #hil ///! b 7alse representations [.obarrubias $s. )i>on, ,* #hil "52! c #hysical incapacity [)e Dor9a $s. +an, 23 #hil *(*! d )elays in the winding and settlement of estate [&i>arraga 8ermanos $s. 3bada, %5 #hil 1"%! 13.( &awful acts of the e1ecutor or administrator before re$ocation or resignation are $alid. [Rule /", Section 3! 13.* 3 remo$ed administrator who continues to act becomes a de facto administrator until he deli$er the estate to a new administrator and is sub9ect to the orders of the court, and can be re'uired to account for products of the estate. [France $s. &apu>, *2 #hil 32(! -/.% Po2ers of the ne2 e0ecutor or dministr tor $Rule <&9 Section 8' Jsame as his predecessor a )efend or prosecute actions commenced or defended by the pre$ious administrator= b +o ha$e e1ecuted 9udgments reco$ered for the estate by the pre$ious administrator= c +o ha$e renewed authority to sell or mortgage real property obtained by the pre$ious administrator, without further notice or hearing= :ote; +he new power to sell or mortgage real estate of the deceased must be renewed in the name of the newly appointed e1ecutor or administrator. D. Distri,ution nd P rtition +he distribution of the estate can only be made after strict compliance with the pro$isions in Rule 25. -. =hen Distri,ution is 7 de 1.1 #ayment of obligations re'uired [Rule 25, Section 1, first paragraph! +he estate may be distributed only if the debts, funeral charges, and e1penses of administration, the allowance to the widow, and inheritance ta1, if any, ha$e been paid. 1.1.1 +he court, on the application of the e1ecutor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and reco$er their respecti$e shares from the e1ecutor or administrator, or any other person ha$ing the same in his possession.


Page 18

1.1." -f there is a contro$ersy as to who are the lawful heirs of the deceased person or as to the distributi$e shares to which each person is entitled under the law, the contro$ersy shall be heard and decided as in ordinary cases. -.& Ad! nce distri,ution $Rule >?9 Section -9 second " r #r "h' :o distribution shall be allowed until the payment of the obligations abo$e mentioned has been made or pro$ided for, unless the distributees, or any of them, gi$e a bond, in a sum to be fi1ed by the court, conditioned for the payment of said obligations within such time as the court directs. &. P rti l distri,ution9 2ithout " 4in# est te t 0es 3 9udge commits a gra$e abuse of discretion when he orders a partial distribution of the estate without the payment of estate ta1es. [?era $s. :a$arro, :o. &-",,%(, Fctober 1/, 12,,! /. E0"enses of " rtition $Rule >?9 Section /' 3.1 -f at the time of the distribution the e1ecutor or administrator has retained sufficient effects in his hands which may lawfully be applied for the e1penses of partition of the properties distributed, such e1penses of partition may be paid by such e1ecutor or administrator when it appears e'uitable to the court and not inconsistent with the intention of the testator. 3." Ftherwise, they shall be paid by the parties in proportion to their respecti$e shares or interest in the premises. 3.".1 +he apportionment shall be settled and allowed by the court. 3."." -f any person interested in the partition does not pay his proportion or share, the court may issue an e1ecution in the name of the e1ecutor or administrator against the party not paying for the sum assessed. 8. Pro1ect of P rtition +he practice in this 9urisdiction is to prepare and present a pro9ect of partition to the court. -t is merely a proposal for the distribution of the hereditary estate and to determine the persons entitled thereto. :. Bin l Order of P rtitionA Recordin# the Order of P rtition of the Est te $Rule >?9 Section 8' .ertified copies of final orders and 9udgments of the court relating to the real estate or partition thereof shall be recorded in the registry of deeds of the pro$ince where the property is situated. III. Gu rdi ns A. Necessit4 for Gu rdi nshi" 3 court will ha$e no 9urisdiction to render 9udgment against one ad9udged physically and mentally incompetent to manage her affairs where no guardian was appointed upon whom summons and notice of the proceedings might be ser$ed. [6orostiaga $s. Sarte, */ #hil %, 1232! -. The Dincom"etentD s the su,1ect of #u rdi nshi" a #ersons suffering from the penalty of ci$il interdiction= b 8ospitali>ed lepers= c #rodigals= d )eaf and dumb who are unable to read and write= e +hose who are of unsound mind e$en though they may ha$e lucid inter$als= and f +hose who are not of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot without outside aid, take care of themsel$es and manage their property, becoming thereby an easy prey for deceit and e1ploitation. &. P rents s #u rdi ns $Rule >/9 Section %' ".1 Chen the property of the child under parental authority is worth #",555 or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian.


Page 19

"." Chen the property of the child is worth more than #",555, the father or the mother shall be considered guardian of the childEs property, with the duties and obligations of guardians under these rules, and shall file the petition re'uired by the rules. 7or good reasons the court may, howe$er, appoint another suitable person. B. *urisdiction nd (enue

-. Tr nsfer of !enue $Rule >&9 Section /' -f the ward transfers his bona fide residence, the court may transfer the guardianship case to the court of the place of his residence wherein he has ac'uired real property, and additional court fees are not re'uired. ". +he guardianship court cannot ad9udicate title. [#arco $s. .ourt of 3ppeals, 6.R. :o. &-331(", @anuary 35, 12/"! C. Petition for Gu rdi nshi" 1. Cho may file [Rule 23, Section 1! 3ny relati$e, 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 o$er, may petition for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. ". .ontents of #etition [Rule 23, Section "! +he petition shall allege; a +he 9urisdictional facts= b +he minority or incompetency= c +he names, ages and residences of the relati$es of the minor or incompetent, and of the persons ha$ing him in their care= d +he probable $alue and character of his estate= and e +he names of the person for whom letters of guardianship are prayed. :ote; ".1 +he petition shall be $erified. "." :o defect in the petition or $erification shall render $oid the issuance of letters of guardianship. 3. :otice of 8earing [Rule 23, Section 3! Reasonable notice of the hearing of the petition shall be gi$en to the persons mentioned in the petition residing in the pro$ince, including the minor if abo$e 1% years of age or the incompetent himself. +he court may direct other general or special notice to be gi$en. %. 6rounds for Fpposition [Rule 23, Section %! +he petition may be opposed [must be written! on the grounds of; a ma9ority of the alleged minor= b competency of the alleged incompetent= or c unsuitability of the proposed guardian. (. Frder [Rule 23, Section (! 3t the hearing; a the alleged incompetent must be present if able to attend= and b it must be shown that the re'uired notice has been gi$en. 0$idence will be heard and if it be pro$ed that the person in 'uestion is a minor or incompetent, the court shall appoint a suitable guardian of his person or estate, or both. *. 6uardian for the 0state of a :onresident Cho 8as 0state in the #hilippines [Rule 23, Section *! Fn notice, by publication or otherwise, and after the hearing, a guardian may be appointed for the estate in the #hilippines of a nonresident minor or incompetent.


Page 20

D. Gu rdi nDs Bond $Rule >89 Section -' +he guardian shall gi$e a bond conditioned; a +o make a true and complete in$entory within three (3 months= b +o faithfully e1ecute the duties of his trust= to manage and dispose of the estate according to these rules for the best interests of the ward= and to pro$ide for the proper care, custody and education of the ward= c +o render a true and 9ust account at the time designated by these rules and such other times as the court directs= and to settle his accounts with the court and deli$er and pay o$er all the estate, effects and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto at the e1piration of his trust= and d to perform all orders of the court. 1. :ew Dond [Rule 2%, Section "! 3 new bond may be re'uired and the old sureties discharged whene$er it is deemed necessary, after due notice to interested persons, when no in9ury can result therefrom to those interested in the estate. ". Dond to be 7iled= 3ctions +hereon [Rule 2%, Section 3! 0$ery bond of a guardian shall be filed in the office of the clerk of the court. -n case of the breach of a condition thereof, it may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any person legally interested in the estate. E. Gener l Po2ers nd Duties 1. +he guardian has the care and custody of the person of the ward and4or the management of his estate. +he guardian of the estate of a nonresident shall ha$e the management of all the estate of the ward within the #hilippines. [Rule 2*, Section 1! ". +he guardian should pay the wardEs 9ust debts from his personal property and income of his real estate. -f such is insufficient, payment should be made out of the sale or encumbrance of real estate as authori>ed by the court. [Rule 2*, Section "! 3. +he guardian must; a settle all accounts of his ward= b demand, sue for, and recei$e all debts due him or may, with the appro$al of the court, compound for the same and gi$e discharges to the debtor, on recei$ing a fair and 9ust di$idend of the estate and effects= and c appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose. [Rule 2*, Section 3! %. +he estate should be managed frugally and without waste and the income and profits thereof must be applied to the comfortable and suitable maintenance of the ward and his family. -f such is insufficient, the guardian may sell or encumber the real estate upon being authori>ed by court order. [Rule 2*, Section %! (. +he guardian may be authori>ed by the court to 9oin in an assent to a partition of real or personal estate held by the ward 9ointly or in common with others. [Rule 2*, Section (! :ote; Such authority shall only be granted after hearing, upon such notice to relati$es of the ward as the court may direct and a careful in$estigation as to the necessity and propriety of the proposed action. *. 3fter making an in$entory [which must be sworn to by the guardian! after three (3 months, the guardian is re'uired to file an in$entory and accounting annually. [Rule 2*, Section ,! ,. Gpon the e1piration of a year from the time of his appointment, and as often thereafter as may be re'uired, a guardian must present his account to the court for settlement and allowance. [Rule 2*, Section /! /. Gpon complaint of any guardian or ward, or of any person ha$ing actual or prospecti$e interest in the estate of the ward [as creditor, heir or otherwise!, a person suspected of embe>>ling or concealing property of the ward may be asked to appear for e1amination. [Rule 2*, Section *!


Page 21

B. Com"ens tion nd E0"enses $Rule >;9 Section <' -n the settlement of account, the guardian is allowed reasonable e1penses incurred in the e1ecution of his trust and such compensation as the court deems 9ust, not e1ceeding fifteen percentum (1(I of the net income of the ward. G. S le or Encum,r nce 1. Scenario4s; 1.1 +he income of an estate under guardianship is insufficient a to maintain the ward and his family= or b to maintain and educate the ward when a minor= or 1." -t appears that it is for the benefit of the ward that his real estate or some part thereof be sold, or mortgaged or otherwise encumbered, and the proceeds thereof be put out at interest, or in$ested in some producti$e security, or in the impro$ement or security of other real estate of the ward, +he guardian may present a $erified petition for lea$e to sell or encumber estate. [Rule 2(, Section 1! ". -f it seems that the sale or encumbrance is necessary or would be beneficial to the ward, the court shall make an order to show cause why the prayer of the petition should not be granted. [Rule 2(, Section "! 3. +he court may grant or refuse the prayer of the petition as the best interests of the ward re'uire. -t shall also make such order as to costs of the hearing as may be 9ust. [Rule 2(, Section 3! +he order to sell is $alid for one (1 year. [Rule 2(, Section %! +he court may order in$estment of proceeds and may direct the management of the estate. [Rule 2(, Section (! %. +he original bond of the guardian shall answer for the proceeds of the sale, but the court may re'uire an additional bond as a condition for the granting of the order of sale. [Rule 2(, Section %! (. 3 court order authori>ing the sale of a wardEs property, is sub9ect to appeal, not certiorari and mandamus. [&ope> $s. +eodoro, /* #hil %22, 12(5! C. Petition for Termin tion of Gu rdi nshi" 1. #rocedure [Rule 2,, Section 1! 1.1 3 person who has been declared incompetent for any reason, or his guardian, relati$e, or friend may file a $erified petition to ha$e his present competency 9udicially determined. :ote; +he petition shall be $erified by oath and shall state that such person is then competent. 1." Gpon recei$ing the petition, the court shall fi1 a time for hearing the 'uestions raised thereby, and cause reasonable notice thereof to be gi$en to the guardian of the person so declared incompetent, and to the ward. 1.3 Fn trial, the guardian or relati$es of the ward [and in the discretion of the court, any other person! may contest the right to the relief demanded. Citnesses may be called and e1amined by the parties or by the court on its own motion. 1.% -f it be found after hearing that the person is no longer incompetent, his competency shall be ad9udged and the guardianship shall cease. &. Grounds for Remo! l $Rule >%9 Section &' 3 guardian may be remo$ed when s4he; a becomes insane, b is otherwise incapable of discharging his trust, c is unsuitable therefor, d has wasted or mismanaged the estate, or e has failed for thirty (35 days to render an account or make a return. :ote; 3 guardian may resign when it appears proper to allow the same. Gpon his4her resignation or remo$al the court may appoint another in his place. /. Other Grounds for Termin tion 3.1 <arriage or $oluntary emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age. 8owe$er,


