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Amen | Remedial Law Review 2 Notes | 2013

Remedial Law Review 2

Notes on Special Proceedings
Governing laws/rules:
Rules 72-109 pertains to the Rules on Special Proceedings. However, there are rules which
are considered ineffective, impractical or impasse, to wit, Rule 106 (Constitution of Family
Home), Rule 104 (Voluntary Dissolution of Corporations). Others remain but not used, say,
Rule 99 (Adoption and Custody of Minors). The rules on Guardianship were amended and
Rule 103 (Change of Name) and Rule 108 (Cancellation or Correction of Entries in the Civil
Registry) were both amended by RA 9048 which was further amended by RA 10172,
around last year, 2012.
Order of Importance

Settlement of Estate- this states the meat of Special Proceedings.


Guardianship- practically the same rules of procedure as settlement of estate,

because only that in settlement of estate, the subject is dead unlike in
guardianship, the subject is still alive. Physically alive, but mentally dead or a
minor. That is the difference between the two.


Adoption- although this is already studied in civil law; it is important because of

the new rule on adoption, not the laws on adoption (R.A. 3552, the Domestic
Adoption Act of 1998 as well as R.A. 8043, the Inter Country Adoption Law of
1995) not that because that is substantive. I am talking of the new rule on
adoption which took effect sometime in August 2004, thats why I think its the
second most important thing to discuss here.


Change of Name/ Correction of entries- Again, because of the new law. So

the possibility of being asked in the BAR is great. (Read also R.A. 9048).


Habeas Corpus- a peculiar kind of special proceeding

Definition of Special Proceeding

Under Rule 1, Section 3, a special proceeding is a remedy by which a person seeks to
establish a status, right or particular fact.
Why Special?
Because primarily, the rules mandating Special Proceedings are governed not by the
ordinary civil action rules, but has its own nuances. For example, because the objective is
the establishment of a right, status, or a particular fact, summons, here, is ordinarily not
needed. In special proceedings, there is no defendant, so there is no need for summons.
Publication, is the means through which the court can acquire jurisdiction over the case.
Summons, as we have studied is the way by which a court acquires jurisdiction over the
person of the defendant (Rule 14). The only exception is, of course, Habeas Corpus
Proceedings wherein you name a respondent but the respondent here is
different from a defendant because summons is not necessary.

The law on prescription will not apply. In that, the probate of the will can
still be done anytime because what the law only requires for period to
apply is on the duty to show/present the will within 10 days from
knowledge of death.

Case: Erlinda Pilapil and Heirs of Donata Ortiz Briones vs. Heirs of Maximino
Briones, GR No. 150175, February 5, 2007, J. Chico-Nazario.

