SPECIAL PROCEEDINGS

Settlement of Estate. If you look into the

table of contents of your Rules of Court, you
will notice that partly special proceedings
consist only of 37 rul es. And then out of
the 37 rules, 20 of them are concerned with
settlement of es tate, that is more than
of
the rules on special
proceedings are
centered on
sett lement
of
estate of
deceased persons. Some of these rules are
no longer applicab
le
the constitution of the family home has
practically been rendered useless
by the
Family Code. If you go through the last part
of the Rules of Court, you will also notice
that in the distribution of examinations in
procedure, the rules
ex plicitly
require
that 60% of
questions in the Bar should
come from civil actions
, that s civil
procedure, 20% of
the
questions should be centered on evidence,
10%
in criminal procedure and
also 10% in
special proceedings. So if there is a nee
d to give an emphasis in procedure, do so in
civil actions and probably evidence
. And of course civil actions will include the
rule on the jurisdiction of court
s.
The rules
governing settlement of
estate
could easily be understood if we d
efine some of
the terms that
are
scattered among these 20 rules, the 1st
term th
at
you
should
take
note
of
is
testamentary privilege.
This
is not
embodied in th

e Rules of Court. It is part of the Civil

Code which is implemented by the rules
on
the
settlement
of
estate,
testamentary privilege refers to the right
given b
y
law
to a
person to dispose of
his
property during his lifetime
but
the
disposi
tion of the property may take effect after
his death. So it is unlike a disposit
ion
during the lifetime of a person and
the disposition also takes effect during
his lifetime like a deed of sale by the
owner. In a testamentary privilege, the
re is a disposition by the person of his
property through an instrument authoriz
ed by law and that disposition will take
place after his death. It is this dispo
sition that is regulated by
the rules of settlement of
estate.
Another term that you should be familiar with
is letters of administration,
letters
testamentary,
letters
of
administration with
the will
annexed,
special
administrator, special administration, and
ancillary administration. Letters tes
tamentary is the authority given by the
court to an executor who has been duly a
dmitted probate and
in that will the
testator
has
nominated an executor and
this
executor and
this
executor is
duly
appointed by the court and the executor
last
ly accepts the office that is given to him
by the court. When the executor nomin

ated in the will accepts the trust and he

complies with the other procedural req
uirements, the court will issue letters
testamentary. But if there is no will or
even if there is a will but the executor
refuses to accept the trust, the court
will
appoint
an
administrator.
The
appointment of
this
administrator if
there i
s a will is contained in a document called
letters of administration with the wi
ll annexed. When the document is simply
letters of administration it means that
there is no will or if there is a will it
has not been only admitted to probate
and
therefore intestacy results.
The
administrator will be appointed by the cour
t
and
the
appointment of
this
administrator will be evidenced by what we
call as
letters of
administration. An ancillary
administrator, on the other hand, assum
es
or
presupposes that
there
is a
principal
administration proceeding in a
forei
gn country but
the document
left some
properties in the Philippines. The decisio

n of
the foreign courts to appoint an
executor or administrator to that foreign
country
cannot
be
enforced in
the
Philippines because the efficacy of orders
or
decisions rendered by the court is limited
to the territorial jurisdiction of th
e court. In order to have an administrator
in the other country where the descen
dant has
left
some properties,
the
recourse is ancillary administration. The
adm
inistrator for this particular purpose
is called an ancillary administrator.
Also in settlement proceedings, you should be
familiar with what is known a
s the statute of non-claims. The statute
of non-claims is contained in Rule 86.
It is a rule of prescription contained in
the Rules of Court. In Rule 86, it is
provided that all claims for money arising
from a contract, express or implied
t hose
on
funeral
expenses,
hospitalization
should be filed within a certain perio d.
Otherwise, these claims are barred. So the
statute of non-claims provides for
a prescription with which, claims should be
submitted to the court. The consequ

ence
if these claims are not
duly
submitted to the settlement court on
time, the n the creditors will lose their
right to enforce collection of
their
claims. Tha t is the statute of
nonclaims. So, in procedure, you have some
other statute
li ke
the statute
of
frauds, statute of limitations, but
on
settlement proceedings, we also have this
statute of non-claims.

If is very easy to understand that the

settlement proceedings could take pl ace
only after the decedent has died. If the
person is still alive and
he, for i
nstance,
executes a
will during his
lifetime, he himself can go to court and
ask for the probate of his will. But even
if a will has duly been admitted to proba
te during the lifetime of this person,
there is
nothing to prevent him from

revo king the will or executing another

will. So,
usually this proceeding takes
place after the death of the decedent or
the testator. In the Civil code, when a
pers
on dies, the heirship automatically vests
upon the heirs
that means to say that
the heirs become such
immediately after
the death of the testator. But it does n
ot mean to say
that the heirs can
automatically
take
possession
and
ownership ov er the properties left by the
decedent. This
is qualified by
the
absence of cred itors of this decedent. In
settlement,
therefore,
the principal
purpose of settl ement proceedings is to
liquidate the estate of the deceased.
When we talk about liquidation, we refer
to the acts of making an [1] inven tory
of all the properties of the deceased,
and [2] naming all the creditors of the
deceased person.
The
heirs
cannot
inherit
anything if it turns out
that
ther e are more liabilities than assets
of the estate. So, if the estate of a
decease d person is insolvent, the heirs
will not inherit anything. The creditors
of the deceased person are always given
preference over
his heirs. Included in
the ter
m
creditors
is
the Republic of
the
Philippines, in the form of taxes. So the
State will
always get its
share in the
taxes of other creditors and the heirs of
the deceased person. If a person dies and
there is no will left by him, the law give
s two options to the heirs when it comes
to the matter of the settlement of the
estate. The first option is for the heirs

not
to go to court anymore. They can s
ettle the estate among themselves extrajudicially
that is, without interference
by the court. But if there is no agreement
among the heirs or if there is dispu
te among them, the only recourse is to go
to court. When they go to court,
they
could
either
file
a
complaint
for
partition, which is special civil action,
or
t hey
could institute settlement
proceedings that is a probate proceeding
or a pro ceeding on intestacy. When the
case filed is partition, then that will not
be co nsidered as a special proceeding.
Partition is treated under the rules as a
spec ial civil action. The whole thrust of
this procedure is that the Republic of the
Philippines should always get its share in
the form of taxes. So, even if the h eirs
extra-judicially settle the estate of the
predecessor in interest on the pr emise
that there is will and there are no debts.
That extra-judicial settlement
can never be registered by the officers
of the government unless the taxes are p
aid first.
What are the conditions before the heirs
of
a
deceased person,
can
extra-ju
dicially settles
the estate of
the
descent? First, the decedent must have
left a will. Second, there are no debts.
Third,
the
parties
agree
among
themselves to the partition
of
the
properties left
by
the decedent. The
document that is execu ted by the heirs,
if there are two or more heirs called the
deed
of
extra-judici al partition. If
there is only
one heir, the document
that is executed is affida vit of self-

adjudication. But
remember
that the
facts that must be stated in the deed of
extra-judicial
partition
or
in
the
affidavit of self-adjudication are t hat
there was a will left behind and that the
decedent did
not
leave any
indebte
dness, there are no creditors of
the
estate. If the estate consist personal
and real properties, there will be need
for the certification
title
to be
transferre d in the name of the heirs in
accordance with
the partition
agreed
upon
in the deed of extra-judicial

partition. Before the Registrar of Deeds

will
record any deed
of
extra-judicial
partition,
the Registrar of
Deeds
is
required by law to compel the heirs to
submit a
clearance from
the BIR.
The
Registrar of Deeds will not register any
document
extra-judicially
partitioning
the
property unless the re
is
a
clearance from the BIR. We mean say that
the Register of Deeds must be s atisfied
that the proper taxes have already been
paid to the government. So whet

her
the proceeding is judicial or extrajudicial,
the state will always get its
share. The Republic of the Philippines will
get its share from the estate in the form
of taxes. With respect to the Republic of
the Philippines, there is practi cally no
danger that
the Republic will
lose the
taxes. The particular concern is with the
other creditor of the deceased. Since it
is very easy and convenient f or the heirs
to state
in the deed of extra-judicial
partition that the decedent did not leave
any indebtedness, it is very
likely that
the heirs are not
telling the truth. If
they say in the document that there are
no creditors or that ther
e is no indebtedness. Left behind, the
Register of Deeds will simply believe wha t
they are alleging in the deed of extrajudicial partition or
in the affidavit of
self-adjudication. The protection given by
the rules to the creditors is that if the
estate consists of real properties, the
title that will be issued to the heirs will
carry an encumbrance that the properties

will be
liable
for the paym ent of
indebtedness within a period of 2 years. If
there are no real properties involved, the
protection given by law to the creditors is
that these heirs will be required to file a
bond
equivalent to the value of
the
personal properties
le ft behind. So
insofar as creditors are concerned, there
is
also ample
protection even
if the
estate is settled extra-judicially among
their heirs. Any creditor who is prejudiced
by the extra-judicially among their heirs.
Any creditor who is prejudiced by
the
extra-judicial
settlement can
later on
enforce his claim beca use
there is an
annotation in the title delivered to the
heirs that these proper ties are subject
to the payment
of
creditors
within a
period of 2 years.
If the heirs decide to go to court by way
of settlement proceedings, they a re also
given 2 options. The first is to settle
the
estate
is
practically
useles s
because the amount stated in the rules
has never been changed. Under the rules