Page 22

he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. 8e can sue and be sued in court only with the assistance of his father, mother or guardian. Gpon the application of the ward or otherwise, the guardians may be discharged if the guardianship is no longer necessary. [ Rule 2,, Section 3! 3." 3d$anced age +he conclusion by the trial court that the guardian of ad$anced age is not fit to continue, is not to be disturbed, particularly with his delay in making an accounting and filing an in$entory. Chile age alone is not a controlling criterion, it may be a factor for consideration. [7rancisco $s. .ourt of 3ppeals, :o. &-(,%3/, @anuary 31, 12/%! I(. Ado"tion -. Go!ernin# L 2s 1.1 +he basic go$erning law on domestic adoption is found in Republic 3ct :o. /((" [3n 3ct 0stablishing the Rules and #olicies on the )omestic 3doption of 7ilipino .hildren!. -t was appro$ed on 7ebruary "(, 122/. -t took effect fifteen (1( days after its complete publication in a newspaper of general circulation in the Ffficial 6a>ette. 1.". Fn )ecember ", 122/, Rules and Regulations to -mplement the )omestic 3doption 3ct of 122/ were promulgated to go$ern the adoption of 7ilipino children within the #hilippines. 1.3. 7oreign adoptions are go$erned by Republic 3ct :o. /5%3 [3n 3ct 0stablishing the Rules to 6o$ern -nter-.ountry 3doption of 7ilipino .hildren! appro$ed on @une ", 122(. 1.%. #rior laws on adoption include pro$isions in the .hild and Kouth Celfare .ode (#residential )ecree :o. *53 , the 7amily .ode, and 01ecuti$e Frder :o. 21. 1.(. +he 7amily .ode e1pressly repealed 3rticles 1,-12, ",-31, 32-%" of the .i$il .ode and 3rticles ",-"2, 31, 33 and 3( of #residential )ecree :o. *53. 1.*. +he .i$il .ode pro$isions, howe$er, were e1pressly repealed by the pro$isions of #.). :o. *53, which took effect in 12,(, or si1 months after its appro$al on )ecember 15, 12,%. 1.,. 3bout si1 months before the 7amily .ode was signed by #resident .ora>on .. 3'uino as 01ecuti$e Frder :o. "52 on @uly *, 12/,, she promulgated 01ecuti$e Frder :o. 21 on )ecember "3, 12/*. -t was published in the Ffficial 6a>ette on @anuary 1", 12/,. -t should ha$e taken effect fifteen (1( days thereafter or on @anuary ",, 12/,. 1./. Republic 3ct :o. /((" pro$ides that any law, presidential decree or issuance, e1ecuti$e order, letter of instruction, administrati$e order, rule, or regulation contrary to, or inconsistent with its pro$isions is repealed, modified or amended accordingly. :ote; +he pro$isions of Rules 22 and 155 in the Rules of .ourt should thus be considered amended. &. Petition for Ado"tion -. =ho 7 4 Ado"t $RA <::&9 Section %' a 3ny 7ilipino citi>en of legal age, in possession of full ci$il capacity and legal rights, of good moral character, has not been con$icted of any crime in$ol$ing moral turpitude, emotionally and psychologically capable of caring for children, at least si1teen (1* years older than the adoptee, and who is in a position to support and care for his4her children in keeping with the means of the family. :ote; +he re'uirement of si1teen (1* year difference between the age of the adopter and adoptee may be wai$ed when the adopter is the biological parent of the adoptee, or is the spouse of the adopteeEs parent. b 3ny alien possessing the same 'ualifications as abo$e stated for 7ilipino nationals; #ro$ided, +hat his4her country has diplomatic relations with the Republic of the #hilippines, that s4he has been li$ing in the #hilippines for at least three (3 continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that s4he has been


Page 23

certified by his4her diplomatic or consular office or any appropriate go$ernment agency that s4he has the legal capacity to adopt in his4her country, and that his4her go$ernment allows the adoptee to enter his4her country as his4her adopted son4daughter; #ro$ided, 7urther, +hat the re'uirements on residency and certification of the alienEs 'ualification to adopt in his4her country may be wai$ed for the following; (i a former 7ilipino citi>en who seeks to adopt a relati$e within the fourth (%th degree of consanguinity or affinity= or (ii one who seeks to adopt the legitimate son4daughter of his4her 7ilipino spouse= or (iii one who is married to a 7ilipino citi>en and seeks to adopt 9ointly with his4her spouse a relati$e within the fourth (%th degree of consanguinity or affinity of the 7ilipino spouse= or (i$ the guardian with respect to the ward after the termination of the guardianship and clearance of his4her financial accountabilities. c 8usband and wife shall 9ointly adopt, e1cept in the following cases [R3 /((", Section ,!; (i if one spouse seeks to adopt the legitimate son4daughter of the other= or (ii if one spouse seeks to adopt his4her own illegitimate son4daughter; #ro$ided, 8owe$er, that the other spouse has signified his4her consent thereto= or (iii if the spouses are legally separated from each other. -n case husband and wife 9ointly adopt, or one spouse adopts the illegitimate son4daughter of the other, 9oint parental authority shall be e1ercised by the spouses. &. *urisdiction l (enue 3 petition for adoption shall be filed in the Regional +rial .ourt of the place in which the petitioner resides. [Rule 22, Section 1! 3doption now falls under the original and e1clusi$e 9urisdiction of the Regional +rial .ourt. [D# 1"2! /. Su,1ects of Ado"tion $RA <::&9 Section <' 8. Procedure %.1 .ontents of petition a +he 9urisdictional facts= b +he 'ualifications of the adopter= c +hat the adopter is not dis'ualified by law= d +he name, age, and residence of the person to be adopted and of his relati$es or of the persons who ha$e him under their care= e +he probable $alue and character of the estate of the person to be adopted. %." Re'uired consent Gnder R3 /((", Section 2, written consent of the following is re'uired; a +he adoptee, if ten (15 years of age or o$er. b +he biological parent(s of the child, if known, or the legal guardian, or the proper go$ernment instrumentality which has legal custody of the child. c +he legitimate and adopted sons4daughters, ten (15 years of age or o$er, of the adopter(s and adoptee, if any. d +he illegitimate sons4daughters, ten (15 years of age or o$er, of the adopter if li$ing with said adopter and the latterEs spouse, if any. e +he spouse, if any, of the person adopting or to be adopted. %.3 Frder for hearing -f the petition and consent are sufficient in form and substance, and a fa$orable case study has been made, as hereafter mentioned, the court, by an order, shall fi1 the date and place of the hearing which shall not be more than si1 (* months after the issuance of the order. [Rule 22, Section %!


Page 24

%.% #ublication of order +he order shall direct that a copy thereof be published before the hearing once a week for three (3 successi$e weeks in a newspaper of general circulation in the pro$ince. %.( .ase study :o petition for adoption shall be set for hearing unless a licensed social worker of the )epartment, the social ser$ice office of the local go$ernment unit, or any child-placing or child-caring agency has made a case study of the adoptee, his4her biological parent(s , as well as the adopter(s , and has submitted the report and recommendations on the matter to the court. %.* Dirth registration 3t the time of preparation of the adopteeEs case study, the social worker concerned shall confirm with the .i$il Registry the real identity and registered name of the adoptee. -f the birth of the adoptee was not registered with the .i$il Registry, the social worker shall ensure that the adoptee is registered. %., &egally a$ailable +he case study shall establish that the adoptee is legally a$ailable for adoption and that the documents to support this fact are $alid and authentic. 7urther, the case study of the adopter shall ascertain his genuine intentions and that the adoption is in the best interest of the child. %./ -nter$ention by )CS) +he )CS) shall inter$ene on behalf of the adoptee if it finds, after the case study, that the petition should be denied. +he case studies and other rele$ant documents and records pertaining to the adoptee and the adoption shall be preser$ed by the )epartment. [R3 /((", Section 11! %.2 Super$ised +rial .ustody :o petition for adoption shall be finally granted until the adopter4s has4ha$e been gi$en by the court a super$ised trial custody period for at least si1 (* months within which the parties are e1pected to ad9ust psychologically and emotionally to each other and establish a bonding relationship. )uring said period, temporary parental authority shall be $ested in the adopter4s. %.2.1 +he court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. 8owe$er, for alien adopters, they must complete the si1 (* -month trial custody e1cept for those enumerated in Sec.,(b (i (ii (iii . %.2." -f the child is below se$en (, years of age and is placed with the prospecti$e adopter through a pre-adoption placement authority issued by the )epartment, the prospecti$e adopter shall en9oy all the benefits to which biological parents are entitled from the date the adoptee is placed with the prospecti$e adopter. [R3 /((", Section 1"! %.15 )ecree of adoption -f, after the publication of the order of hearing, no opposition has been interposed, and after consideration of the case studies, the 'ualifications of the adopter, the trial custody report, and the e$idence submitted, the court is con$inced that the petitioners are 'ualified to adopt, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered. +he decree shall state the name by which the child is to be known [R3 /((", Section 13! which shall be effecti$e as of the date the original petition was filed. :ote; +his pro$ision shall also apply in case the petitioner dies before the issuance of the decree of adoption to protect the interest of the adoptee. Ci!il Re#istr4 Record 3n amended certificate of birth, without any notation that it is an amended issue, shall be issued by the .i$il Registry, attesting to the fact that the adoptee is the child of the adopter by being registered with his4her surname. +he original certificate of birth shall be stamped EcancelledE with the


Page 25

annotation of the issuance of an amended birth certificate in its place and shall be sealed in the ci$il registry records. [R3 /((", Section 1%! Confidenti l N ture of Proceedin#s 3ll hearings in adoption cases are confidential and shall not be open to the public. 3ll records, books, and papers relating to the adoption cases in the files of the court, the )CS), or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential. +he court may authori>e the necessary information to be released, if it is for the best interest of the adoptee and the disclosure is necessary, restricting the purposes for which it may be used. Ser!ice of *ud#ment +he 9udgment shall be ser$ed by the clerk on the ci$il registrar. C. Rescission of Ado"tion -. Grounds for Rescission Gpon petition of the adoptee, with the assistance of the )SC) if a minor or if o$er eighteen (1/ years of age but is incapacitated, as guardian4counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s [R3 /((", Section 1(!; a repeated physical and $erbal maltreatment by the adopter(s despite ha$ing undergone counselling= b attempt on the life of the adoptee= c se1ual assault or $iolence= or d abandonment and failure to comply with parental obligations. &. =ho 7 4 Bile Petition for Rescission of Ado"tion 3 minor or other incapacitated person may, through a guardian or guardian ad litem, file the petition for rescission of adoption. Gnder Rep. 3ct :o. /((", Sec. 12, adoption, being in the best interest of the child, shall not be sub9ect to rescission by the adopter(s . 8owe$er, the adopter(s may disinherit the adoptee for causes pro$ided in 3rticle 212 of the .i$il .ode. /. Time to Bile Petition +he petition must be filed within fi$e (( reco$ery from incompetency. years following attainment of ma9ority, or following

8. Procedure +he court shall issue an order re'uiring the ad$erse party to answer the petition within fifteen (1( days from receipt of a copy thereof. +he order and a copy of the petition shall be ser$ed on the ad$erse party in such manner as the court may direct. 3fter trial, if the court finds the allegations of the petition to be true, the court shall render 9udgment ordering rescission, with or without costs, as 9ustice re'uires. :. Ser!ice of 1ud#ment 3 certified copy of the 9udgment shall be ser$ed upon the ci$il registrar concerned. Cithin thirty (35 days from rendition of the 9udgment, he shall enter the action in the ci$il register. D. Inter+Countr4 Ado"tion 5Re"u,lic Act No. <?8/6: 1. 3doption by 3liens +he 7amily .ode had pro$ided that adoption by aliens of 7ilipino children, while generally prohibited by the .ode, shall be authori>ed in inter-country adoption as may be allowed by law. ". +he &aw and the -mplementing Rules and Regulations +he -nter-.ountry 3doption 3ct was thereafter passed on @une ,, 122( and took effect fifteen (1( days after publication in two (" newspapers of general circulation..+he -mplementing Rules and Regulations was passed by the -nter-.ountry 3doption Doard [-.3D! which was thereby created. +he