FACTS: Petitioners are the heirs of the late Donata Ortiz-Briones (Donata), consisting of
her surviving sister, Rizalina Ortiz-Aguila (Rizalina); Rizalinas daughter, Erlinda Pilapil
(Erlinda); and the other nephews and nieces of Donata, in representation of her two other
sisters who had also passed away. Respondents, on the other hand, are the heirs of the
late Maximino Briones (Maximino), composed of his nephews and nieces, and
grandnephews and grandnieces, in representation of the deceased siblings of Maximino.
Maximino was married to Donata but their union did not produce any children. When
Maximino died, Donata instituted an intestate proceeding to settle he husbands estate
before the CFI. The court a quo issued a letter of administration appointing Donata as the
adminstratrix of the estate. Subsequently, it likewise award ownership of the properties to
Donata and the said order was recorded in the Primary Entry Book of the Register of
Deeds, and by virtue thereof, received new TCTs, covering the said properties, now in her
name. The controversy arise when Donata died and one of her nieces, petitioner herein
Erlinda Pilapil instituted before the RTC a petition for the administration of the intestate
estate of Donata. Erlinda and her husband Gregorio was later on appointed as the
administrators of the estate. Petitioner claimed exclusive ownership over three parcels of
land based on the two deeds of donation allegedly executed in her favor by her aunt
Donata. The other heirs opposed Erlindas claimed.
Meanwhile, Silverio Briones, filed a petition before the RTC for letters of
administration for the intestate estate of the late Maximino, which was initially
granted by the court, allowing Silverio to collect rentals from the said estate. But
then Gregorio filed with the RTC a Motion to Set Aside the Order, claiming that the said
properties were under his and his wife administration. The RTC set aside Silverios
administration. Hence, the heirs of Maximino filed a Complaint with the RTC against the
heirs of Donata for the partition, annulment, and recovery of possession of real property.
They alleged that Donata, as administratrix of the estate of Maximino, through fraud and
misrepresentation, in breach of trust, and without the knowledge of the other heirs,
succeeded in registering in her name the real properties belonging to the intestate estate
of Maximino. The RTC ruled in favor of the heirs of Maximino declaring that they are
entitled to the of the real properties covered by the TCTs issued in Donatas named.
And it ordered Erlinda to reconvey to the heirs the said properties and render an
accounting of the fruits thereof. The heirs of Donata appealed the said decision, the Court
of Appeals affirmed the RTCs decision. This case was then elevated before the Supreme
ISSUE: Whether the order issued by the CFI awarding the properties of Maximino to
Donata is void considering that no notices were sent to the other heirs of Maximino?
HELD: No. While it is true that since the CFI was not informed that Maximino still had
surviving siblings and so the court was not able to order that these siblings be given
personal notices of the intestate proceedings, it should be borne in mind that the
settlement of estate, whether testate or intestate, is a proceeding in rem, and that the
publication in the newspapers of the filing of the application and of the date set for the
hearing of the same, in the manner prescribed by law, is a notice to the whole world of the
existence of the proceedings and of the hearing on the date and time indicated in the
publication. The publication requirement of the notice in newspapers is precisely for the
purpose of informing all interested parties in the estate of the deceased of the existence of
the settlement proceedings, most especially those who were not named as heirs or
creditors in the petition, regardless of whether such omission was voluntarily or
involuntarily made.
Moreover, there stands a presumption, in the absence to the contrary that the CFI judge,
regularly performed his duties in the case which included sending out notices and requiring
the presentation of proof of service of such notices. The heirs of Maximino did not
profound sufficient evidence to debunk the presumption and that they only made general
denial of the knowledge of the case.
A review of the records fails to show any allegation or concrete proof that the CFI also
failed to order the publication in newspapers of the notice of the intestate proceedings and

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to require proof from Donata of compliance therewith. Neither can this Court find any
reason or explanation as to why Maximinos siblings could have missed the published
notice of the intestate proceedings of their brother.
Moreover, even if Donatas allegation that she was Maximinos sole heir does
constitute fraud, it is insufficient to justify abandonment of the CFI Order,
considering the nature of intestate proceedings as being in rem and the
disputable presumptions of the regular performance of official duty and lawful
exercise of jurisdiction by the CFI in rendering the questioned Order in the case
at bar.
1. Settlement of Estate (Rule 74- Summary Settlement of Estate)
What is an estate?
It is the totality of assets and liabilities of the decedent.

your birth certificate); and that the estate are such and such (describe with particularity if
the property happens to be a real property), valued accordingly; and that they are found
there (location of property). After complying with the same, you simply submit that to the
Register of Deeds and the Register of Deeds will act on it only after you comply with
the requirement of publication and if there are personal properties belonging to the
estate, you have to put up a bond according to the value or upon the discretion of the
register of Deeds. This is extrajudicial; hence, the court has no participation whatsoever.
You simply submit to the Register of Deeds, the Register of Deeds acts on it and if there is
already publication, once a week for 3 consecutive weeks in a newspaper of general
circulation, the Register of Deeds will simply transfer the title in favor of the affiant.
Requirements of both Extrajudicial Settlement of Estate

The necessary filing of public instrument or by stipulation in pending action for

partition or the sole heir in the latters affidavit of self-adjudication.