, summary settlement of estate is possible

only if the value of the estate does
not go beyond PhP10, 000. So it s useless.
Heirs will not
bother themselves filing a
petition for summary settlement if the value
of the estate is only PhP10, 000
. That will not even be enough to cover the
cost of publication.
When they go to court in regular settlement
proceedings, the first problem
which the heirs will face is of course the
problem of jurisdiction. BP129, when
regular
administration
or
settlement
proceedings commenced, the court that has j
urisdiction is either a RTC or an inferior
court depending upon the gross value
of the estate. If the gross value of the
estate does go beyond PhP400, 000 or Ph
P300,
000
as
the case may be, the
settlement court is an inferior court. But if
the value goes beyond PhP400, 000 or PhP300,
000 as the case may be, the settlem
ent court is a RTC.
The
underlying
principle
in
regular
settlement proceeding is that there sho
uld be only one court to settle the estate
of a deceased person. We cannot have
more
than one
court in charge of
the
settlement of the estate. Otherwise, there
is a
possibility of
these courts issuing
conflicting decisions and orders. In or
der to avoid this possibility, the rules have
laid down the principle that the c
ourt which
first takes
cognizance of
a
settlement proceeding will be the only co

urt that will handle this proceeding to the

exclusion of all other courts. Usual
ly in special proceeding, the heirs go to
court for this purpose of settlement b
ecause the estate is huge, there is a lot
of money and properties involved. The
natural instinct of any living person who is
wealthy is to have as many families
as possible so that wealthy persons may
have a family in Davao, another family
in Cebu and another family in manila. When
that person dies, the problem is wher
e to file the settlement proceedings. Is it
Cebu, or Davao or Manila? The princi
ple is very clear. It is the place where the
decedent last resided. And because
he has families in all these three cities,
he can be considered as having reside
d in any of these cities. So, the rule says,
the court which first takes cogniza
nce will have control over
the settlement
proceedings to the exclusion of other
courts. So it is not unusual, after a rich
person has died, for a mistress to fi
le settlement proceedings in Davao, and the
legitimate spouse to file another se
ttlement
proceeding in Manila. These
two
courts cannot have concurrent jurisdict
ion. One of them has to give way to the other
for the purpose of the settlement
of the estate. The principle again is that
the court which first takes cognizanc
e will do so
to the exclusion of
other
courts.

A
settlement
court,
whether the
proceeding is testate or intestate, is a
co urt that acts with
a very
limited

jurisdiction. Its jurisdiction is only

to
[1] liquidate the estate, [2] decide the
claims against the estate, [3] decide who

t he
heirs are and, thereafter,
[4]
distribute the estate. So,
if there is
any que stion
concerning ownership of a
piece of land owned by the decedent, the
settlem ent court has NO authority to rule
on
this issue of
ownership. Another
proceedin g
should be
filed
before a
regular court, separate and distinct from
the settlem ent proceeding. So, settlement
courts have
limited jurisdiction.
They
cannot adj udicate;
they cannot resolve
questions of ownership involving properties
of the decedent if these properties
are
claimed by
strangers. An independent
action mus t be filed for the purpose of
adjudicating this controversy.
It is also settled that if a person dies
with
a will, it is not
necessary t o
commence settlement proceedings to file a
petition for the allowance of the wi ll. If
a person dies and he has left a will, the
person in custody of that will can simply
go to a court, RTC or an inferior court as
the case may be, surrender the will to the
court and the act of
surrendering that
will to the court alread
y
commences settlement proceedings. So
there is no absolute necessity for the fi
ling of a petition for the allowance of the
will.
But
generally in settlement pr
oceeding, the petition
prepared by
a
lawyer will be accompanied by the petition
for the probate of a will or petition for
the issuance of letters of administrat ion
as the case may be. The petition for the
allowance of the will or the petiti on for
the issuance of letters of administration
should embody the legatees or
t he
devisees, the last
residence of
the

decedent. These are the jurisdictional fa

cts which should be embodied therein.
You will also notice that a petition for
probate of a will or a petition fo r the
issuance of letters of administration only
has a petitioner in the faction of the
proceeding. There
are no
respondents
mentioned. That is why a settlement is a
classical example of a proceeding in rem.
There
is no petitioner but
there are no
respondents identified in the petition. How
does
the court then acquire jurisdiction
over
the heirs,
over
the persons
interested
in the estate
of
this
d
eceased? Once a petition for issuance of
letters of administration is filed with
the court, the court is compelled to issue
an order setting the matter of heari
ng. It s either for the issuance of letters
of administration or for the probate o f the
will. This
order will be
published in a
newspaper of
general circulation
o nce
a
week for 3 consecutive weeks. It is this act
of publication which will con fer jurisdiction
upon
the court.
In
addition to the
publication of this notice o
f hearing, the court is required to serve
by personal service or by registered m ail
notices to
the heirs,
legatee and
devisees identified in the petition. This
is a mandatory requirement in addition to
the publication of the notice of heari ng.
If there is no notice given personally or
by mail to the heirs identified or named in
the petition,
then, the court will not
acquire jurisdiction over the p roceeding.
This
is to emphasize that a settlement
proceeding is in rem and it is necessary

for the court to comply strictly with the

procedure for publication o
r for the giving of
notice to these
individual heirs.
But
remember
what
is
publi shed is the notice of hearing. It is
the order of the court after the petition
h as been filed or after a will has been
submitted to the court.
If there is a will left by the testator,
then the hearing will
first be
con
centrated on the extrinsic validity of the
will
that is, the court will have to make
a finding as to whether or not the formal
requirements of the will embodied in the
Civil Code have been satisfied. And in the
matter of
presenting
evidence for the
probate of
a
will,
there are certain
evidentiary rules which depart fro

m the rules on evidence that you have

studied. For instance, the rules require t
hat for the probate of contested will, the
petitioner must present all
the
subsc
ribing witnesses to the will and also the
notary public, if they are still alive and
if they are still competent to testify. So
the petitioner cannot choose the witnesses
he should present in order to prove
the
extrinsic validity of
the wil l. He must
present the subscribing witnesses to the
will and you are very
famili ar with
the
Civil Code provision that in a will, there
must
be
at least three su bscribing
witness. One of
the problems that
will
therefore be faced by the petit ioner for
the probate of a will is the possibility
that these subscribing witnes

s will tell the court that they did

not see the testator institute the
will or t hat they did not sign the
will in the presence of one another,
which are require ments in the Civil
Code. So if the petitioner presents
subscribing witness #1,
t
he
petitioner has
in mind
that this
subscribing witness will tell the
court that he saw the testator sign
the will, that the testator signed
the will in his pre sence and that the
will was signed in the presence of the
other witnesses. In so
me instances, a subscribing witness will tell
the court, I did not see the testat
or sign the will or if the testator signed
the will I was not present or
the other w
itnesses signed the will in my absence. The
petitioner will then be faced with a

serious problem because under the rules on

evidence, a party cannot impeach his
own witness
that is,
the party
producing a witness will be bound by the
testimon y of this witness that he has
produced. That is a general principle in
evidence.
In this situation, can the petitioner
present contradictory evidence? By way
of exception to that evidentiary rule
which
says that
a
party
cannot
impeach
his
o wn witness. In
the
probate of
a will, a petitioner is
free to impeach
a
subscrib ing
witness. Therefore, the petitioner is
not bound by the testimony of these
su bscribing witnesses. Even if the
subscribing witnesses will later
on
tell the co urt that the will was not
signed in their
presence, that the

signature of
the te stator is not
genuine, the petitioner
is
free to
present other witnesses to
cont
radict the subscribing witnesses.
What is the reason for allowing the
petitioner to impeach the subscribing
w itnesses or to contradict them? In
probate proceedings, the petitioner
really
ha s no
choice at all
in
presenting
the
subscribing
witnesses. These
witnesses are, in
truth, not
the witnesses of
the
petitioner. They are witnesses to be
present ed in compliance with
the
Rules of Court.
You should also be familiar with
the
last
rule in special proceedings
that is,
the rule on
appeals in
special proceedings. If you will notice
there
are
sev
eral
orders
or
decisions in the last rule which are
declared to be applicable an
d most of these rules enumerated in
the
last
pertain to settlement
proceedings. So,
we will appreciate
that in settlement proceedings. This
is one
instance
wher e
several
appeals could be held in one and the
same case. Let us say that the co urt
issues an order admitting the will to
probate. Admission to probate simply m
eans
that the will is extrinsically
valid
that
is,
the
formal
requirements in th e
Civil Code have
been satisfied by the testator and the
subscribing witnesses. Probate of a will
has nothing to do with
the intrinsic
validity of a will. It ha