Page 26

implementing rules, which were patterned after the 1223 8ague .on$ention, became effecti$e on @anuary 1,, 122*. -t has been obser$ed that the implementing rules contain pro$isions which are adopted from the 8ague .on$ention but are not authori>ed by the law. 3. +he #rocess +he process of inter-country adoption refers to the process of adopting a 7ilipino child by a foreigner or by a 7ilipino citi>en permanently residing abroad where the petition is filed. +he super$ised child custody is undertaken and the decree of adoption is issued outside the #hilippines. %. 3 &egally-free .hild 7or a child to be placed under the co$erage of the -nter-.ountry 3doption &aw, he must be legallyfree which means that the child has been $oluntarily or in$oluntarily committed to the )SC) in accordance with #.). :o. *53 and the necessary documents submitted to the -.3D. (. 3dopters +he 'ualifications for adopters are more stringent than the 'ualifications for adopters in domestic adoption. 7or one, an adopter must at least be ", years of age aside from the 1*-year difference between the adopter and the adopted. *. 3pplication 3n application for inter-country adoption may be filed with the Regional +rial .ourt ha$ing 9urisdiction o$er the child or with the -.3D, through an intermediate agency in the country of the prospecti$e or adopti$e parents. ,. 7unctions of the R+. +he Regional +rial .ourt appears merely to recei$e applications from foreign adoption agencies, e$aluate and assess the 'ualifications of the proposed adopter, and pursuant to the implementing rules, the court must submit its findings and the application papers to the -.3D. +he super$ised trial custody is conducted and the decree of adoption is issued by the court in the place of the adopter abroad. /. Resident 3liens 3liens who permanently reside in the #hilippines are not 'ualified to become adopters under the -nter-.ountry 3doption 3ct. 8owe$er, under the )omestic 3doption 3ct, they are 'ualified to adopt. /.1 3rticle 1/%, 7amily .ode pro$ides that an alien cannot adopt under #hilippine law e1cept; a a former 7ilipino citi>en who seeks to adopt a relati$e by consanguinity= and b one who seeks to adopt the legitimate child of his or her 7ilipino spouse. 2. .ase rulings 2.1 Chere one of the spouses is an alien, they are dis'ualified to adopt under #hilippine laws. [Republic $s. .ourt of 3ppeals and 8ughes, 6.R. :o. 155/3(, Fctober "*, 1223! 2." 8usband and wife must 9ointly adopt. [Republic $s. +oledano, 6.R. :o. 2%1%,, @une /, 122%! 2.3 :on-resident aliens cannot adopt. [Drehm $s. Republic, 6.R. :o. &-1/(**, September 35, 12*3! (. Custod4 of 7inors A. *urisdiction 3 petition for the custody of minors is also pro$ided in Rule 22, Section 1 which pro$ides for a petition for adoption. +he petition for custody of children is now within the e1clusi$e original 9urisdiction of 7amily .ourts, as pro$ided in Republic 3ct :o. /3*2, Section ((b [7amily .ourts 3ct of 122,!.


Page 27

B. Children )nder Se!en Ee rs of A#e Gnder 3rticle "13, second paragraph of the 7amily .ode, no child under se$en years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. +his rule, howe$er, is not absolute. [ 0spiritu $s. .ourt of 3ppeals, 6.R. :o. 11(*%5, <arch 1(, 122(= Frda $s. .ourt of 3ppeals, 6.R. :o. 2"*"(, )ecember "*, 1225= &una $s. -ntermediate 3ppellate .ourt, :o. &-*/3,%, @une 1/, 12/(! C. Child A,use .omplaints on cases of unlawful acts committed against children under the .hild 3buse 3ct may be filed by [Republic 3ct :o. ,12", Section ",!; a the offended party= b parents or guardians= c ascendant or collateral relati$e within the third degree of consanguinity= d officer= e social worker or representati$e of a licensed child-caring institution= f officer or social worker of the )SC)= g barangay chairman,= or h at least three (3 concerned responsible citi>ens where the $iolation occurred. 1. #rotecti$e .ustody [Republic 3ct :o. ,12", Section "/! +he child shall be immediately placed under the protecti$e custody of the )SC) pursuant to 01ecuti$e Frder :o. (*, series of 12/*. .ustody proceedings shall be in accordance with the pro$isions of #residential )ecree :o. *53. ". Special .ourt #roceedings .ases in$ol$ing $iolations of R3 /3*2 shall be heard in the chambers of the 7amily .ourt @udge. [Republic 3ct :o. ,12", Section 35! 3. Chen parents are separated +he 'uestion as to the care, custody and control of a child or children of parents who are di$orced or separated, may be brought before a Regional +rial .ourt by petition or as an incident to any other proceeding. 3.1 3ward of custody 3fter hearing, the court shall award the care, custody and control of each child as will be for its best interest. 3." .hoice of the child +he child who is o$er ten (15 years of age, may choose which parent s4he prefers to li$e with, unless the parent so chosen is unfit to take charge of the child by reason of moral depra$ity, habitual drunkenness, incapacity, or po$erty. 3.3 Fther designations -f both parents are unfit, the court may designate other persons or an institution to take charge of the child, such as the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person. 3.% Support +he court may order either or both parents to support or help support the child, irrespecti$e of who may be its custodian. +he fact that the father has recogni>ed the child may be a ground for ordering him to gi$e support, but not for gi$ing him custody of the child. [)a$id $s. .ourt of 3ppeals, 6.R. :o. 1111/5, :o$ember 1*, 122(! 3.( ?isitation or temporary custody +he court may permit the parent who is depri$ed of care and custody to $isit the child or ha$e temporary custody thereof in an order that is 9ust and reasonable.


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3.* 3ppeal 0ither parent may appeal from an order made in accordance with the pro$isions of Rule 22, Section *. %. Special #ro$isional Remedies -n cases of $iolence among immediate family members li$ing in the same domicile or household, the law now has special pro$isional remedies. 1. Restraining Frder 3 7amily .ourt may issue a restraining order against the accused or defendant upon a $erified application by the complainant or the $ictim for relief from abuse. ". +emporary .ustody +he court may also order the temporary custody of children in all ci$il actions for their custody. 3. Support #endente &ite +he court may also order support pendente lite, including deduction from the salary and use of con9ugal home and other properties in all E. Boster C re #ro$isions on foster care are to be found in 3rticles *, to ,5, #residential )ecree :o. *53. 7oster care is to be preferred to institutional care. :o child below nine (2 years of age shall be placed in an institution. [[#) *53, 3rticle */! B. De"endent9 A, ndoned or Ne#lected Children +hese types of children are defined in #) *53, 3rticle 1%1. 3 $erified petition for their in$oluntary commitment may be filed. 1. -n$oluntary commitment 7or $arious pro$isions on the procedure for in$oluntary commitment, such as the contents of the petition, $erification, order to set time for hearing, summons, when not necessary, representation of child, duty of fiscal, hearing, commitment of child, when child may stay in his own home, termination of rights of parents, authority of person, agency or institution, change of custody, please refer to #) *53, 3rticle 1%"-1(3. ". ?oluntary commitment 7or pro$isions on $oluntary commitment [which should be in writing!, legal custody, $isitation, report, temporary custody of children, prohibited acts, report of person or institution, please refer to #) *53, 3rticles 1(%-1(2. %. Special .hildren Chen a child who appears to be mentally retarded, physically handicapped, emotionally disturbed, or mentally ill needs institutional care but his parents or guardians are opposed thereto, a petition for commitment of the child may be filed. [#) *53, 3rticle 1,,! 7or pro$isions on $enue, contents of petition, order of hearing, disposition of property or money of the committed child, children with cerebral palsy, discharge of a child 9udicially committed, discharge of child $oluntarily committed, report on conduct of child, and related pro$isions, please refer to #) *53, 3rticles 1,/ to "5%. (I. C ,e s Cor"us 1. )efinition L #lease refer to the )efinition of +erms under the -ntroduction (#art -. Notes: --llegality of restraint reckoned as of the time of filing of petition -8ierarchy of courts not applied


Page 29

-?oluntary submission to unlawful restraint renders the petition for habeas corpus moot and academic - PRELI7INARE CITATION: issued by court when it does not appear manifest or clear in the application that the detention is illegal. ". +o Chat 8abeas .orpus 01tends +he writ of habeas corpus generally e1tends to all cases of illegal confinement or detention by which a person is; a depri$ed of liberty= or b the rightful custody of a person is withheld from the person entitled thereto. [Rule 15", Section 1! +here is restraint of liberty where one is depri$ed of freedom of action, such as the freedom of locomotion. [?illa$icencio $s. &ukban, 32 #hil ,,/, 1212! +he writ of habeas corpus is no longer a$ailable to one who is already out on bail. [Macarias $s. .ru>, 6.R. :o. &-"(/22, :o$ember "2, 12*3! 3. Cho <ay 6rant the Crit [Rule 15", Section "! a Supreme .ourt, or any member thereof, on any day and at any time= or b .ourt of 3ppeals or any member thereof in the instances authori>ed by law= :ote [for a and b !; -f so granted, it shall be enforceable anywhere in the #hilippines, and may be made returnable before the court or any member thereof, or before the R+., or any 9udge thereof for the hearing and decision on the merits. c R+., or a 9udge thereof, on any day and at any time :ote; +he writ is returnable before himself and enforceable only within his 9udicial district %. Re'uisites of 3pplication [Rule 15", Section 3! +he petition must be signed and $erified either by the party for whose relief it is intended, or by some person on his behalf. -t must set forth; a +hat the person in whose behalf the application is made is imprisoned or restrained of his liberty= b +he officer or name of the person by whom he is so imprisoned or restrained= or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is ser$ed with the writ shall be deemed the person intended= c +he place where he is so imprisoned or restrained, if known= d 3 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. (. Chen Crit :ot 3llowed [Rule 15", Section %! (.1 Chen; (.1.1 +he person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or 9udge or by $irtue of a 9udgment or order of a court of record= and (.1." +he court or 9udge had 9urisdiction to issue the process, render the 9udgment, or make the order. :ote; -f the 9urisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, 9udgment, or order. (." :or shall anything in this rule be held to authori>e the discharge of a person charged with or con$icted of an offense in the #hilippines, or of a person suffering imprisonment under lawful 9udgment. *. -ssuance of the Crit [Rule 15", Section (! +he clerk of the court shall issue the writ under the seal of the court= or in case of emergency, the 9udge may issue the writ under his own hand, and may depute any officer or person to ser$e it. ,. +o Chom Crit )irected [Rule 15", Section *! ,.1 -n case of imprisonment or restraint by an officer; +o the officer. +he writ shall command him to ha$e the body of the person restrained of his liberty before the court or 9udge. ,." -n case of imprisonment or restraint by a person not an officer; +o an officer. +he writ shall command him to take and ha$e the body of the person restrained of his liberty before the court or


Page 30

9udge and to summon the person by whom he is restrained then and there to appear before said court or 9udge to show the cause of the imprisonment or restraint. /. 8ow #risoner )esignated [Rule 15", Section ,! +he 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. 2. Chere, Dy Chom, 8ow Crit Ser$ed )esignated [Rule 15", Section ,! 2.1 -t may be ser$ed in any pro$ince. 2." -t may be ser$ed by the sheriff or other proper officer, or by a person deputed by the court or 9udge. 2.3 - may be ser$ed by lea$ing the original with the person to whom it is directed and preser$ing a copy on which to make return of ser$ice. -f that person cannot be found, or has not the prisoner in his custody, then the ser$ice shall be made on any other person ha$ing or e1ercising such custody. 15. 8ow Crit 01ecuted and Returned [Rule 15", Section /! +he officer to whom the writ is directed shall; a con$ey the person restrained, and named in the writ, before the 9udge allowing the writ, or, in case of his absence or disability, before some other 9udge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or 9udge= b make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof. :ote; :o writ of habeas corpus can be disobeyed for defect of form. [Rule 15", Section 2! 11. .ontents of Return [Rule 15", Section 15! +he person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state; a Chether he has or has not the party in his custody or power, or under restraint= b -f he has the party in his custody, the authority and the true and whole cause thereof, with a copy of the writ or other process :ote; -f it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie e$idence of the cause of restraint. -f he is restrained of his liberty by any alleged pri$ate authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must pro$e such facts. [Rule 15", Section 13! c -f the party is in his custody and is not produced, particularly the nature and gra$ity of the sickness or infirmity of such party by reason of which he cannot be brought before the court d -f he has had the party in his custody and has transferred such custody to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made. :ote; +he return shall be signed by the person who makes it. -t shall be sworn to by him if the prisoner is not produced and in all other cases. +he e1ception to this rule is when the return is made and signed by a sworn public officer in his official capacity.[Rule 15", Section 11! 1". 8earing and 3d9ournments [Rule 15", Section 1" 1".1 Chen the writ is returned before one 9udge, at a time when the court is in session, he may forthwith ad9ourn the case into the court, and immediately proceed to hear and e1amine the return= 1"." unless for good cause shown the hearing is ad9ourned, in which e$ent the court or 9udge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case re'uires.


