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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.
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
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
A
settlement
court,
whether the
proceeding is testate or intestate, is a
co urt that acts with
a very
limited
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
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
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
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
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
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
and not
a matter of
procedure.
Supreme Court
said that it is true
presc
The
that
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
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
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,
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
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
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
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,
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
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