s nothing to do with the contents of

the will. So even if a will is duly
admitte d
to probate, it does
not
mean to say that the contents of the
will are valid by themselves alone.
They may not be valid. If there is no
will submitted to the c ourt,
then
the petition
is
simply called a
petition for the issuance of letters
of administration. Meaning to say that
the proceedings are intestate.
The court, after admitting a will to
probate or if there is no will, after
the hearing that
is
published has
taken place,
the court will
either
appoint
an
executor
or
an
administrator.
The
executor
or
administrator appointed by the cou rt
is a
neutral party. He does
not
represent the heirs. The executor or
administ rator is an officer of the
court. And the requirement is
that
this executor or a dministrator must
file a bond, in addition to the other
duties which are embodie d in the
rules. There is an order of preference
when it comes to appointment of an
administrator.
But
there is
no
preference when it comes
to
the
appointment of an executor, for the
simple reason that an executor is a
person nominated in th
e will by the testator himself. But
when it comes to the appointment of
an admin istrator, there is an order
of preference: the surviving spouse,
the next of kin
, the person chosen by the surviving
spouse or
the next of
kin, or
the

person du ly appointed by the court,

if the surviving spouse or the next of
kin refuses to accept the trust.
In all proceedings, where there is
an element of trust that is involved
in the appointment of these officers
like
the administrator, executor,
guardian or a trustee,
the common

obligation that the rules impose upon

them aside from the
filing of the bond is that they must
a true and complete inventory. They
must su bmit an accounting within a
period of one [1] year and in such
other time as the court will require.
And they must obey at all times the
orders issued by the co

urt, whether it is a settlement court or a

guardianship court or a trusteeship c ourt.
When the court appoints an
executor or
administrator, the appointment is a final
order. Since it is a final order, that order
is appealable. In other words
, an heir or any person interested in the
estate can always challenge the propri ety
of
an
order appointing an
executor or
administrator. And if
that order is ch
allenged,
the executor or
administrator
cannot perform the duties and rights of his
office right away. He cannot be considered as
an executor or administrator r ight away. So
if the
appointment of
the executor or
administrator is challenged, there will be a
situation where nobody will be taking care of
the properties
of the estate
while the
appeal is going on. Now, who will take care
of the propert ies? According to the rules,
the court can
now appoint a
special
administrator. The appointment of a special
administrator is not
appealable. In other
words, on ce the court appoints a special
administrator, this
special administrator
can im mediately take his oath of office. In
certain cases, the executor or administrat
or appointed by the court whose appointment
has
been challenged by an heir or
an y

interested
person
is
appointed
subsequently as a special administrator of
the
estate.
For
instance,
if
the
administrator named by
the court is Juan
dela
Cruz and
his
appointment as
administrator is
challenged, the court
invariably appoint s Juan
dela Cruz
as
special administrator. Is that a valid order
on the part of the court? The answer is YES.
Even
if
there is
challenge
to
the
appointment
of
a
n
executor
or
administrator, the court can still name the
same person whose appo intment has
been
challenged as
a
special administrator of
the estate.
For
instan ce, if
the
administrator named by
the court is Juan
dela Cruz
and
his
appointmen t as
administrator is
challenged, the court
invariably appoints Juan
dela Cruz
a s
special administrator. Is that a valid order
on the part of the court? Yes,
ev en if
there is a challenge to the appointment of
an executor or administrator, t he court can
still
name
the
same
person
whose
appointment has been challenged as a special
administrator of
the estate.
There
is
conceivably no harm in appointi ng the same
person
as
the
special
administrator
because there is a vast differen ce between

the powers
and
duties of
a
regular
administrator and a special admini strator.
A
special
administrator
cannot pay
obligations. All that he does is to protect
the estate. He can only be a caretaker of
the estate until a regular adm inistrator or
executor is appointed by the court.
Let us say that
the appointment of the
administrator is not challenged. So he now
takes his oath of office, he submits a bond
and then he submits an invent ory of all the
properties of the estate in his possession
and which has come to his knowledge. Then he
will also give an appraisal of the value of
theses proper ties. What will the court do
after the administrator has taken his oath
of offic e? The court will now issue another
order fixing the date for the enforcement of
the statute of non-claims. The court will
issue an order directing money claima nts
against the estates
should file their
claims within a period of not less tha n 5
months or more than 12 months from the date
of first publication within whic h to submit
their
respective money claims. Otherwise,
these money claims are bar red. So they will
no longer be enforceable against the estate
of the deceased pe rson. In relation to this
money claims, we have
to refer to the
eeding for the settlement of the estate of
the deceased debtor.
Now the 1st question that will arise is does
a creditor have a personality
to commerce settlement proceedings of the
estate of his deceased debtor? Yes, an
y heir or
any person interested
in the
estate can commerce the settlement procee

situation that i s contemplated in rule 3 of

civil actions and also rule 39 when it comes
to exec ution where the defendant has died
and on evidentiary rule of pertaining to the
admissibility of evidence in cases where a
person has died, in rule 3 we all kno w that
if the defendant dies during the pendency of
a case, that action will not be dismissed by
reason of the death of the defendant. For
instance, if there a claim for the recovery
of an unpaid loan in the sum of 1M and the
defendant dies while the case is pending,
the case will not be dismissed. What happens
is that the counsel for
the deceased
defendant will notify the court that
his
client ha
s died and he will submit to the court the
names of
the heirs who could act
as
s
ubstitute defendant. If none of the heirs is
willing to act as
substitute defend ant,
then the remedy of the plaintiff-creditor is
to procure the appointment of an executor or
an administrator of the estate. Meaning to
say
that nobody
is wil ling to act as
substitute defendant for
the deceased
defendant, it is now the bu rden
of the
creditor to file settlement proceedings. This
will be a special proc
dings and
the term
interested
person
includes the creditor of the decedent.
Once an
executor or
administrator is
appointed by the settlement court, the
executor or administrator will now be the
substitute defendant. The executor or
administrator cannot refuse to act as
a
substitute defendant because that is on

e
of
his
duties
as
executor
or
administrator, to represent the estate in
cases t
hat are pending in court.
You will know that this case for the recovery
of an unpaid loan will not be
dismissed. In fact it will be tried by the
court
until the judgment is fin
ally entered. But let us say that the trial
court eventually renders a decision
in favor of the creditor. So the court tells
the debtor, the estate of the defen
dant, to pay
the obligation and
the
judgment is entered. Can the creditor now
en
force
the
judgment by
asking for the
issuance of a writ of execution? NO, even i
f the creditor eventually wins the case, he
cannot enforce payment of the award
through rule 39 that is the execution of
judgment. In fact, if the debtor has di
ed, there is no guaranty that the creditor
will eventually recover the award. So
even if the creditor has won the case, he
cannot resort to rule 39 for the exec
ution of judgment and the only thing that is
left for him to do is to go to the
settlement court and submit the decision of
the trial court that has been entere
d / that has become final and executory. The
payment of the claim supported by a
final and executory judgment will take place
after the expiration of this statu
te of non-claims. In other words, a claim
that is supported by a final and execu
tory judgment will be treated just like any
other claim. It does not enjoy any p
reference insofar as the settlement court is
concerned. But there is another sit

uation contemplated in rule

39,
that is
when the defendant has died, in rule 39,
I think in section 7, in an award for money
rendered by a court, if the defenda
nt dies after the judgment has been entered
and after properties have been levie
d upon, the sale of the properties levied
upon can continue even if the defendan
t has died in the meantime. So this is a
very unusual situation. The defendant h
as died, there is a judgment against him
and there is already a levy on properti
es of the deceased defendant. The levy will
continue and the properties levied u
pon
can
be
sold at public auction. This
should be treated as an exception to the
rule that money claims supported by
a
judgment cannot be enforced against the e
xecutor
or
administrator
under
the
provisions of rule 39.
Going back to the statute of non-claims. The
claims referred to in the stat
ute are pure
money claims arising from a
contract, express or implied. In other
words, these claims do not include claims for
the recovery of personal or real p
roperty. They do
not
include claims for
damages arising from tort. In other word
s, an action may be commenced against an
executor or administrator for recovery
of title (accion reinvindicatoria/replevin).
They could be commenced against an
executor or administrator. But an action to
recover an unpaid loan cannot be ins
tituted
against
an
executor
or
administrator. The remedy
o f the money
claimant
is
simply to file a
claim before the
settlement court. In one case where the set

tlement court was

a
RTC, the claimant
submitted a claim for the recovery of an u
npaid
load
of
P200,000.
What
the
administrator did was to ask the court to
dismi
ss the money claim because the amount was
not within the jurisdiction of RTC, gi
ven the provisions of BP129. The court said,
the conduct of the administrator wa
s not well taken. All money claims submitted
to the settlement court must be ent
ertained by the settlement court regardless
of the amount involved. So even if t
he amount of the claim is only P200,000 as
long as it is a money claim, the RTC