Page 31

-f the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or 9udge must be satisfied that it is so gra$e that such person cannot be produced without danger, before hearing the return. 13. Chen #erson &awfully -mprisoned Recommitted, and Chen &et to Dail [Rule 15", Section 1%! 13.1 -f it appears that the prisoner was lawfully committed, and charged with an offense punishable by death, he shall not be released or bailed. 13." -f he is lawfully imprisoned for an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or 9udge. :ote; -f he is admitted to bail, he must file a bond. -f such bond is not so filed, the prisoner shall be recommitted to confinement. 1%. Chen #risoner )ischarged -f :o 3ppeal (R 15", N1( Chen the court or 9udge has looked into the cause of the restraint, and is satisfied that he is unlawfully imprisoned he shall forthwith order his discharge. Such discharge shall not be effecti$e until a copy of the order has been ser$ed on the officer or person detaining the prisoner and the person detaining does not desire to appeal. 1(. #erson )ischarged :ot to De 3gain -mprisoned [Rule 15", Section 1,! 1(.1 3 person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court ha$ing 9urisdiction of the cause or offense. 1(." 3 person who knowingly $iolated this shall forfeit to the party aggrie$ed the sum of #1,555, to be reco$ered in a proper action and may be punished with contempt. 1*. Chen #risoner <ay De Remo$ed from Fne .ustody to 3nother [Rule 15", Section 1/! 1*.1 6rounds; a by legal process, or b when the prisoner is be deli$ered to an inferior officer to carry to 9ail, or, c by order of the proper court or 9udge, be remo$ed from one place to another within the #hilippines for trial, or d in case of fire, epidemic, insurrection, or other necessity or public calamity= and 1*." -n case of $iolation, a person who, after such commitment, makes, signs, or countersigns any order for such remo$al contrary to this section, shall forfeit to the party aggrie$ed the sum of #1555, to be reco$ered in a proper action. CASES ON CABEAS CORP)S Moncupa v. Enrile Facts: Moncupa et al were arrested & detained. He was alleged to be a National Democratic Font staff member. A Presidential Commitment Order (PCO was issued !s. t"em. After # separate in!estigations$ it was ascertained t"at Moncupa was not a member of an% sub!ersi!e organi&ation. 'ot" in!estigators recommended "is prosecution onl% for illegal possession of firearms & sub!ersi!e documents. ("e petitioners) motions for bail were deined. *espondents claim t"at t"e pri!ilege of t"e writ of HC "ad been suspended as to Moncupa & filed a M(D stating +,ince t"e pet. is free & no longer under t"e custod% of t"e resps.$ t"e present petition for HC ma% be deemed moot & academic as in similar cases.Held: Moncupa ma% "a!e been released fr. "is detention cell$ but t"e restraints attac"ed to "is temporar% release preclude freedom of action & under t"e .illa!icencio !. /u0ban rule warrant t"e Court)s relie!ing "im of suc" restraints as ma% be illegal. 1t is not p"%sical restraint alone w2c is in3uired into b% t"e writ of "abeas corpus. ("e principle is clear. A release t"at renders a pet. for a 4HC moot & academic must be one w2c is free fr. in!oluntar% restraints. 4"ere a person continues to be unlawfull% denied one or more of "is constitutional freedoms$ w"ere t"ere is present a denial of due process$ w"ere t"e restraints are not merel% in!oluntar% but appear to be unnecessar%$ & w"ere a depri!ation of freedom originall% !alid "as$ in t"e lig"t of subse3uent de!)ts.$ become arbitrar%$ t"e person concerned or t"ose appl%ing in "is be"alf ma% still a!ail t"emsel!es of t"e pri!ilege of t"e writ. Toyoto, et al. V. Ramos Facts: Petitioners temporaril% released fr. detention. ,o$ does writ lie5


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Held: Ordinaril%$ a pet. for HC becomes mute & epidemic ("e "e w"en t"e restraint on t"e libert% of t"e pets. 1s lifted eit"er temporaril% or permanentl%. 'ut t"e instant case presents a diff. situation. ("e 6 to be resol!ed is w"et"er t"e ,tate can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. ,uc" a reser!ation is repugnant to t"e go!ernment of laws & not of men principle. 7nder t"is principle t"e moment a person is ac3uitted on a crim c"arge "e can no longer be detained or re8arrested for t"e same offense. Alimpoos v. CA Facts9 *e%naldo Mos3uito "as been accused of *obber% w2 less ,erious P"%sical 1n:uries. He was detained b% !irtue of a warrant of arrest w"ic" was issued wit"out t"e obser!ance of t"e legal re3uirements for t"e issuance t"ereof. Mos3uito filed a petition for Habeas Corpus before t"e (rial Court. Mos3uito named as defendants in t"e case t"e Pro!. Fiscal and t"e pri!ate offended parties. "e also filed a claim for damages premised on Arts. ;# (< and ot"er applicable pro!isions of t"e Ci!il Code. Issues9 =. 4ON t"e writ of Habeas Corpus if t"e proper remed% for Mos3uito5 #. 4ON damages ma% be awarded in a Habeas Corpus case5 ;. 4ON pri!ate offended part% ma% ta0e part in t"e case5 Held9 =. ("e 4HC is not t"e proper remed%. 4"en a warrant of arrest is being assailed for improper preliminar% in!estigation$ t"e remed% is a petition to 3uas" t"e warrant of arrest or petition for rein!estigation of t"e case. 1t is t"e gen. rule t"at a HC s"ld. not be resorted to w"en t"ere is anot"er remed% a!ailable. #. No. Damages cannot be awarded. ("e sole function of t"e writ is to relie!e fr. unlawful imprisonment and ordinaril% it cannot be properl% used for anot"er purpose. ;. 4"ile t"e issuance of t"e writ connotes t"e commencement of a ci!il action$ t"e proceedings for HC is tec"nicall% not %et a suit bet. pri!ate parties. ("e proper part% is t"e C"ief of Police or t"e person "a!ing t"e accused in detention and not t"e pri!ate offended part%. 1t is also onl% t"e fiscal w"o ma% appeal t"e order granting t"e writ as mandated b% ,ec. => *7/? <= of t"e *OC. Salvana v. Saliendra Facts9 ,al!ana and ,aliendra are t"e parents of =@ %ear old Felicisima ,al!ana. ("e minor is presentl% in t"e custod% of a :ustice of peace. ("e parents filed a petition for 4HC to regain parental aut"orit% o!er t"e minor. ("e pet. was denied on t"e ground t"at t"e parents are guilt% of abusing t"eir c"ild b% forcing "er to marr% anot"er against t"e "er wis"es. Issue9 4ON 4HC s"ould issue5

Held9 1t s"ould issue. A 4HC is t"e proper legal remed% to enable parents to regain t"e custod% of a minor daug"ter e!en t"oug" t"e c"ild is in custod% of a ;rd person of "er O4N F*?? 41//. Neit"er t"e fact t"at t"e parents soug"t to compel "er to marr% against "er wis"es a legal ground for depri!ing parents t"eir parental aut"orit% o!er t"e c"ild as to den% t"em t"e rig"t. S ARE! VS. CA Facts: *espondent Manese filed a petition for writ of HC !s. petitioner *enato ,uare&$ "is mot"er & sister. ,"e filed a motion to dismiss wit"out pre:udice to "er rig"t to file anot"er action for custod% of minor$ contending t"at t"e issue as to w"o "as rig"tful custod% of t"e c"ild could be full% ad:udicated in anot"er action and not in t"e present action for HC. (C granted motion but wit" pre:udice. Issue: 4ON order of dismissal wit" pre:udice is res :udicata to present action for custod% of minor & support Held: ("e order of dismissal cannot be considered as a !alid ad:udication on t"e merits w"ic" would ser!e as a bar to t"e second action for custod% of minor. (C dismissed t"e case wit"out stating t"e reasons or t"e basis t"erefore$ contrar% to t"e constitutional mandate t"at decisions rendered b% t"e court must clearl% & distinctl% state t"e law & facts on w"ic" it is based. 1t is wort"% to note t"oug" t"at t"e ground upon w"ic" t"e motion to dismiss was filed was erroneous since t"e 3uestion as to w"o s"all "a!e custod% of t"e c"ild can be sufficientl% resol!ed in t"e petition for writ of HC pursuant to *ule =A#$ *OC. ("e contro!ers% in t"e instant case in!ol!es a litigation initiated b% t"e natural mot"er o!er t"e welfare & custod% of "er c"ild$ in w"ic" t"e ,tate "as a paramount interest. ("e fundamental polic% in t"e Constitution promoting & protecting t"e welfare of c"ildren s"ould not be disregarded b% a mere tec"nicalit% in resol!ing disputes w"ic" in!ol!e t"e famil% & %out". "A#VE! VS. CA Facts: ("ree separate information (= "omicide$ # frustrated "omicide were filed !s. Bal!e& (incumbent ma%or of one of t"e towns in 'ulacan ... Peter$ don)t follow "is footsteps$ OC5 for t"e alleged s"ooting of t"e .inculados. ,aid infos. were later wit"drawn in a Motion b% t"e prosecutor$