would have
jurisdiction
to entertain the
money claim. So we do not apply the pro
visions of
BP129 when it comes
to the
determination of whether or not a settleme
nt court has jurisdiction over certain money
claims. Even if the money claim is
below the jurisdictional amount given to a
RTC in BP129, the settlement court st
ill has jurisdiction to entertain the money
claim.
A money claim before the settlement court is
not commenced with the filing
of a complaint. In other words, a money claim
does not envision a situation wher

e there is a complaint filed

by the
creditor
against
the
executor
or
administrat or. There
is no complaint /
pleadings filed. All that the claimant is
required t o submit to the court is an
affidavit
saying that he has a claim
against
the est ate and
in that
affidavit he will annex the supporting
papers. So this is not
an independent
action for the recovery of the claim. It
is just in the form
of
an affidavit.
Because this is not a form of an action
as
contemplated in civil acti ons, the
executor or administrator may or may not
file an answer. The executor m ay not
contest the claim. Once a
claim is
submitted to a settlement court, the e
xecutor is given the discretion whether
or not in contest the claim. So if the a
dministrator feels that the claim is
genuine, then all that he needs to do is
to tell the court that the claim is
genuine. But if he feels that the claim

is not genuine, then the administrator

should contest the claim. If there is a
contest of that claim, then there will be
a
trial
to be
conducted by
the
settlement cou rt to determine whether
or
not
that
claim submitted by the
creditor is
valid. In the trial
of
contested money claims, the court is not
required to sit as the ju dge during the
trial. This
is one instance where the
court is
given the discreti on
to
appoint a commissioner for the hearing
contested
claims.
Once a claim is
a
djudicated
by
the
court,
that
adjudication again becomes a final order.
Under th e last rule, that is another
appealable order. So you will appreciate
that if in a
settlement there are 20
money claimants and
the court has
already adjudicated on these money claims
and the administrator or the claimant
feels that he has b een aggrieved, there
can always be an appeal from this order

concerning conteste d claims. So it is

very
possible that there will be
20
appeals on this
contested claim during
the settlement
proceedings. And while
there
are appeals going
on
t his
contested claims, it is not possible for
the administrator or
executor to di
stribute the estate among the heirs
because
the
principal
purpose
of
settlement
is always the liquidation of the estate
payment first of the creditors ahead
of
the heirs of the decedent. Because
the
executor or administrator is given the di
scretion to contest or not
to contest a
claim, there is a strong possibility tha
t the administrator might
collude with
the claimant. A claim is filed and becaus
e of prior understanding between
the
administrator and
the claimant,
the
adminis trator will simply tell the court,
this
claim is
genuine and
should be
approved by the court. Do the heirs have
any
recourse at all?
YES, if the
administrator d ecides not to contest a
particular claim, the heirs could submit
their own conte st to this claim. This is
a remedy to check the possibility that an
executor
or
administrator
may
have
abused the authority given to him by the
rules.
In some wills, the testator usually tells
the heirs that he
has
left some i
ndebtedness
to
some
particular
individuals or
corporations. So the
testator coul d state in the will, I owe
so
much to PNB
/ to this particular
person. So in the will itself,
there
could be
an
acknowledgement by
the

testator
that he
has
left some
indebtedness. Should the creditors whose
accounts are
recognized in
the wi ll
still submit their
claim within the
statute of non-claims? YES, the recogniti
on
by
the testator
existence and
validity of certain accounts will not be
an exc use for these creditors not
to
submit their
claims within the
period
provided by law. In
the ex. PNB should
still submit its claim within the statute
of non-cla im.
In
one
case, the validity
of
this
provision of the Rules of Court, the stat
ute of
non-claim, was challenged. The
argument ran
like this: Prescription is
ne ver procedural. Prescription is always
a matter of substantive law that is why i
n the Civil Code there is a particular
chapter on prescription of actions and no
w we meet a situation where the Rules of
Court
embodies
a provision for prescrip
tion of actions, that is the statute on
non-claims, within a period of not
less
than 6 or more than 12 months from the
date of publication. So that according to
t his particular creditor,
my
claim
prescribes in 10
years
because it is
supporte
d by a written document
promissory note
but under the Rules of Court, I am requi red
to submit my claim within a period of not
more than 12 months otherwise my c
laim
is barred. So there is obviously
conflict
between
the provisions of the
Civ il Code on prescription and provisions
of the Rules of Court on non-claim; and t
he
Civil Code should prevail
because

prescription
law

is

matter of

substantive

ription is a matter of substantive law but

the provisions of
the Rules
of
Court
pertaining to the statute of non-claim is
substantive because it is just a repro
duction of an old provision in the Code of
Civil Procedure. The Code of Civil Pr ocedure
was substantive law that is before the
Rules of Court took effect. So th is is not
really a creation of the Supreme Court by
itself alone. It is just a r eproduction of
an old substantive law which has not yet
been repealed by the Civ il Code. So the
Supreme
Court
said there is really no
conflict between
the Civil Code and this
provision, and the provision of the Rules
of Court should be take
n
as
an
exception to the rules on
prescription contained in the Civil Code.
So t he
statute
of
non-claims is
substantive but
it does not
mean to say
that it is a creation of
the Supreme
Court.
There are creditors who are not covered by
the provisions of the statute on non-claims
and they are expressly found in the rules.
These are creditors who h old collateral or
a
mortgage over
properties of
the
decedent. We
are referring h ere
to
mortgages contracted
by
the decedent
during his lifetime. The rule is dif ferent
with
respect
to
mortgages that
are
contracted
by the executor or
administ
rator with the permission of the court. The
mortgages referred to in Rule
86
are
mortgages that
were
contracted by the

and not
a matter of
procedure.
Supreme Court
said that it is true
presc

The
that

decedent during his lifetime and which co

ntinue to encumber
his properties after
his death. So if the decedent during his
lifetime obtained a loan from PNB secured
by a mortgage over his properties, un der
the rules,
PNB need
not
file a claim
against the estate
within the period pr
ovided for in the statute of non-claim. PNB
is given 3 options under the rules. PNB can
abandon
the
mortgage and
consider its
loan as an unsecured loan. In whic h case,
PNB should file a claim against the state,
or the PNB can simply rely on
its mortgage foreclose the mortgage and if
there is any deficiency, PNB can fil e a
claim with respect to the deficiency. And the
3rd option is that PNB will ju
st rely absolutely on the collateral that
it holds, in which case it does not ha ve
to
participate
in
the
settlement
proceedings. One of the questions raised
is the effect of the death of the decedent
upon a mortgage contracted by him during
his lifetime in the event that in that
deed of mortgage, there is a special pow
er of attorney given to the mortgage to
foreclose
the mortgage. Yesterday we had
the occasion to state that the mortgages
can foreclose a mortgage extra-judicia lly
if he
is so
empowered in the deed
of
mortgage. So if the deed of mortgage co
ntains a
provision
saying that
the
mortgagee can extra-judicially
foreclose
the mortgage, then that
is
a
valid
stipulation. That is in effect a contract

of agen cy where the mortgagor empowers

the mortgagee to sell the property in the
event that the principal obligation is
defaulted. In
our
situation now,
the
mortgagor has died. So in some cases, the
executor or administrator has raised this
questi on.
In the Civil Code, one of the
causes for the extinguishment of an agency
is the death of
the principal or
the
agent. In
a mortgage relationship,
the
mortgag or will be the principal and the
mortgagee is the agent. But
if the
mortgagor-pr incipal dies,
will it not
extinguish the agency constituted in that
mortgage? Ac cording to the Supreme Court,
if the decedent has died and in a contract
of
mort gagee
that is
previously
contracted, there is a special power of
attorney that i s given to the mortgagee
to
foreclose,
that
special power
of
attorney is not
ext inguished by death.
That power of attorney continuously exists.
The reason given by the court is that the
agency is that the agency in the form of
authority
giv en
to
the
mortgagee to

foreclose extra-judicially is an
agency
that is coupled w ith an interest. It is
not affected/extinguished by the death of
the principal. It is only the agent who is
given the prerogative of
canceling the
power of atto rney. So if the mortgagee
(ex. The PNB) decided to foreclose extrajudicially,
n otwithstanding the death of
the mortgagor; it can do so by virtue of
the power o f attorney.
The
statute of
non-claims is
the
presentation before the settlement court
o f contingent claims against the estate.
The rules are clear in saying that money
claims,
whether they are contingent or
absolute must be presented within the pe
riod otherwise they are barred. But since
these claims are contingent, it means to
say that the liability of the estate is
NOT certain. According to the rules e ven
if the claim is
contingent, it could be
approved by the court but the paymen t of
this
claim will depend
on whether this
claim will later on become absolute

and certain. If this claim becomes certain

later on,
then the executor or
admini
strator will have to retain a part of the
estate for the payment of this conting ent
claim. If the executor is ordered by the
court to distribute
the estate
notw
ithstanding the fact that this contingent
has not matured or has not become abso lute,
then the distributes of the properties of
the
deceased could be
held perso nally
liable up to the limit of their share in the
estate in the payment of this contingent
claim. But what is important for the order of