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but on t"e same da%$ filed four separate information (same t"ree plus illegal possession of firearms . Dudge ordered t"e arrest of t"e petitioners since no bail was recommended. Issue: 4ON petition for HC was properl% filed toget"er wit" t"e present petition for certiorari and mandamus Held: 4rit of HC and certiorari ma% be ancillar% to eac" ot"er w"ere necessar% to gi!e effect to t"e super!isor% powers of t"e "ig"er courts. ("e writ reac"es t"e bod% & :urisdictional matters w"ile certiorari reac"es t"e record. 'ut HC does not lie w"ere pet. "as t"e remed% of appeal or certiorari because it will not be permitted to perform t"e functions of a writ of error or appeal for t"e purpose of re!iewing mere errors or irregularities in t"e proceedings of a court "a!ing :urisdiction o!er t"e person & sub:ect matter. 4rit cannot be granted in t"e case at bar since petitioners failed to adduce an% :ustification or eEceptional circumstances w"ic" would warrant t"e grant of suc" writ. HC is not ordinaril% a!ailable in ad!ance of trial to determine :urisdictional 3uestions t"at ma% arise. 1n t"e absence of eEceptional circumstances$ t"e orderl% course of trial s"ould be pursued & t"e usual remedies eE"austed before t"e writ ma% be in!o0ed. Petition for HC is not t"e appropriate !e"icle for asserting a rig"t to bail or !indicating its denial. $E%$#E VS. FI" ER%A FACTS: ("e accused were found b% t"e P"ilippine Na!% off t"e pro!ince of Palawan wit" untaEed blue8seal cigarettes in t"eir possession. ("e% were broug"t to Manila and in!estigated. During t"is preliminar% in!estigation$ eac" of t"e accused eEecuted affida!its and wai!ed t"eir rig"ts under Art. =#@ of t"e *PC (arbitrar% detention . On recommendation of t"e Manila fiscal$ t"e accused were broug"t bac0 to Palawan and anot"er preliminar% in!estigation was "eld$ allegedl% for t"e purpose of +affirm(ing t"e trut" of t"e sworn statements.- ("is time$ "owe!er$ t"e accused declined counsel and readil% affirmed t"eir pre!ious affida!its. ("eir counsel filed a M(6$ claiming t"at t"e information was filed wit"out a preliminar% in!estigation and$ if t"ere was$ it was "eld in Manila and not Palawan w"ere t"e alleged crime was committed. ("e lower court granted t"e M(6$ "olding t"at t"e preliminar% in!estigation was conducted +"urriedl%-. ISS E: 4ON t"e trial court correctl% dismissed t"e information based on t"e lac0 of preliminar% in!estigation. HE#&: NO. Assuming t"at t"e trial court felt t"at t"e accused s"ould "a!e been gi!en more +ample c"ance and opportunit% to be "eard in t"e preliminar% in!estigation-$ w"at it s"ould "a!e properl% done was not to dismiss t"e information but to "old t"e case in abe%ance and conduct its own in!estigation or re3uire t"e fiscal to "old a rein!estigation. ("e absence of suc" in!estigation did not impair t"e !alidit% of t"e information or ot"erwise render it defecti!e. Muc" less did it affect t"e :urisdiction of t"e lower court o!er t"e case. E'RI#E VS. SA#A!AR FACTS: Duan Ponce ?nrile$ Bregorio Honasan$ and t"e Panlilio spouses were arrested b% PNP agents on a warrant of arrest issued b% Dudge ,ala&ar. ("e% were denied bail$ none being recommended in t"e information w"ic" c"arged t"em wit" t"e crime of rebellion wit" murder and multiple frustrated murder allegedl% committed during t"e failed coup attempt of Dec. =>>A. ?nrile and t"e Panlilios filed t"is petition for "abeas corpus$ in!o0ing denial of t"e constitutional rig"t to bail. ISS E: 4ON a petition for "abeas corpus is t"e appropriate !e"icle for asserting a rig"t to bail or !indicating its denial. HE#&: NO. ("e criminal case before Dudge ,ala&ar was t"e normal !enue for in!o0ing t"e petitioner)s rig"t to "a!e pro!isional libert% pending trial and :udgment. ("e correct course was for petitioner to in!o0e t"at :urisdiction b% filing a petition to be admitted to bail$ claiming a rig"t to bail per se b% reason of t"e wea0ness of t"e e!idence against "im. Onl% after t"at remed% was denied b% t"e trial court s"ould t"e re!iew :urisdiction of t"e ,upreme Court "a!e been in!o0ed$ and e!en t"en$ not wit"out first appl%ing to t"e Court of Appeals if appropriate relief was also a!ailable t"ere. ("e Court will no longer countenance pleas li0e t"e present t"at clearl% s"ort8circuit t"e :udicial process and burden it wit" t"e resolution of issues properl% wit"in t"e original competence of t"e lower courts. $ARE&ES VS. SA'&I"A'(A)A' FACTS: A criminal complaint was filed against Bo!ernor Paredes for !iolation of t"e Anti8Braft and Corrupt Practices Act. A preliminar% in!estigation was "eld but t"e summons for Paredes to appear t"erein did not reac" "im. An information was subse3uentl% filed and a warrant of arrest issued against Paredes. He now petitions for "abeas corpus on t"e ground t"at t"e preliminar% in!estigation was in!alid and t"at t"e offense "as prescribed. ISS E: 4ON t"e circumstances constitute !alid grounds for t"e issuance of a writ of "abeas corpus. HE#&: NO. ("e absence of a preliminar% in!estigation does not affect t"e court)s :urisdiction o!er t"e case nor impair t"e !alidit% of t"e information or ot"erwise render it defecti!e. ("e remed% of t"e accused in suc" a case is to call t"e attention of t"e court to t"e lac0 of a preliminar% in!estigation and demand$ as a matter of rig"t$ t"at one be conducted. ("e court$ instead of dismissing t"e information$ s"ould merel% suspend t"e trial and order t"e fiscal to conduct a preliminar% in!estigation.


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("e defense of prescription of t"e offense s"ould be pleaded in t"e criminal action$ ot"erwise it would be deemed wai!ed. 1t is a proper ground for a motion to 3uas" w"ic" s"ould be filed before t"e arraignment of t"e accused for w"et"er t"e crime ma% still be prosecuted and penali&ed s"ould be determined in t"e criminal case not in a special proceeding of "abeas corpus. All 3uestions w"ic" ma% arise in t"e orderl% course of a criminal prosecution are to be determined b% t"e court to w"ose :urisdiction t"e defendant "as been sub:ected b% t"e law$ and t"e fact t"at a defendant "as a good and sufficient defense to a criminal c"arge on w"ic" "e is "eld will not entitle "im to "is disc"arge on "abeas corpus. I#A"A' V. E'RI#E Facts: Att%. 1lagan was arrested in Da!ao Cit% & detained on t"e basis of a mission order allegedl% issued b% t"e Ministr% of Nat)l. Defense. He was !isited b% =@ law%ers fr. 1'P Da!ao C"apter. One of t"e !isitors was also arrested & detinaed on t"e basis of an unsigned MO. After se!eral da%s$ anot"er 1'P member was arrested. Petitioners argue t"at t"e arrests were illegal & !iolati!e of t"e Consti$ since arrests cannot be made on t"e basis of mission orders. *esps. Answered t"at t"e 4rit was suspended as to t"em b% !irtue of Proc. F#A<@8A. Held: 1F t"e detained att%s. 6uestion t"eir detention bec. of improper arrest$ or t"at no prelim in! "as been conducted$ t"e remed% is not a pet. for a writ of HC but a Motion for t"e (C to 3uas" t"e 4arrant of Arrest$ &2or t"e info on grounds pro!ided b% t"e rules or to as0 for an in!estigation2 rein!estigation of t"e case. ("is pet. is now mood & academic bec. of criminal c"arges for rebellion filed !s. t"e law%ers. #una v. $la*a Facts9 ,upporting t"e complaint for murder were sworn statements of prosecution witness in t"e form of 6 & A ta0en b% t"e PC in!estigator$ & subscribed & sworn to before t"e resp. Dudge at t"e time of filing comp. Dudge read to t"e proecution witnesses t"e 6 & A. ("is was "ow "e eEamined t"em. ("e latter declared t"at t"eir answers were true$ freel% & !oluntaril% made$ & t"at t"e% full% understood t"e 6 & A & were willing to sign t"eir respecti!e affida!its. Dudge issued warrant of arrest. Pet. filed writ for certiorari on t"e ground t"at "e was depri!ed of libert% w2o due process since t"e imprisonment & detention was t"e result of a 4OA issued b% resp. :udge in !iolation of law since t"e eEam was not reduced to in writing in t"e form of searching Q & A. Dudge claims substantial compliance. Held: ("ere was substantial compliance. ("e eEistence of probable cause depends to a large degree upon t"e finding or opinion of t"e :udge conducting t"e eEam. *A ;G#G does not pro"ibit t"e Mun Dudge fr. adopting t"e 3uestions as0ed b% t"e pre!ious in!estigator. ("e term +searc"ing 6 & A- means onl% ta0ing into consideration t"e purpose of t"e prelim eEam$ w2c is to determine +w"et"er t"ere is a reasonable ground to belie!e t"at an offense "as been committed & t"e accused is probabl% guilt% t"ereof so t"at a warrant of arrest ma% be issued & t"e accused be "eld for trial$ suc" 6)s "a!ing tendenc% to s"ow t"e commission of t"e crime & t"e perpetrator. (II. Esche ts 3. )efinition L #lease see #art D. #rocedure 1. Chen 7iled; 3 petition to escheat property is filed when a person dies intestate, lea$ing behind real or personal property but without an heir. [Rule 21, Section 1! ". Cho 7iles #etition; +he petitioner is the Solicitor 6eneral or his representati$e in behalf of the Republic of the #hilippines. [Rule 21, Section 1! 3. Chere filed; +he petition is filed in the Regional +rial .ourt where the deceased last resided or in which he had property if he resided out of the #hilippines. [Rule 21, Section 1! %. .ontents of the petition; +he petition shall set forth the facts and pray that the estate of the deceased be declared escheated. [Rule 21, Section 1! (. Frder of 8earing +he court shall fi1 a date and place for the hearing of the petition, which date shall not be more than si1 (* months after the rendition of the order. [Rule 21, Section "! *. #ublication +he order shall also direct that a copy thereof shall be published at least once a week for si1 (* successi$e weeks in some newspaper of general circulation in the pro$ince as the court deems best. [Rule 21, Section "! ,. @udgment


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3fter hearing, the court shall ad9udge the properties escheated after payment of 9ust debts and charges, and the properties shall be assigned pursuant to law as follows; ,.1 +he personal estate shall be assigned to the municipality or city where the deceased last resided in the #hilippines. ,." +he real estate shall be assigned to the municipalities or cities, respecti$ely, in which the same is situated. ,.3 -f the deceased ne$er resided in the #hilippines, the whole estate may be assigned to the respecti$e municipalities or cities where the same is located. ,.% Such estate shall be for the benefit of public schools, and public charitable institutions and centers in said municipalities or cities. :ote; +he court may order the establishment of a permanent trust so that only the income from the property shall be used. [Rule 21, Section 3! /. .laim Cithin 7i$e Kears [Rule 21, Section %! -f a person entitled to the estate escheated appears and files a claim with the court within fi$e (( years from the date of the 9udgment, he shall obtain possession and title to the property. -f it has already been sold, the municipality or city shall be accountable to him for the proceeds, after deducting e1penses for the care of the estate, but a claim not made with said time shall be fore$er barred. C. Other ctions for esche t $Rule >-9 Section :' 3ctions for re$ersion or escheat of properties alienated in $iolation of the .onstitution or of any statute shall be go$erned also by Rule 21, e1cept that the action shall be instituted in the pro$ince where the land lies in whole or in part. (II. Ch n#e of N me A. N me Defined 3 name is that word or combination of words by which a person is distinguished from others and which he bears as a label or appellation for the con$enience of the world at large in addressing him or in speaking of or dealing with him. [Ku $s. Republic, 6.R. :o. "5/,%, <ay "(, 12**! B. Procedure 1. ?enue +he petition shall be filed in the R+. (.7- of the place of residence of the person desiring to change his name. [Rule 153, Section 1! ". Cho <ay #etition for a .hange of :ame ".1 3 minor may sign and $erify his petition for a change of name sub9ect to the re'uired assistance of a guardian ad litem, although the absence of the latter does not $oid the proceeding because it is amendable. [+se $s. Republic, 6.R. :o. "5,5/, 3ugust 31, 12*,! "." Resident aliens may also petition for a change of name. 3 nonresident alien may not a$ail himself of the same right= such a proceeding would not be of much benefit to him. [Fng 8uan +in $s. Republic, 6.R. :o. "522,, 3pril ",, 12*,! Dut the petition will not be entertained if petitionerAs citi>enship is either contro$erted or doubtful. [Dasas $s. Republic, 6.R. :o. "3(2(, 7ebruary "5, 12*/! 3. #etition +he petition shall be signed and $erified by the person desiring his name changed or some other person on his behalf. -t shall set forth; [Rule 153, Section "! a that he is a bona fide resident of the region (pro$ince for at least three (3 years= b the cause for the change of name= c the name asked for %. 8earing


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%.1 +he hearing [shall not be within thirty (35 days prior to an election nor within four (% months after the last publication of the notice! is held after notice and publication [at least once a week for three (3 successi$e weeks in some newspaper of general circulation published in the pro$ince!. [Rule 153, Section 3! %." 3ny interested person may appear at the hearing and oppose the petition. +he Solicitor 6eneral or the proper pro$incial or city fiscal shall appear on behalf of the 6o$ernment of the Republic. [Rule 153, Section %! %.3 +he inclusion in the title of the petition for change of name and in the published order of the name sought to be authori>ed, is 9urisdictional. [6o $s. Republic, 6.R. :o. &-31,*5, <ay "(, 12,,! C. C se Rulin#s 1. @oinder of .auses of 3ction #etitions for adoption and change of name cannot be 9oined. +hey are not the same in nature and character nor do they present common 'uestions of law and fact. [Republic $s. 8ernande>, 6.R. :o. 11,"52, 7ebruary 2, 122*! ". Resumption of Gse of <aiden :ame 3fter )i$orce +he resumption by the wife of her maiden name after a <uslim di$orce, is not change of name under Rule 153. +he proceeding filed to resume the use of the maiden name is a superfluity but it is directory. [Kasin $s. @udge, ShariAa )istrict .ourt, 6.R. :o. 2%2/*, 7ebruary "3, 122(! 3. 3bsence of .ause :o proper and reasonable cause has been shown in the petition for a change of name from ?icencio to Ku. -n fact, confusion is likely. 3doption is re'uired. [Republic $s. .ourt of 3ppeals, 6.R. :o. //"5", )ecember 1%, 122/! %. .auses for .hange of :ame 3 %,-year old resident of +acloban .ity, named 8aw &iong, wanted to change his name to 3lfonso &antin, as he would soon be a 7ilipino. +he Supreme .ourt, howe$er, held that there was no compelling reason for the change of name. 3ccording to the .ourt, what may be considered, among others, as proper and reasonable causes that may warrant the change are; (1 when the name is ridiculous, tainted with dishonor, or is e1tremely difficult to write or pronounce= (" when the re'uest for change is a conse'uence of a change of status, such as when a natural child is acknowledged or legitimated= and (3 when the change is necessary to a$oid confusion. [8aw &iong $s. Republic, 6.R. :o. "112%, 3pril "%, 12**! (. 0rasing signs of former nationality #etitioner was born in 8ong Bong and came to the #hilippines as a Dritish sub9ect. 8e became a naturali>ed 7ilipino. +he .ourt of 3ppeals found that the e$idence established sufficient 9ustification for petition for change of name, i.e., a sincere desire to adopt a 7ilipino name Benneth Biana So, to erase signs of his former nationality which will unduly hamper his social and business life= his change of name will do away with his many aliases which should be discouraged, apart from the fact that it will a$oid confusion and will be for the con$enience of the world at large in addressing him or in speaking of or dealing with him. [Republic $s. -ntermediate 3ppellate .ourt, 6.R. :o. &-,5(13, Fctober 13, 12/*! *. Resulting confusion &egitimate minor children were not allowed to adopt the surname of the motherAs second husband, because there would be a false impression of their family relations, as it could result in confusion in their paternity. [#adilla $s. Republic, :o. &-"/",%, 3pril 35, 12/"! ,. -mpro$ing personality or social standing Fn the other hand, a natural child through her mother petitioned for a change of name to adopt the surname of her stepfather. +he Solicitor 6eneral argued that this would hide the childAs illegitimacy.


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+he Supreme .ourt held that there was nothing wrong with it, and that a change of name may be asked to impro$e oneAs personality or social standing and to promote his best interests as long as in9ury or pre9udice is not caused to anyone. [.alderon $s. Republic, 6.R. :o. 1/1",, 3pril (, 12*,! /. &egitimate minor child 3 legitimate minor child may not also be allowed to change his surname from that of a father who was a fugiti$e from 9ustice to that of his mother. +here will be confusion as to parentage as it might create the impression that the minors were illegitimate since they would carry the maternal surname only, which is inconsistent with their legitimate status in their birth records. [:aldo>a $s. Republic, 6.R. :o. &-(((3/, <arch 1(, 12/"! IF. A,sentees 3. Dasic .oncepts 1. #ro$isional Representati$e Chen a person disappears without lea$ing an agent behind, an interested party, relati$e or friend, may file a petition before the R+. (.7- of the last place of residence of the person who disappeared to appoint pro$isionally a representati$e for him. [Rule 15,, Section 1! ". #rocedure ".1 3fter two (" years without any news or after fi$e (( years, if an agent was left to administer his property, a petition for declaration of absence and appointment of a trustee or administrator may be filed for by [Rule 15,, Section "!; a the spouse present= b the heirs instituted in a will, who may present an authentic copy of the same= c the relati$es who would succeed by the law of intestacy= and d those who ha$e o$er the property of the absentee some right subordinated to the condition of his death "." .ontents of the #etition [Rule 15,, Section 3! a the 9urisdictional facts= b the names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relati$es who would succeed by the law of intestacy= c the names and residences of creditors and others who may ha$e any ad$erse interest o$er the property of the absentee= d the probable $alue, location and character of the property belonging to the absentee. ".3 +he court shall then fi1 a date and place for the hearing. :otice [at least ten (15 days before the hearing! and publication [once a week for three (3 consecuti$e weeks in a newspaper of general circulation in the pro$ince or city where the absentee resides! are re'uired. [Rule 15,, Section %! ".% 3t the hearing, compliance with the pro$isions of Section % must first be shown. Gpon issuance of an order granting the petition, the 9udge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representati$e, trustee or administrator, regulating them by the rules concerning guardians. [Rule 15,, Section *! ".( -n case of declaration of absence; +he order shall not take effect until si1 (* months after its publication a in a newspaper of general circulation designated by the court= and b in the Ffficial 6a>ette. 3. #references [Rule 15,, Section ,! +he court may appoint as trustee or administrator or pro$isional representati$e; a the spouse of the missing person if they are not legally separated or if the spouse is not a minor or otherwise incompetent= or, in default of the spouse, b any competent person. %. +ermination [Rule 15,, Section /! +he appointment shall be terminated;


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a if the absentee appears personally or by agent= b when death is pro$ed and the heirs appear= or c when a third person ac'uires the property of the absentee. (. 3 wife filed a petition to declare her missing husband absent and presumed dead. Dut he left no property. 80&); +here is no need for the petition. [Reyes $s. 3le9andro, :o. &-3"5"*, @anuary 1*, 12/*! 3 declaration of presumption of death can ne$er be final. [@ones $s. 8ortiguela, *% #hil 1,2, 123,! -?. C ncell tion or Correction of Entries in the Ci!il Re#istr4 Rule 15/ R3 25%/ 1. Sub9ect matter 3ny act, e$ent, order or decree .lerical or typographical errors concerning the ci$il status of e1cept those in$ol$ing change in persons which had been nationality, status or se1 of recorded in the ci$il register person ". 8ow initiated Dy a petition Dy an affida$it 3. Chere filed R+. where the local ci$il <unicipality4.ity .i$il Registrar= register is located #hilippine .onsul of the place where the interested person is residing %. :ature of proceedings Summary in nature if the 3dministrati$e correction is clerical or typographical only (. Role of the Solicitor +he Solicitor 6eneral is made a +he Solicitor 6eneral is not 6eneral party. made a party. *. :ecessity of a hearing 8earing is necessary. Fnly an in$estigation may be conducted. ,. -ssuance of a #reliminary in9unction may be :o preliminary in9unction can be preliminary in9unction issued. issued. /. 3ppeal +o higher courts +o the .i$il Register 6eneral [.R6! 2. 7inality of decision )ecision becomes final after )ecision becomes final after ten fifteen (1( days from receipt (15 days from receipt of .R6 of 9udgment. or by the aggrie$ed petitioner on the affirmation of denial by the .i$il Register 6eneral 15. Ser$ice of 9udgment @udgment is ser$ed on the .i$il )ecision is entered directly into Registrar and entered into the the ci$il register. ci$il registry book. 1. Cho <ay 7ile the #etition for the .ancellation or .orrection of any 0ntry Relating thereto 3ny person interested in any act, e$ent, order or decree concerning the ci$il status of persons Chich has been recorded in the ci$il register, may file a $erified petition. [Rule 15/, Section 1! ". 0ntries Sub9ect to .ancellation or .orrection [Rule 15/, Section "! a births= b marriages= c deaths= d legal separations= e 9udgments of annulments of marriage= f 9udgments declaring marriages $oid from the beginning= g legitimations= h adoptions= i acknowledgments of natural children= 9 naturali>ation


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k election, loss or reco$ery of citi>enship l ci$il interdiction= m 9udicial determination of filiation= n $oluntary emancipation of a minor= and o changes of name. :ote; +he errors that can be corrected in mere summary proceedings are clerical or typographical errors. -f the error is substantial or material one, the same can be corrected by a court 9udgmentO pro$ided that the action is not summary in nature. [<atias $s. Republic, &"*2/", <ay /, 12*2! 3 clerical error is one which is $isible to the eye or ob$ious to the understanding= an error made by a clerk or a transcriber= a mistake in copying of writing [Dlack $s. Republic, &-15/*2, :o$. "/, 12(/! 3. #arties [Rule 15/, Section 3! a the ci$il registrar= and b all persons who ha$e or claim any interest which would be affected thereby %. :otice and publication [Rule 15/, Section %! +he court shall; a by an order, fi1 the time and place for the hearing of the same= b cause reasonable notice thereof to be gi$en to the persons named in the petition= c cause the order to be published once a week for three (3 consecuti$e weeks in a newspaper of general circulation in the pro$ince (. Fpposition [Rule 15/, Section (! +he a ci$il registrar= and b any person ha$ing or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (1( days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. ;. Rules -?/ nd -?< Distin#uished Rule 153 1. ?enue Residence of the petitioner ". #arties +he Solicitor 6eneral must be notified by ser$ice of a copy of the petition. Rule 15/ #lace where the ci$il registry is located +he .i$il Registrar concerned is made a party to the proceedings as respondent.

PETITION BOR CCANGE OB BIRST NA7E AND GENDER C se: Sil!erio !. RP9 GR No. -%8;<>9 Octo,er &&9 &??% In this case, SC denied the petition for change of first name and sex in the birth certificate of petitioner Silverio who was born male and underwent gender reassignment in 2001. The court declared that there is no special law that governs sex reassignment and its effects. hile petitioner ma! have succeeded in altering his bod! and appearance through intervention of modern surger!, no law authori"es the change of entr! as to sex in the civil registr! for that reason. FII. Trustees 1. )efinition L #lease refer to #art ". Chere +rustee 3ppointed [Rule 2/, Section 1! ".1 -f the will is allowed in the #hilippines; R+. in which the will was allowed. "." -f the will is allowed in a foreign country; R+. of the pro$ince in which the property, or some portion thereof, affected by the trust is situated 3. 3ppointment and #owers of +rustee under Cill [Rule 2/, Section "! -f a testator has omitted in his will to appoint a trustee in the #hilippines, and if such appointment is necessary to carry into effect the pro$isions of the will, the proper R+. may, after notice to all persons interested, appoint a trustee who shall ha$e the same rights, powers, and duties, and in whom the estate shall $est, as if he had been appointed by the testator.


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:ote; :o person succeeding to a trust as e1ecutor or administrator of a former trustee shall be re'uired to accept such trust. :. Ne2 Trustee under =ritten Instrument $Rule ><9 Section /' (.1 Re'uisites for appointment a 3 trustee under a written instrument declines, resigns, dies, or is remo$ed before the ob9ects of the trust are accomplished= b :o ade'uate pro$ision is made in such instrument for supplying the $acancy= c )ue notice is gi$en to all persons interested. (." #owers of a new trustee Jsame powers, rights, and duties as if he had been originally appointed, +he trust estate shall $est in him in like manner as it had $ested or would ha$e $ested, in the trustee in whose place he is substituted. *. #roceedings where +rustee 3ppointed 3broad [Rule 2/, Section %! *.1 +he trustee shall file a petition in the R+. of the pro$ince where the land is situated, and after due notice to all persons interested, be ordered to apply to the court for appointment as trustee. *." Gpon neglect or refusal to comply with the order, the court shall declare such trust $acant and shall appoint a new trustee in whom the trust estate shall $est in like manner as if he had been originally appointed by the court. ,. Dond [Rule 2/, Sections ( and *! ,.1 6eneral Rule; +rustee must file bond. 01ceptions; a when the testator has directed or re'uested such e1emption= and b when all persons beneficially interested in the trust, being of full age, re'uest the e1emption. :ote; Such e1emption may be cancelled by the court at any time and the trustee re'uired to forthwith file a bond. ,." .onditions included in bond a make a true in$entory of all the real and personal estate belonging to him as trustee= :ote; +he court may dispense with the making and return of an in$entory when the trustee is appointed as a successor to a prior trustee, if an in$entory has already been filed. [-n such case the condition of the bond shall be deemed to be altered accordingly.! b manage and dispose of all such estate, and faithfully discharge his trust= c render upon oath at least once a year until his trust is fulfilled, unless he is e1cused, a true account of the property in his hands and of the management and disposition thereof= d at the e1piration of his trust, settle his accounts in court and pay o$er and deli$er all the estate remaining in his hands 2. Remo$al of +rustee [Rule 2/, Section /! 2.1 #rocedure a petition of the parties beneficially interested b due notice to the trustee and hearing 2." 6rounds a +he remo$al appears essential in the interests of the petitioners. b +he trustee is insane or otherwise incapable of discharging his trust or is e$idently unsuitable. 15. +he trustee may resign his trust if it appears to the court proper to allow such resignation. [Rule 2/, Section /!


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11. Sale or 0ncumbrance of +rust 0state [Rule 2/, Section 2! Fn petition and after due notice and hearing, the court may order such sale or encumbrance to be made, and the rein$estment and application of the proceeds thereof in such manner as will best effect the ob9ects of the trust. :ote; #roceedings shall conform as nearly as may be to the pro$isions concerning the sale or encumbrance by guardians of the property of minors or other wards.