a
contingent
claim is for this
order to
present the claim within the period fixed in
Rule 86, within t he period of the statute of
non-claim.
It is the duty
of
the executor or
administration after all these claims has
been filed, to raise money for the payment
of the obligations. And in order rai se money
to liquidate these accounts, the executor or
administrator could ask fr om the court for
authority to sell or encumber properties of
the estate. The exe cutor under
the rules
can sell personal properties. With respect

to real propert ies, he can sell or encumber

or
mortgage real properties but
court
decisions are to the effect
that
these
provisions should not
be
interpreted
strictly. The
set tlement court has
the
absolute discretion to authorize the sale or
mortgage of
b oth
real and
personal
properties as long as the purpose for the
conveyance or
di sposition of
these
properties is to raise money to pay off the
obligations of th e estate.
Assuming that the obligations of the estate
have been paid and there are as sets that
are left, the remaining assets will have to
be
distributed among the
h eirs of
the
estate. In the distribution of the shares of
the heirs, the court wi ll have the authority
to determine who the heirs are that is part
of
the settlem ent proceeding. So the
determination of who the heirs are is within
the competen ce of the settlement court.
The
determination of
an
heir by
the
settlement court will also constitute a final
order
and
therefore
it
is
also
appealable.
In the distribution of the shares of the
heirs, the usual procedure that is followed
by the court is for the court to ask the
heirs to enter voluntarily in to a project of
partition.
Project
of
partition
is
submitted to the court and is approved by
the court and
the distribution is made
according to that project of partition. But
if the heirs
could not
agree among
themselves as to the manner a
s to how the estate will be distributed, the
settlement court again has
enough
d
iscretion. It is competent to determine the

manner by which the shares are going to be

distributed.
If
all
the heirs have
gotten their
respective distributive
shares then the
court will issue what is known as an order of
closure. The order of closure mark s the end
of the settlement proceedings.
In some cases, however, after the order of
closure has
been
entered, some p ersons
eventually appear claiming that
they are
heirs of the estate and they hav e been
deprived of their respective shares. Or in
some instances, properties are discovered
which belong to the estate and which were
not included in the invent ory and therefore
these properties were not distributed among
the heirs.
But
tak e
not
that these
incidents arise after the order of closure
has been entered, it has become final and
executory. Do we apply the principle of res
judicata, that it is no longer possible to
alter
the order of
closure? The
remedy
allowed by t he rules in these instances is
for the heir or
the interested
party to
move for the
reopening of
the case.
Reopening of
a
settlement proceeding is
available eve n if
the order of closure
(order terminating the case) has
been
entered. Even if it has
become final and
executory. Reopening of
the settlement
proceeding is no
t unique to settlement proceeding. It is not
really a new remedy. Reopening of a case is
even available in criminal cases. If you go
through your criminal proce dure, reopening
of a criminal case is allowed.
The only
condition is that the reopening must be done
before the judgment of conviction becomes
final.
In a c ivil case, reopening of a

case is also a recognized remedy that the

only
differe nce between
the reopening in
settlement proceeding and the reopening in
a civil case is that in a civil case, the
reopening as
a remedy
is available only
after trial has ended and the court renders

judgment. So, in a settlement proceeding,

reopening could take place even after the
proceedings have been terminated, eve
n after
the closure order issued by the
court has been entered.

What is the reason why the court allows

the settlement proceeding to be reo pened
even after the order of closure has become
final and executory? The reaso n proceeds
from our principle given awhile ago that
there should only
be
one
cou rt that
should handle the settlement proceeding.
If we allow court to entertain
, let us
say, petition
to allow the
closure order that will give another court
o pportunity to overrule or change orders
that have been previously issued by the
settlement court.
So we stick to this
principle that only one court should be c
oncerned with the settlement proceedings
and even after this court has already t
erminated the proceeding. Even after its
orders have been entered, it is still g
iven authority to reopen the case so that
the questions concerning distribution of
shares, properties that may have
been
discovered after termination may be set
tled in one and the same proceeding.
Before the order of closure is issued by the
court,
usually,
the administra tor
will
submit a final accounting. And in this final
accounting, the administr ator can seek the
approval of the court, for the payment of
administration
expen ses.
Administration
expenses could include fees for the lawyer
retained by the executor.
The Supreme Court
said that if the executor himself is
a

lawyer, he w ill not

be allowed to charge
attorney s fees for his services rendered as
a
lawyer and
as
an
administrator or
executor.
But if the executor retains, the
services
of
the lawyers to assist him
in the
settlement proceeding, the fees paid to
thi s lawyer will be considered as a part
of administration expenses. The same is t
rue
with
respect to other professionals,
like an accountant. The executor may n eed
the services of
an
accountant in the
preparation of
a final
accounting. The
fees
for
this
accountant
will
be
considered as expenses of administration.
The last part of settlement proceedings
pertain to escheat proceedings, whi ch is
not really an integral part of settlement
of estate of deceased persons. E scheat
proceedings could be
independent of
a
settlement proceeding. I suggest th at
you also read escheat because last year
the examiner gave questions concernin g
escheat
and
reversion
proceedings.
Escheat may or may not be a part of the
set tlement proceeding. The
rules say
that if a person dies intestate and there
are no
heirs of
the estate of
the
deceased
person,
the
Solicitor-General
could file
a
petition
for the escheat of
the
properties of the decedent. Meaning to say

tha t the properties of the decedent will

go to the Republic of the Philippines. Is
this not a manifestation of greed on the
part of the Republic of the Philippines
? Why should the Republic of the Philippines
be concerned with acquiring propert ies of
a deceased person? This
is not
really a
manifestation of greed on the par t of the
Republic of the Philippines. This is just an
implementation of the Civi l Code provision
that
the Republic of
the Philippines is
always an heir of any d eceased person who
dies without a will and without a heir. It
is embodied
in the Civil Code that the
State is an heir of any deceased person.
It does
not
mean to say
however
that
escheat could take place only in insta nces
where a person dies without a will and
without heirs. Even if there is a wi ll but
that will has not been admitted to probate
because defect in its form, th e law will
consider that
the deceased has
died
intestate. If there are no heirs, then the
same proceeding could be resorted to by
the Solicitor General.
Will there be escheat proceedings even if
the owner of the property has not died?
Yes, in some special laws like the Unclaimed

Balances Act, escheat procee dings could

prosper as long as the conditions imposed
by
this law
are met. The
U nclaimed
Balances Act refers to a situation where
bank accounts become dormant f or a period
of 10 years. These bank accounts, if they
become dormant
after a per iod
of
10
years, that is there is no movement at
all (no deposit, no withdrawal)
, the Unclaimed Balances Law says that the
government may confiscate/escheat the se
bank
accounts. The
proceeding to be
followed by the State is for the Solicito r
General to file escheat
proceedings so
that these funds which have become dorm
ant may be turned over to the Republic of
the Philippines.
In
one
case
which
assails
the
constitutionality of the Unclaimed Balances
L aw, the Supreme Court
ruled that the
Unclaimed Balances Law is founded on the po
lice power of the state. In other words, it
is not an expropriation proceeding. It is
inherent as part of the police power of
the state
to take over
bank deposi ts
which have become dormant for at least 10
years.

There could be other escheat or reversion

proceedings which
are recognized in the
Constitution
or
in
other
statutes.
Acquisition of
property by
aliens if p
rohibited by law or Constitution could be
reverted to the State by virtue of thi s
escheat or reversion proceeding.
When it comes to escheat of properties of
deceased persons, there is
also
a

protection given by law to the heirs who

may have deprived of their share in th
e
estate. If it turn out
that
the
deceased may have left some heirs who were
not aware of the death and therefore were
not able to insist that they be given the
share in the intestate
estate,
the law
gives them a period of 5 years within wh
ich to make a claim for the return of the

properties that have

been
escheated in
favor of the government.
You will
also notice that
escheat as
contemplated in the rules is a proceed ing
in rem.
There
is a
requirement of
publication just like in settlement procee
dings. But what is peculiar is that even if
after the judgment on escheat has be en
entered, an interested person or an heir
can ask for the reopening or the ret urn
of the properties of the estate within a
period of 5 years, form the entry o f that
order or decision of escheat.
Guardianship. The next special proceeding
is guardianship. Well, in guardia nship, you
should always bear in
mind
that a
guardianship proceeding
is
now the
exclusive term of family courts. We now have
family courts and under the law cre ating
family courts, the family courts exercise
exclusive and original jurisdict ion
over
petitions
for guardianship. In
fact all
family related cases are exclus ively
cognizable by family courts in the exercise
of their original jurisdiction
. The guardianship contemplated in special
proceedings is general guardianship, which
could be guardianship over
the person or
guardianship over properties, tha
t s over
the estate or both
guardianship
over the person of the ward and the prope
rties of the ward. In other words, the court
can appoint a guardian over the per son of a
ward and appoint another guardian over the
properties of the ward. So t here could be 2
guardians
appointed
by
the
same
guardianship court. Can this sam
e
order be
issued in a
settlement
proceeding, meaning to say can the court