RULE105 JUDICIALAPPROVALOF VOLUNTARYRECOGNITIONOF MINORNATURALCHILDREN Sec. +. Venue.-- 4"ere :udicial appro!al of a !oluntar% recognition of a minor natural c"ild is re3uired$ suc" c"ild or "is parents s"all obtain t"e same b% filing a petition to t"at effect wit" t"e *(C in w"ic" t"e c"ild resides. 1. MEA'I'" %F V%# 'TAR) REC%"'ITI%'

.O/7N(A*H *?COBN1(1ON is an admission of t"e fact of paternit% or maternit% b% t"e presumed parent$ eEpressed in t"e form prescribed b% t"e NCC. 1ts essence lies in t"e a!owal of t"e parent t"at t"e c"ild is "isI t"e formalit% is added to ma0e t"e admission incontestable$ in !iew of its conse3uences. ("e FO*M is prescribed b% Art. #JG of t"e NCC9 *?COBN1(1ON s"all be made in t"e record of birt" a will a statement before a court of record or in an% aut"entic writing. Dudicial appro!al is needful if t"e recognition of t"e minor is effected$ not t"roug" a record of birt" or in a will but t"oroug" a statement in a court of record or an aut"entic document. 1n an% case$ t"e indi!idual recogni&ed can impugn t"e recognition wit"in < %ears following t"e attainment of ma:orit%. Art. #G= (# of t"e NCC pro!ides9 4"en t"e recognition of a minor DO?, NO( ta0e place in a *?CO*D of '1*(H or in a 41//$ Dudicial Appro!al is Necessar%. ("e action must be broug"t wit"in t"e same period specified in Art. =J;$ FC$ eEcept w"en t"e action is based on t"e second paragrap" of Art. =J#$ in w"ic" case t"e action ma% be broug"t during t"e lifetime of t"e alleged parent. Art. 173, FC. The action to claim legitimacy may be brought by the child during his or her lifetime and s"all be transmitted to t"e "eirs s"ould t"e c"ild die during minorit% or in a state of insanit%. 1n t"ese cases$ t"e "eirs s"all "a!e a period of @ %ears wit"in w"ic" to institute t"e action. ("e action alread% commenced b% t"e c"ild s"all sur!i!e notwit"standing t"e deat" of eit"er or bot" of t"e parties. Art. =J#. ("e filiation of legitimate (or illegitimate c"ildren is establis"ed b% an% of t"e following9 (= ("e *ecord of 'irt" appearing in t"e Ci!il register or a final :udgmentI or (# An admission of legitimate filiation in a public document or a pri!ate "andwritten instrument and signed b% t"e parent concerned.


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1n t"e absence of t"e foregoing e!idence$ t"e legitimate filiation s"all be pro!ed b%9 (= ("e Open and Continuous possession of t"e status of a legitimate c"ild$ or (# An% ot"er means allowed b% t"e *ules of Court and special laws. #. H%, V%# 'TAR) REC%"'ITI%' IS E-$RESSE& A7(H?N(1C 4*1(1NB means an% Benuine and indubitable writing sufficient for compulsor% recognition. ("e status of a person as a !oluntar% ac0nowledged natural c"ild +could be establis"ed b% t"e ordinar% means of e!idence wit"out an% limitations as to time.- (Larena vs. Hubio) K,ee lecture notes below.L NOTES: .9 4"en can t"e c"ild file action5 A9 ,ee Art. =J; abo!e w"ic" pro!ides w"en a c"ild ma% bring an actionI moreo!er$ t"e following NCC pro!ision w"ic"$ alt"oug" alread% repealed b% t"e Famil% Code$ ma% still be applicable for lac0 of substitute pro!isions on t"e matter. Art #G@$ NCC. ("e AC(1ON for t"e recognition of natural c"ildren ma% be brought ONL during the lifetime of the !resumed !arents, "#C"$T% &1' (f the Father)*other +("+ +,-(N. the *(NO-(T of the C/(L+, in 0)c case the latter may F(L" AC(1ON '?FO*? t"e eEpiration of < H*,. from t"e attainment of "is ma:orit% age. (# 1f AF(?* t"e D?A(H of t"e Fat"er2Mot"er a DOC7M?N( s"ould appear of w"ic" NO(H1NB "ad been H?A*D and in w2c eit"er2 bot" parents recogni&e t"e c"ild. 1n t"is case$ t"e AC(1ON must be commenced w2in < H*,. from t"e F1ND1NB of t"e document. Pls. ta0e note of t"e following NCC pro!isions w"ic"$ alt"oug" alread% repealed b% t"e FC$ ma% still be applicable for lac0 of substitute pro!isions on t"e matter. (Aut"orities said t"at Art. #G@ cited abo!e is still applicable. Commentaries and a =>G> case appl% Arts. #JG and #G=. Herrera cited Art. #G; (= $ but mentioned Art. <<> of *PC$ not NCC. 'CC//Reco0nition %1 'atural C2ildren #JM. A NA(7*A/ CH1/D ma% be recogni&ed b% t"e fat"er and t"e mot"er DO1N(/H$ or b% ON/H ON? of t"em. #JJ. 1n case t"e recognition is made b% ON/H ON? of t"e parents$ it s"all be P*?,7M?D t"at t"e c"ild is NA(7*A/$ 1F t"e parent recogni&ing "ad /?BA/ CAPAC1(H to contract marriage at t"e time of conception. #JG. *?COBN1(1ON s"all be made in t"e record of birt" a will a statement before a court of record or in an% aut"entic writing. #J>. A minor w"o ma% not contract marriage w2o parental consent (=G8#= CANNO( ac0nowledge a natural c"ild 7N/?,,


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parent2Buardian APP*O.?, t"e ac0nowledgment recoBnition is made in a 41// #GA. 4"en t"e FA(H?* or t"e MO(H?* ma0es t"e recognition ,?PA*A(?/H$ H?2,H? s"all NO( *?.?A/ t"e name of t"e person wit" w"om "e2s"e "as t"e c"ildI neit"er s"all "e2s"e ,(A(? an% C1*C7M,(ANC? w"ereb% t"e ot"er parent ma% be identified.

#G=. A c"ild w"o is OF AB? CANNO( '? *?COBN1N?D wit"out "is CON,?N(. 4"en t"e recognition of a minor DO?, NO( ta0e place in a *?CO*D of '1*(H or in a 41//$ D7D1C1A/ APP*O.A/ 1, N?C?,,A*H.

A minor can in an% case 1MP7BN t"e recognition wit"in < H*,. ff. t"e attainment of "is ma:orit%. #G#. A *?COBN1N?D natural c"ild "as t"e rig"t9 (= (o '?A* (H? ,7*NAM? of t"e recogni&ing parent (# (o recei!e ,7PPO*( from suc" parent (#>= (; (o recei!e in a proper case t"e "ereditar% portion w2c is determined b% t"is code. I'V%# 'TAR) REC%"'ITI%'9 #G;. 1n an% of t"e ff. cases$ t"e FA(H?* is O'/1B?D to recogni&e t"e c"ild as "is natural c"ild9 (= 1n cases of *AP?2A'D7C(1ON2,?D7C(1ON$ w"en t"e period of t"e offense coincides more or less wit" t"at of conceptionI (# 4"en t"e c"ild is in CON(1N7O7, PO,,?,,1ON of t"e ,(A(7, of a CH1/D of t"e alleged fat"er b% t"e D1*?C( AC(, of t"e latter or of "is FAM1/H (; 4"en t"e c"ild was CONC?1.?D during t"e time w"en t"e mot"er COHA'1(?D wit" t"e ,7PPO,?D fat"er. (< 4"en t"e c"ild HA, in "is fa!or ANH ?.1D?NC? or P*OOF t"e defendant is "is fat"er. #G<. ("e MO(H?* is O'/1B?D to recogni&e "er natural c"ild9 (= 1n an% of t"e cases in t"e preceding article$ as between t"e c"ild & t"e mot"er. (# 4"en t"e '1*(H and t"e 1D?N(1(H of t"e c"ild are C/?A*/H P*O.?N. #GM. ("e recognition made in fa!or of a c"ild w"o does not possess all t"e conditions in Art. #M>$ in w2c t"e re3uirements of t"e law "a!e not w"o are P*?D7D1C?D b% suc" recognition. or been fulfilled ma% be 1MP7BN?D b% t"ose

Sec. 3. Contents of petition.88 ("e petition for :udicial appro!al of a !oluntar% recognition of a minor natural c"ild s"all contain t"e following allegations9 (a ("e :urisdictional factsI (b ("e names & residences of t"e parents w"o ac0nowledged t"e c"ild$ or eit"er of t"em$ and t"eir compulsor% "eirs$ and t"e person or persons wit" w"om t"e c"ild li!esI (c ("e fact t"at t"e recognition made b% t"e parent or parents too0 place in a statement before a court of record or in an aut"entic writing$ cop% of t"e statement or writing being attac"ed to t"e petition.


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Sec. 4. Order for Hearing.88 7pon t"e filing of t"e petition$ t"e court$ b% an order reciting t"e purpose of t"e same$ s"all fiE t"e date and place for t"e "earing t"ereof$ w"ic" date s"all not be more t"an M mont"s after t"e entr% of t"e order$ and s"all$ moreo!er$ cause a cop% of t"e order to be ser!ed personall% or b% mail upon t"e interested parties$ and publis"ed once a wee0 for ; consecuti!e wee0s$ in a newspaper or newspapers of general circulation in t"e pro!ince. Sec. 5. Opposition.88 An% interested part% must$ wit"in =@ da%s from ser!ice$ or from t"e last date of publication of t"e order referred to in t"e neEt preceding section$ file "is opposition to t"e petition$ stating t"e grounds or reasons t"erefor.

Sec. 6. Judgment.88 1f$ from t"e e!idence presented during t"e "earing$ t"e court is satisfied t"at t"e recognition of t"e minor natural c"ild was willingl% and !oluntaril% made b% t"e parent or parents concerned$ and is for t"e best interest of t"e c"ild$

it s"all render :udgment granting :udicial appro!al of suc" recognition.

I'V%# 'TAR) REC%"'ITI%' of a natural c"ild ma% be made9

(a b% an incontro!ertible paper written b% t"e parent eEpressl% recogni&ing "is paternit%I (b b% gi!ing suc" c"ild t"e status of a natural c"ild of t"e fat"er$ :ustified b% t"e direct act of t"e fat"er or "is famil% KArt. #G;(# LI (c b% criminal action for rape$ seduction or abduction (par. #$ Art. <<>$ *PC NOTES: IMPT: .9 4"at if t"e presumed parents recogni&ed t"e minor natural c"ild eit"er !oluntaril% or in!oluntaril% wit"out :udicial appro!al and afterwards died$ s"ould t"e c"ild$ after reac"ing ma:orit% age$ as0 for :udicial appro!al of suc" recognition5 A9 NO. *e3uirement of :udicial appro!al is for t"e '?N?F1( OF (H? M1NO*. /ac0 of said DA cannot impede t"e effecti!it% of t"e :udgment made. ("e :udicial appro!al is for t"e protection of t"e minor against an% ac0nowledgment made to "is pre:udice. ("erefore$ t"e lac0 or insufficienc% of suc" appro!al is NO( a defect a!ailable to t"e recogni&ing parent but one w"ic" t"e minor ma% raise or wai!e. 1f after reac"ing t"e age of ma:orit% t"e minor consents to t"e ac0nowledgment$ t"e lac0 of :udicial appro!al s"ould ma0e no difference. Sec. 7. Service of judgment upon civil registrar.-- A cop% of t"e :udgment rendered in accordance wit" t"e preceding section s"all be ser!ed upon t"e ci!il registrar w"ose dut% it s"all be to enter t"e same in t"e register.

RULE106 CONSTITUTIONOF FAMILYHOME *ule =AM is deemed repealed b% t"e pro!isions of t"e Famil% Code. FAMILYCODE ART +63. ("e famil% "ome$ constituted :ointl% b% t"e "usband and t"e wife or b% an unmarried "ead of a famil%$ is t"e dwelling "ouse w"ere t"e% and t"eir famil% reside$ and t"e land on w"ic" it is situated.