appoi nt administrators of
the same
estate? Yes, there could be more than one
executor or administrator in a settlement
proceeding. These matters are left to the
disc retion of the settlement court.
So the guardianship that is not
covered
by
this
proceeding as
a
special pro
ceeding is the appointment of what we call
guardian ad litem. The appointment of the
guardian ad litem is not covered by this
proceeding on general guardianship
. A guardian ad litem is appointed by a
court before which any action is pending
, where on of the parties is a minor. Thus,
if a complaint for recovery of prope
rty (accion reinvindicatoria) is filed by
the plaintiff against a defendant who
is a minor and this case is pending before
an inferior court because the value o
f the property does not
go beyond P20,
000 or P50, 000 as the case may be. This
inferior court although it is not a family
court is empowered to appoint guardia
n ad litem. The appointment of a guardian
that is exclusively given to a family
court is the appointment of
a general
guardian not the appointment of a guardian
ad litem, which is inherent in any court
before which a civil action is pending
as long as one of the parties is a minor who
needs a guardian ad litem.
Just like the executor or administrator, the
guardian is an officer of the
court. He also files a bond and then he is
required to submit an inventory of th
e properties of the ward, an accounting of
the properties under his care and man

agement. Just
like
an
executor or
administrator, the guardian can also sell;
dis
pose
of mortgage the properties of the
ward as long as these acts are done alway
s with
the approval of the guardianship
court. But you will notice that when it
comes
to sale or
conveyance by
a
guardian, there is a marked difference
between
an authority given by a settlement court
to an administrator who is authorized t

o
sell or
mortgage properties of
the
estate. When an executor or administrator
i
s given authority to sell
or
mortgage
properties of
the estate, there is no
time
limit given for the sale or encumbrance of
these properties. So the sale or mor
tgage of
the property could take place
years after the authorization is given by
the settlement court. In the case of the
guardians, if a guardian is given auth
ority to sell a property of the ward
that
is, with prior approval of the court,

that authority will become ineffective

after a period of one year. So that if au
thority given to the guardian to sell a
property of the ward, he must do so with in
a
period of
one
year, otherwise his
authority ceases to be effective. He must
ask
the court for the renewal of
that
authority, unlike in the case of executor
or administrator.
The
same
principles
that
govern an
executor or administrator
also govern a
guardian, insofar as
the ward and
the
properties of the ward are concerned. Thei
r actuations should always be with prior
approval of the court. So if the execut or
or administrator sells the property of the
estate
without prior authorization from
the court, the same is null and void. If
the guardian sells the property o
f the ward without prior authorization from
the guardian court, the same will al so be
null and void.
Trust. A
trust also occupies the same
office as a guardian or as an executo r or

administrator. A
trustee
occupies a
position of
confidence. The substantive
provisions on
trust, of
course, are
contained in the Civil Code. So what we fin
d
in the Rules
of
Court
are the
procedural
principles
governing
the
enforcement of a trust. In substantive
law, a trust could be a living trust, or
it could be
a
testamentary trust. A trust that is
envisioned in the Rules of Court is a test
amentary trust. It could also be a living
trust or
a contractual trust. The diff
erence
between
an
executor
or
administrator of an estate and a guardian
of a war d from the trustee of a trust is
that a
trust
acquires title to the
property hel d in trust.
An executor or
administrator does not
get title to the
property unde r his administration. A
guardian also does not
get title to the
property under h
is care but
a trustee
that is, of an
express trust either in a living trust or t

estamentary, will
acquire title to the
property under his care. So insofar as th ird
persons are concerned, the trustee is the
legal owner of the property held i
n trust. It is in this relationship where we
meet the terms beneficial owner and legal
owner. The trustee holds legal title to the
property held
in
trust
while th e
beneficiary holds beneficial title
to the
property.
In testamentary trust, as contemplated in
the Rules, the trust is created in a will.
After
the
settlement
proceedings are
finished and the property that
is given in trust is not
delivered to a
creditor for the payment of the indebted
ness of the decedent, then it is the duty
of the executor or administrator to fo llow
the provisions of
the will creating the
trust. So, it is the duty of execut or or
administrator to ask the settlement court
to go ahead
with
the appointment of a
trustee for this testamentary trust. In
that sense, a testamentary trust c ould
be considered as a continuation of the
settlement proceeding. But the propeSrty
will now be transferred to the name of the
trustee. Unlike in the case of an executor
or administrator, a trust could also be
contractual
in
character
and
t
he
appointment of the trustee does not need
intervention of the court. The appoi ntment
of the trustee could be had in the deed of
trust. A good example of contr actual trust
where
a
trustee
is
appointed without
intervention by the court is t he trust
that
exists
in the cemeteries [Loyola
Memorial Park, Manila
Memorial Pa rk]. This

is a
contractual trust. There
is a
trustee named in the deed of trust who
takes care of the cemetery, the private
cemetery. The
funds are
given by
the
buyers of the lot. This is an example of a
trust contractual in character where the
appointment of the trustee is not though
court intervention. In other words
, the appointment of a trustee could be
had through court intervention. It could be
had
purely by
reason of
an
agreement
between the trustor and the trustee, an
d in some
instances,
by
the
beneficiar
y.
Adoption and
Custody
of
Minors. With
respect to this proceeding, adoption a
nd custody of minors, if you are relying
solely on what the Rules of Court provi
de, you could be in trouble because most of
the provisions of the Rules of Court
on adoption and custody of minors are now
embodied in two laws on adoption and
these laws
are the Domestic
Adoption
Decree and the Inter-country Adoption Act.
So I suggest that don
t rely on
the
contents of the Rules
of Court. You should
rel y more on the laws that we have just
mentioned. As the title of the proceeding i
n the case, this
case generally covers
only
minors. It is in exceptional circums
tances that there could be an adoption of
a person who is already of age. And th en
another change
that was introduced by
these statutes is that there is a provi

sional remedy now recognized in relation to

this proceeding. This provisional re medy is
temporary custody of children. So a petition
there could be filed and in that petition
there could be
a
prayer for
temporary
custody of children as a pr ovisional remedy.
There
could be some confusion between
a
petition for guardianship and petit ion for
adoption. There
are 3 marked
difference
between these two. The first is with regard
to the venue of these petitions. The venue
for a petition
for guardi anship is
the
residence of the minor or the incompetent
while in adoption, the v enue is the place of
residence of the adopter (the petitioner in
a petition for adoption). With respect to the
requirements for publication in guardianship
ther e
is no
such
requirement for
publication.
Only
a
requirement for the
giving of n otice to the parties.
But in
adoption, there is
a
requirement for
publication in order to enable the court to
acquire jurisdiction. And the last important
disti nction between these two proceedings
is that in guardianship the party sought to
be
placed
in
guardianship
is
not
necessarily a minor. He could be a person of
a ge as long as he is incompetent. But in
adoption generally, the proceedings cove r
only a minor. It is only in the exceptional
situations where our law allows a person who
is already of age to be adopted.
Since there is a requirement for publication
which
must
be
strictly complie d
with
according to the court, in the sense that
in the order to be published or at least in
the caption of the case, the complete name
of
the person to be
adop ted must
be
specified, the complete and correct name of

the person sought to be adopted. That is

the name contained in the Office of
Civil
Registrar.
Otherwise, the court will
not
acquire over the petition for adoption.
In
the past, laws
of
adoption were
interpreted to mean that these statutes
were for the benefit of the adopter that is
in order to provide the adopter with a
sense of fulfillment if he is going
to be
given an adopted child. But if you are going
to read the Domestic Adoption Act and Intercountry Adoption Act, the trend seems to be
that every interpretation
of
these laws
should favor the adopt ed, the person
sought to be adopted. So the Supreme Court
has
given the rule tha t procedural laws
should not
be
strictly applied and
interpreted as long as the interest of the
adopted are well protected. So that is now
the policy of
the sta te
concerning
adoption proceeding.
Do we allow adoption that is non-judicial in
character that is we allow ado ption even if
there are no court proceedings at all? Yes,
under
the Inter-countr y
Adoption Act,
adoption may be authorized / decreed by the
court. So adoption m ay be judicial or it may
be non-judicial. If it is judicial, the court
that has exclusive original jurisdiction will
of course be the family related case. The c
ourt that has given the decree of adoption
is
also the court that
has
authority to
revoke or resend that decree of adoption is
also the court that has authority to revoke
or resend that decree. In some cases, the
proceedings for the revocat ion of adoption
are considered as
a continuation of
the
adoption case. But in ot her
cases, the
Supreme Court
said that there may be an

independent petition for the revocation of a

decree of adoption. But this does not seem
to be important a nymore because the court,
the family court,
has
the authority
to
revoke or set a side a decree of adoption
that has been previously given so I suggest
again that you read the provisions of the
Inter-country Adoption Act and the Domestic
Adop tion Act because these laws contain both
substantive and
procedural rules
that
g
overn
the flow of an adoption case. So I
leave that to you.
Habeas Corpus. The more important special
proceeding is
of
course
habeas co rpus,
proceedings for hospitalization of
insane
persons. There is not much to re ad except
that
you
might
be
asked, are the

proceedings for the hospitalization

o f
insane persons irrelevant considering that
an
insane person is
also covered by
guardianship?
The
definition
of
an
incompetent in the Rules of Court covers the
person who is of
unsound
mind.
So if a
person is of unsound mind, should he not be
placed under
guardianship? Why should he
still be the subject of a proceedin
g
for the hospitalization of
an
insane
person? In seems that when the person of
unsound mind has properties, everybody will
be interested in making him as a war d. So
guardianship proceeding will ensue. But if
the insane person is the one wh om we meet
in the streets loitering around, nobody will
be interested in placing

him under
guardianship. The person who has
the burden of filing this petition w ill be a
government official
the Secretary of
Health for instance. So this proce eding for
the hospitalization of insane person is more
for the protection of the community so that
the insane person will not
be
loitering
around a locality. Bu
t if again the person of unsound mind is
wealthy, you can be sure that there wil l
be a petition to place this insane person
under
guardianship. It will be diffe rent
from the proceeding for the hospitalization
of an insane person.
In one class, in special proceedings as a
course
in
law,
this
question
was
propounded. In
a
petition
for habeas
corpus that is filed
on behalf of the
detai
nee,
the
detainee
formally
manifested before the court that he is not
really und er illegal detention. That, if

there is any restraint upon him,

it is
voluntaril y on his part which was not
exactly accurate because he was really
under unlawfu l detention. The consequence
of that manifestation is that the petition
for habe as corpus will be mooted; it will
become academic because there is really no
ill
egal
detention
or
involuntary
restraint. Now the
question
propounded
next was,
w hat is the remedy of
the
petitioner
who filed the petition for
habeas corpus on behalf of the detainee?
The amusing answer given was the petitioner
should insti tute another petition for the
hospitalization of
an
insane person, of
course add ressed to the detainee. That s
a good answer, isn t it? Very amusing.
You should always bear in mind that the
jurisdiction over
these petitions
i s
given to all
courts in our
system. The
Supreme Court, the Court of Appeals, a RTC,

and even inferior courts have authority to

hear petitions for habeas corpus
. In the case of inferior courts, they are
given interlocutory jurisdiction unde r BP
129, to hear a petition for habeas corpus.
That is if there is a certificat ion that
all the judges of the RTC in that district
are absent. Under BP129, an inferior court
has
an
exercise what
is known as
interlocutory jurisdiction over
a petition for habeas corpus.
Unlike in certiorari, prohibition or mandamus
which is equally cognizable b
y the Supreme Court, the Court of Appeals and
RTC, this concurrence in jurisdict
ion
is limited by what
we call as
the
principle of hierarchy of courts. Habeas c
orpus is
also cognizable by
all
these
courts
the Supreme Court, the Court of App
eals and the RTC
but we do not observe the
principle
of
hierarchy of
courts when it
comes to applications for writ of
habeas
corpus. The writ extends to all cas
es where the detention is illegal or there
is unlawful restraint. But it is a se ttled
principle in habeas corpus
that the
illegality
of the detention must be re
ckoned as of the date of the filing of the
application or of the petition. Meani ng to
say that even if the detention is illegal
at the start but if at the time of the
filing of the petition, the detention has
become lawful, the petition for habeas
corpus will be denied. So the illegality of
the detention must be reckon ed as of the
date of the filing of the petition. These
incidents
are
usual.
For instance,
immigration will detain an alien without

any valid reason. The detenti on is not

lawful of course. Let us say that the alien
is kept in custody for 3 m onths. Then he
consults a lawyer and the lawyer files a
petition for writ of hab eas corpus. But if
at the time of the filing of the petition,
there is
already a n
order for the
deportation of this alien. At the time of
the filing of the peti tion, the detention
has become lawful. So that will justify the
denial of applic ation for habeas corpus.
Also in criminal cases where the arrest in
unlawful fro m the very beginning. Even if
the arrest
is unlawful but
at the time
the petitio n for habeas corpus is file
there is already a
warrant
for
his
commitment, then the petition for habeas
corpus will be denied. It will not
make
sense anymore be cause at the time of the
filing of the petition, the detention is
already lawful
.
As we said a
while ago, if the detainee
himself tells the court that he is
not
being illegally detained, that he has
voluntarily submitted himself to this
unlawful restraint
that will render the
petition moot and academic. That is the
general rule concerning habeas corpus.
If the detention is illegal at the time
of
the filing of petition but after
the filing
the detainee is
already
released from
custody that
will
also
render
the petition moot and academic
because
the petition has already achieved the pur
pose of the filing of the petition.

In habeas corpus cases, we should be able

to distinguish the writ of
habeas corpus
itself and what is called the preliminary
citation. A preliminary citati on is issued
by
the court when it does
not
appear
manifest or clear in the appli cation that
the detention is illegal. So if there doubt
arising
from
the
content s of
the
application
whether the
detention
is
unlawful or
illegal,
the court wil l not
issue right away a writ of habeas corpus.
The court will simply issue what is called
as a preliminary citation. A preliminary
citation is an order issued
by the court directing the respondent to
show cause why the writ of habeas corpu s
will not be issued. So it is preliminary to
the issuance of a writ of habeas c orpus in
the event that the petitioner is able to
show that the detention is ill egal.
I suppose that
you
are well read in
relation to the substantive laws concer ning
habeas corpus like the constitution. So I
suggest that you read once more t he case
of Villavicencio vs. Lukban which you must
have read in Constitutional L aw. And the
case of Moncupa vs. Enrile. These two cases
give us the basic princi ples concerning
habeas corpus not from a procedural point of
view but
from the s ubstantive point of
view. If you will recall
in that case of
Moncupa, after the application for habeas
corpus was filed, the soldiers in custody of
the detainee released him
but
under
certain conditions. One of the conditions
was that the d etainee will not be allowed
to transfer
his residence without giving
notice to t he armed forces. That he will
not
be
allowed heed
interviews to the

press. Accor ding

to the Supreme Court,
that is part of restraint that is covered
by
habeas c orpus. In
other
words,
restraint purposes of habeas corpus do not
only mean phys ical restraint. It could also
extend to psychological or moral restraint.
But on a procedural point of view, habeas
corpus is described by court deci sions as a
proceeding that is similar to an in rem
proceeding although the court did
not
say
that it is actually in rem. It is similar
to an in rem proceeding. The court could not
consider habeas corpus as a genuine in rem
action because in an application for writ of
habeas corpus, there is a petitioner and
there is al ways a respondent unlike in the
other special
proceedings that
we have
taken
up like
settlement proceedings,
adoption, guardianship proceedings. In all
these pr oceedings, there is
only
a
petitioner and
there is no
particular
respondent who is
impleaded. But
in a
petition
for habeas corpus, there is
a
petitioner and the re is a respondent. That
is the justification why the Supreme Court
could not
sa y directly a petition
for
habeas corpus is
really
an
in rem
proceeding. Besides in petition for habeas
corpus unlike in other special proceedings,
there is no r
equirement for prior publication. It s just
like a civil case where the plaintiff sues
the defendant and
then the defendant is
required to file
an
answer. In
habe as
corpus
proceedings,
the
respondent
is
required also to answer and this answer is
called in return in habeas corpus. If the
return is made by the public offic ial and in

that return this is required to be under

oath, which is required to b
e verified. He must explain to the court
the reason for the detention; he must g ive
to the court copies of
the
documents
authorizing the detention. If the publi c
officer complies with these requirements,
his return is presumed to be an evid ence of
the legality of the detention. But if the
return is made by a private in dividual,
the allegations
contained in the return
must be proven by this private individual.
In one case in the past, after a petition
for habeas corpus was fil ed in the court
the respondents submitted their return to
the
court
and
in
that return
the
respondents told
the court:
we have
already
released
the
detainee
and
therefore the petition has become moot and
academic. What the representatives o

f the detainee did was to tell the court:

it is not true that the detainee has b een
released found. So the issue was who has
the burden to prove
to the court th at
there was
indeed a
release of
the
detainee. The Supreme Court said that if th
e petitioners denied that the detainee has
been released, that is contradictory to
what the respondents have submitted to the
court,
it is the duty
/ burden of the
respondents to prove
that there has been
an actual release. This will be sim ilar to
a situation where the defendant to prove
the affirmative allegations in the return.
If the court eventually issues the writ of
habeas corpus, it does not
mean to say
that
the detainee will
be
released
automatically. The respondent will be

given a chance to assail the validity of

this order. And the remedy to challenge a
writ of habeas corpus issued by the court
is to appeal from this order. And t his is
where
there is a
conflict of
court
decisions. What is the period for an a
ppeal in habeas corpus cases? If you are
going to read and rely solely on BP 129
, the period for appeal in habeas corpus
cases is placed at 48 hours. That is ex
pressly provided in BP 129. But in the law
amending BP 129, it is also stated th at in
special proceedings and in civil actions
which admit of multiple appeals, the period
to appeal shall be 30 days. And habeas
corpus is a part of special pr oceedings.
So it seems that
the period to appeal
would really be 30 days if we r ely solely