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ART. +64. ("e famil% "ome is deemed constituted on a "ouse and lot from t"e time it is occupied as a famil% residence. From t"e time of its constitution and so long as an% of t"e beneficiaries actuall% resides t"erein$ t"e famil% continues to be suc" and is eEempt from eEecution$ forced sale or attac"ment eEcept as "ereinafter pro!ided and to t"e eEtent of t"e !alue allowed b% law. ("ere is no need to file !erified petition for constitution of famil% "ome under FC. ART. +65. ("e beneficiaries of a famil% "ome are9 ("e "usband and t"e wife$ or an unmarried person w"o is t"e "ead of a famil%I and ("eir parents$ ascendants$ descendants$ brot"ers and sisters$ w"et"er t"e relations"ip be legitimate or illegitimate$ w"o are li!ing in t"e famil% "ome and w"o depend upon t"e "ead of t"e famil% for legal support. = # ; < ART. +66. ("e famil% "ome s"all be eEempt from eEecution$ forced sale or attac"ment eEcept9 For nonpa%ment of taEesI For debts incurred prior to t"e constitution of t"e famil% "omeI For debts secured b% mortgages on t"e premises before or after suc" constitutionI and For debts due to laborers$ mec"anics$ arc"itects$ builders$ materialmen and ot"ers w"o "a!e rendered ser!ice or furnis"ed material for t"e construction of t"e building.

Mode8uillo vs. Salinas ("e debt or liabilit% w"ic" was t"e basis of t"e :udgment arose or was incurred at t"e time of t"e !e"icular accident on =M Marc" =>JM and t"e mone% :udgment arising t"erefrom was rendered b% t"e appellate court on #> Danuar% =>GG. 'ot" preceded t"e effecti!it% of t"e FC on August <$ =>GG (not August ; O=>GG being a leap %ear . ("e contention t"at it s"ould be considered a famil% "ome from t"e time it was occupied b% petitioner and "is famil% in =>M> is not well8ta0en. 7nder Art. =M# of t"e FC$ +("e pro!isionsPs"all go!ern eEisting famil% residences insofar as said pro!isions are applicable.- 1t does not mean t"at A*(,. =@# and =@; "a!e retroacti!e effect suc" t"at all eEisting famil% residences are deemed to "a!e been constituted as famil% "omes at t"e time of t"eir occupation prior to t"e effecti!it% of t"e FC and are eEempt from eEecution for t"e pa%ment of obligations incurred before t"e effecti!it% of t"e FC. Art. =M# simpl% means t"at all eEisting famil% residences at t"e time of t"e effecti!it% of t"e FC are considered famil% "omes and are prospecti!el% entitled to t"e benefits accorded to a famil% "ome. ART. +69. ("e actual !alue of t"e famil% "ome s"all not eEceed$ at t"e time of its constitution$ t"e amount of t"ree "undred t"ousand pesos in urban areas$ and two "undred t"ousand pesos in rural areas$ or suc" amounts as ma% "ereafter be fiEed b% law. 1n an% e!ent$ if t"e !alue of t"e currenc% c"anges after t"e adoption of t"is Code$ t"e !alue most fa!orable for t"e constitution of a famil% "ome s"all be t"e basis of e!aluation. For purposes of t"is Art.$ urban areas are deemed to include c"artered cities and municipalities w"ose annual income at least e3uals t"at legall% re3uired for c"artered cities. All ot"ers are deemed to be rural areas. ART. +7:. 4"en a creditor w"ose claim is not among t"ose mentioned in Art. =@@ obtains a :udgment in "is fa!or and "e "as reasonable grounds to belie!e t"at t"e famil% "ome is actuall% wort" more t"an t"e maEimum amount fiEed in Art. =@J$ "e ma% appl% to t"e court w"ic" rendered t"e :udgment for an order directing t"e sale of t"e propert% under eEecution. ("e court s"all so order if it finds t"at t"e actual !alue of t"e famil% "ome eEceeds t"e maEimum amount fiEed b% law as of t"e time of its constitution. 1f t"e increased actual !alue eEceeds t"e maE. amount and results from subse3uent !oluntar% impro!ements introduced b% t"e person2s constituting t"e famil% "ome$ b% t"e owner2s of t"e propert%$ t"e same rule and procedure s"all appl%. At t"e eEecution sale$ no bid below t"e !alue allowed for a famil% s"all be considered. ("e proceeds s"all be applied first to t"e amanita mentioned in =@J and to t"e liabilities under t"e :udgment and t"e costs. ("e eEcess$ if an%$ s"all be deli!ered to t"e :udgment creditor. RULE109


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APPEALSIN SPECIALPROCEEDINGS Section +. Orders or judgments from which appeals may be ta en. An interested person ma% appeal in special proceedings from an order or :udgment rendered b% a *(C or a Du!enile and Domestic *elations Court$ w"ere suc" order or :udgment9 (a Allows or disallows a willI (b Determines w"o are t"e lawful "eirs of a deceased person$ or t"e distributi!e s"are of t"e estate to w"ic" suc" person is entitledI (c Allows or disallows$ in w"ole or in part$ an% claim against t"e estate of a decease person$ or an% claim presented on be"alf of t"e estate in offset to a claim against itI (d ,ettles t"e account of an eEecutor$ admin$ trustee or guardianI (e Constitutes$ in proceedings relating to t"e settlement of t"e estate of a decease person$ or t"e admin of a trustee or guardian$ a final determination in t"e lower court of t"e rig"ts of t"e part% appealing$ eEcept t"at no appeal s"all be allowed from t"e appointment of a special adminI and (f 1s t"e final order or :udgment rendered in t"e case$ and affects t"e substantial rig"ts of t"e person appealing$ 7N/?,, it be an order granting or den%ing a motion for a new trial or for recon. ,ec. = (f . ("e unless clause "ere simpl% means t"at in t"ese two instances$ %ou go on appeal immediatel%. ?numeration is not eEclusi!e$ e.g.$ appro!al of bond$ declaration of incompetenc% for purposes of guardians"ip.

Mode o1 Appeal ,pec Pro8 ("e period of appeals is ;A da%s$ a record on appeal being re3uired. KNO ?Q(?N,1ONL ?Ec9 Habeas corpus cases O <G "ours. Appeals in /i3uidation Proceedings against 1nsol!ent Corp is b% *ecord on Appeal ,ince li3uidation proc against an insol!ent corp is a spec pro$ t"e appeal is b% record on appeal. *?A,ON9 se!eral claims are actuall% separate ones and a decision or final order wit" respect to an% claim can be appealed. Necessaril% t"e orig rec on appeal must remain in t"e (C w"ere ot"er claims ma% still be pending. ,2o May Appeal // Interest $erson A stranger "a!ing neit"er material nor direct interest in a testate or intestate "as no rt to appeal from an% order issued "erein. Ma% appeal onl% w"en t"e order$ decree$ :udgment constitutes a final determination of t"e rig"ts of t"e appellants and t"e appeal s"all affect e!er% order$ decree or :udgment appealed from$ and not merel% t"e interest w"ic" t"e appellants ma% "a!e t"erein. R Ma% sometimes be interlocutor% in nature if we were to consider it under ci!pro but it is final in t"e sense t"at it disposes of rig"ts and obli of parties$ e.g. declaration of incompetenc% OHou can appeal na alt"oug" if !iewed under ci!pro$ "indi pa ito final da"il wala pang na8aapoint na guardian. 1n ot"er words$ "indi pa tapos i%ong guardians"ip proc. ("e fact t"at t"e admin did not prosecute t"e appeal does not bar t"e lawful "eirs of t"e deceased from doing so. *?A,ON9 /awful "eirs are considered interest part%. ("e !alidit% of a :udgment or order of a court entered in a spec pro cannot be assailed collaterall% unless t"e ground for t"e attac0 is lac0 of :uris or fraud b% t"e part% soug"t to be c"arged wit" it in its procurement. 1f t"e nullit% of t"e :udgment or order assailed is for failure to compl% wit" t"e statutor% re3. w"ic" must be followed before suc" D2O ma% be entered$ t"e remed% is to appeal from suc"$ or if final$ to appl% for relief under *;G.


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1n a specpro$ appeals ma% be ta0en at !arious stages of t"e proceedings so song as t"e order$ decree or :udgment constitutes a final determination of t"e rig"ts of t"e parties so appealing. A probate decree finall% and definiti!el% settles all 3uestions concerning capacit% of t"e testator and t"e proper eEecution and witnessing of "is last will and testament$ irrespecti!e of w"et"er its pro!isions are !alid. Appealable under ,ec. = (a . Certiorari and Mandamus not A ,ubstitute for Appeal 1f an interested part% lost "is remed% b% appeal due to "is own neglect$ "e cannot now see0 redress b% certiorari and mandamus$ it not appearing t"at t"e lower court "as acted wit"out :uris. "E'ERA# $RI'CI$#E9 1n t"e absence of statutor% pro!isions directing ot"erwise$ an% order$ :udgment or decree of t"e probate court capable of being enforced$ or ta0ing effect wit"out furt"er order$ ma% be appealed fromI and t"at no action of t"e probate court can be appealed from w"ic" re3uires a subse3uent order or :udgment to gi!e it effect. e.g.$ An order directing one to appear and submit to an eEamination touc"ing an% propert% in "is possession belonging to an intestate$ ot"erwise$ "e s"all be committed to prison$ is APP?A/A'/?. 1n t"is case$ said person is legall% interested in t"e order$ t"us entitled to appeal. He need not be legall% interested in t"e intestate proceedings proper. O(H?* 1N,(ANC?, 4H?*? APP?A/ 1, A.A1/A'/? =. Appeal b !uret 4"en a suret% of an eEec2admin of t"e estate of a deceased person is admitted as a part% to an acctg made b% suc" eEec2admin under *. G@ ,ec. ==$ "e ma% be allowed to appeal from an% order of t"e court appro!ing or disappro!ing suc" acctg. " Appeal b Heir from #one $laim = An "eir$ legatee or de!isee w"o under *GM ,== "as been ser!ed wit" notice as to a mone% claim against t"e estate ma% be allowed to appeal from an order of t"e ct. appro!ing suc" claim. # A creditor w"o under *GJ ,=A is allowed b% t"e ct to bring an action for reco!er% of propert% ma% be allowed to appeal. ; A spec admin ma% be allowed to appeal from an order disallowing a will. %. &rder for License to !ell An order for license to sell real estate in admin proc is appealable. '. &rder Against (ond Appealable. *?A,ON9 ,uc" order constitutes a definite pronouncement as relates to "is bond and to "is mo!able propert% of w"ic" "e will be depri!ed. ("us$ "e can appeal. ). &rder to contract &bligation Appealable. *?A,ON9 1t affects substantial rig"ts of t"e parties and ma% unnecessaril% prolong t"e admin of t"e intestate estate to t"e detriment of t"e "eirs. *. &rder Appointing Admin Appealable. ("is is a final determination of t"e rts of t"e parties t"ereunder. +. &rder Annulling Appointment of ,uardian Appealable. An order refusing to permit a person to inter!ene in a probate proceeding w"ere "e claims to "a!e ac3uired t"e interest of one of t"e "eirs of t"e deceased is li0ewise appealable. -. &rder .emoving a ,uardian Appealable. Constitutes a final determination of "is rig"ts. An order declaring a guardian incompetent is li0ewise appealable.


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/. 0nventories and $laims against the 1state *e9 in!entories$ claims against t"e estate and sale of t"e propert% of t"e decedent are appealable. 23. 4erson declared incompetent An order declaring one a spend t"rift and mentall% and p"%sicall% incompetent is appealable. 22. &rder refusing to permit a part to intervene Appealable if t"e part% see0ing to inter!ene is one w"o claims to "a!e ac3uired t"e interest of one of t"e "eirs of t"e estate. Orders t"at are not appealable 2. &rder directing admin to ta5e action to recover amount due to the estate6 interlocutor .

("is is purel% interlocutor% and cannot be t"e basis of an appeal. 4"%5 ?wan 0o. 'ut 1 t"in0 it)s probabl% because of t"e application of t"e gen principle.
#. &rder made in admin proc relating to inclusion or e7clusion of items of propert in the inventor of e7ec8admin9 interlocutor ("is is purel% discretionar%$ pro!isional and interlocutor%. ,ub:ect to modification or c"ange at an% time during t"e course of admin proc. Not conclusi!e of t"e rts of an% one$ and t"e order is not final. %. &rder Appointing !pecial Admin8.eceiver Merel% incidental to :udicial proceedings. ("e ct ma0ing t"e appt retains control o!er it and t"at it ma% modif%$ rescind$ or re!o0e t"e same on sufficient grounds at an% time before final :udgment.

Sec. 3. !dvance "istribution in spec pro . Notwit"standing a pending contro!ers% or appeal in proceedings to settle t"e estate of a decedent$ t"e ct ma%$ in its discretion and upon suc" terms as it ma% deem proper and :ust$ permit t"at suc" part of t"e estate as ma% not be affected b% t"e contro!ers% or appeal be distributed among t"e "eirs or legatees upon compliance wit" t"e conditions set fort" in *. >A of t"ese rules.