on
this
provision saying that in civil
actions where multiple appeals is allowed
and in special proceedings the period to
appeal is 30 days. But in 1 case decided in
2000 by the Supreme Court (Tong Ching vs.
Commissioner of
Immig ration),
the Court
laid down a principle that the period to
appeal in habeas cor pus proceedings is 15
days. So there is now confusion as
to
whether the period t o
appeal is
48
hours, or 15 days, or 30 days. So if ever
this
matter comes
out
i n
your
bar
examinations, I suggest that
you
give
these conflict statements. This is still an
unsettled issue with respect to the period
to appeal in habeas corp us proceedings.
But with the rest of special proceedings,
we follow the provisio n that
in special

proceedings as well as in civil actions

which
admit
of
multipl e appeals, the
period to appeal is
30
days. And the
requirement of
appeal is
a
n otice of
appeal and a record on appeal.
Change
of
Name. The
next special
proceeding is change of name under Rule 10
3, which should be taken up in relation with
Rule 108 that is cancellation of en
tries
in the office of
the local civil
registrar. The Supreme has already settle
d that the remedies provided in Rule 103
as well as in Rule 108 could be availed
of in one and the same proceeding. The
only requirement is that the procedural
requirements in these two rules must be
satisfied. Originally, before these deci
sions of the Supreme Court came out; change
of name was a procedure availed by a
petitioner in order to cause a substantial
change in his name. on the other han
d, Rule 108 was the recourse available for
change of clerical errors, correction
of
clerical errors or
innocuous errors
that are contained in the record of the
local civil registrar. So,
it was evident
then that the procedure in 103 could n
ot be summary. It was always adversarial
in character and the procedure in 108 w
as summary in character. But then comes
this decision of the Supreme Court which
said that even
the proceedings in 108
could be adversarial in nature. It could
involve substantial changes in the name of
a person. So the Supreme Court out wi
th this doctrine that when it comes to a
change of name, both 103 and 108 could

be
availed or
in one
and
the same
proceedings as
long
as
all
the
requirements on
these 2 rules are met.
What is the name of a person that could be
the subject of the special proce
eding for the change
of
name? in our
country, it is allowed by our society for a
person to have
many names.
We
have
baptismal names.
We
have
names
duly
recorded
in the office of the local civil registrar.
For purposes of Rule 103, the name
that
could be changed, that s judicially
under Rule 103 is the name that is writte n
on the certificate of birth at the office of
the local civil registrar. It doe
s not
pertain to the name that
is
contained in the baptismal certificate.
And in our society also, we have adopted
the Roman or
Spanish style
of
giving a
first name and a surname. So,
all of us
here have a 1st name as well as a surname.
The Supreme
Court
has
ruled that with
respect to the 1st name or proper name,
that
is almost subject to the discretion of our
parents. So if your name is Juan - th
at is because that s the name given to you
by your parents and your parents have a
bsolute choice this name. but when it comes
to the surname, it
is the law
which
determines the surname that could be used
by a person. So that he parents of a p erson
do not have the freedom to give any surname
to their children. The law req uires that
the surname must be the surname of the
legitimate father under
our ci vil law. So,

in our system, a person has a first name and

a surname. For purpose
s of Rule 103, a name that can be changed
could either be the surname or the 1st
name but
the change
must always be with

sufficient justification.
A
person who
desires to change his name cannot simply
go to court and tell the court I want t o
change
my name. He has to give a good
justification why he wants his name to b

e changed. And the law is quite strict when

it comes
to the requirements to be
f
ollowed for a petition for a change of name.
The 1st requirement is the in the petition
itself, in the caption of the pe tition and
in the caption of the order to be published
all the names must be cor rectly written. So
the name of the person is registered, the
name that will be
a dopted in case the
change
is
allowed and
all
the aliases
should be embodied
in t he petition for
change of name. They should also appear in
the order which is go ing to be published.
Petition for change
of
name is
another
proceeding in rem. The best evidence that
it is a proceeding in rem is that there is
a requirement for publication. And unless
there is such a publication of the correct
name and the name sought t o be adopted and
all
the aliases,
then the court will not
acquire jurisdiction
o ver
the petition.
Although there is no respondent since it is
a proceeding in re m, the office of
the
Solicitor General should always be notified
and it is pract ice of the Solicitor General
always to oppose any petition for the change
of nam e.
There are only a few reasons that have been
allowed by the Supreme Court fo r a person to
change his name. One of these grounds is if
the name is dishonorab le, or if the name is
hard to write or pronounce. But if the only
reason given f or the change
of name is

that it could subject the petitioner

to
derision or lau ghter whenever he uses the
name, according to the Supreme Court
that
may not
be enough
justification
for the
change of name.
If you are going to compare Rule 103 and Rule
108 although they could refer to the same
issue that is the change of name, there are
also marked differences between
these two
proceedings. In Rule 108, the petition for
the correction mus
t be filed in the locality where the office
of
the local civil registrar is loca ted
while in rule 103, the petition must be filed
in the place where
the petitio ner
has
resided for at least 3 years. And then in
Rule 108, the local civil regi strar must be
impleaded as a defendant / respondent. So
Rule 108 considers the l ocal civil registrar
as an indispensable party. If he is not made
an indispensab le party, then the court can
deny the petition.
The
proceeding in both
cases could be
adversarial depending on the change t hat is
sought in Rule
108. if
the change
is
substantial,
the
proceeding must
be
adversarial. Meaning to say that there are
parties who go to a formal trial and who will
introduce evidence to demonstrate the truth
of
their
allegations. Other wise
the
proceeding in Rule 108 could be summary in
character. You should also t ake of that new
law which authorizes an administrative change

(for clerical erro rs) to be accomplished by

the local civil registrar. We now have a law
authorizi ng these changes if there is a
plain clerical
error contained in
the
records of the local civil registrar. But I
understand that
this
is
not
usually
resorted to by applicants
although it is
purely administrative
because according to
most ap plicants that I have confirmed with,
it is more expensive to deal with the local
civil registrar than to go to court under
Rule 108. it seems that the fees bein
g charged by the local civil registrar are
going
to be spent if they simply go t o
court and
resort to Rule
108
applying
summary procedure. Nonetheless, we have now
a
statute
authorizing non-judicial or
administrative correction of clerical errors
that are contained in documents under
the
control of the local civil regi strar.
Absentees. The last special proceeding is
absentees. The other special proc eedings

mentioned in our
rules are no longer in
force. The constitution of the f amily home,
they have been repealed by the provisions of
the Family Code.
There
are effectively
3
proceedings
contemplated in the rule on absentees. The
1st is the proceeding for the appointment of
a representative. The 2nd proce eding is for
the declaration of
absence and
the 3rd
conceivable proceeding is th e settlement of
the estate of the absent or presumably dead
person. Under our Fa mily Code, there is now
a
petition
for
the
declaration
of
presumptive death. But this is only for the
purpose of allowing the spouse to remarry.
For other purpo ses, that is not
allowed.
But
if a
person disappears
and
his
whereabouts are unk nown during the 1st two
years, what the court can do is to appoint
a representat ive. That could be the subject
of
a
petition for the appointment of
a
representa

tive. If a person does not turn out within

this 2-year period or his whereabouts remain
to be unknown or nobody appears and shows
that
he
is
the
duly
authorized
representative of this party, then there
could be a petition for the declaratio
n of absence. If still the person does not
appear, then the recourse of the heir s or
the spouse or any person interested in his
estate
is
to file a
petition for the
settlement of his estate. That is we return
to settlement proceedings. Beca use that
will be the proceeding that will make use of
the presumptions contained in the Civil Code
that a person is dead. Again there could be
a
petition
to dec lare
the person

presumptively dead but only for a particular

purpose. But for th e purpose of settlement
of his estate, there is no need for the
court
order
to
d eclare
the
person
presumptively dead. There is a presumption
given in
our
laws, in the Code,
that a
person is presumed to be dead under certain
circumstances. O nce
these circumstances
are apparent, the only way by which we could
make use
of the presumption is to file a
proceeding for
the settlement
of
his
estate. Once the facts from
which
this
presumption will arise are proven the court
can
apply this presumption of
death and
settle the estate accordingly. But if later
on he appears, then the court will simply

order a reversion of the properties of this

person / party.
But
what
is
important to know in this
matter of absence is that there is no need
for a prior declaration of presumptive death
for
the purpose solely
of
set tling the
estate of
the absentee. An interested
party, a kin
or the surviving sp ouse, can
immediately
file
a
petition
for
the
settlement of his estate on the ba sis of
the presumption of death that is given by
the Civil Code.
Appeals.
The
last
rule
on
special
proceedings is
about appeals. And again I
wish to emphasize that the rules on appeal
in special
proceedings are different from

the rules on appeal in civil cases except

civil
actions which
admit
of
mul tiple
appeals. In
ordinary civil
cases, the
period to appeal is 15 days. There a re only
2
requirements to be
satisfied, file a
notice of appeal within the 15-da y period.
But in special proceedings, the period is
lengthened to 30
days.
Aside from
the
payment of appellate court docket fee, the
appellate must prepare a re cord on appeal
which must be submitted to the court for
approval. It is unlike a notice of appeal
which is not required to be approved by the
court.
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