Bond with the said Register of Deeds in an amount equivalent to the value
of the personal property involved as certified to under oath by the parties.


Conditioned upon payment of any just claim charged with a liability to

creditors, heirs, or other persons for the full period of 2 years after such
distribution, notwithstanding any transfers of real estate that may have been


This shall be published in a newspaper of general circulation once a week for 3

consecutive weeks.

Why is that that the Settlement of Estate is complex?

It is because in this case, the person whose estate is subject to controversy is already NOT
2 Modes of Settlement of Estate



Summary Settlement of Estate of small value


Judicial partition (Rule 69)


Escheat (Rule 91)


Administrative/Conventional Settlement of Estate (Rule 73-90)


Extrajudicial partition


Affidavit of Self-Adjudication

Rules regarding Extrajudicial Settlement of Estates


It shall be presumed that the decedent left no debts if NO creditor files a petition
for letters administration within 2 years after the death of the decedent.


No extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof.

A. Summary Estate of Small Value

This is provided for under Rule 74 (Summary Settlement of Estates).

A. Extrajudicial Partition
Situation: When X, the decedent left A, B, C, and D as heirs. The four of them enter into
extrajudicial partition of the estate left by X. They had it published, and proceeded to the
Register of Deeds, and finally, the distribution of the estate in accordance with the
partition entered into. This pertains to an estate composing real properties.
However, if the estate composes personal properties, the four of the heirs can right
away distribute among themselves the personal properties left by X.
B. Affidavit of Self-Adjudication

Requirements under the Rule:


The gross value of the estate of a deceased person, (testate or intestate) DOES


A petition alleging the 1st requirement must be filed by an interested person.


This can only be done upon hearing which shall be held not less than 1 month
nor more than 3 months from the date of the last publication of a notice.


The notice must be published once a week for 3 consecutive weeks in a

newspaper of general circulation.


Notice to other interested persons as the court may direct.


This can be proceeded to by the court summarily and even without the
appointment of executor or administrator, and without delay to grant, if proper,
allowance of will. The purpose will be.

The requirements include the following:


The decedent dies without a will.


There is only one heir left by the decedent.


Whether or not there is a debt left by the decedent so long as if there is debt,
the estate can make good of it.

How do you undergo with the Affidavit of Self-Adjudication?

The word suggests already that it is an affidavit, which in there, you have to state that
your father or your mother died; and that he/she left the following properties; and that you
are the only heir of your parent (evidenced by the marriage contract of your parents and


To determine who are persons legally entitled to participate in the



To apportion and divide among the heirs after payment of such debts
of the estate as the court shall then find to be due, to persons in their
own right, if they are of lawful age and legal capacity or by their
guardians or trustees legally appointed and qualified, if otherwise,

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shall thereupon be entitled to receive and enter into the possession of

the portions of the estate so awarded to them respectively.

But if it happens that during the pendency of the proceeding, a will pops
up, and then the proceeding is discontinued.

To also make such other orders as may be just respecting the costs of
the proceedings and all other orders and judgments made or rendered
in the course thereof shall be recorded in the office of the clerk, and
the order of partition or award, if it involves real estate, shall be
recorded in the proper registers office.

If an heir, devisee, legatee, widow, widower or other person entitled to such

estate (PERSON WITH INTEREST) pops up and files a claim thereto with the
court within 5 years from the date of such judgment, then the
proceeding may be suspended and such appearing person with interest
shall establish his right otherwise, after the hearing, the property will go to
the government. This escheat proceeding is founded on the theory that all
lands belong to the State known as the Regalian Doctrine that you
studied under LTD (Land Titles & Deeds and he who claims otherwise has
the burden of proof so after the escheat proceedings, the property
belonging to the estate will go to the city or municipality where it is found)
and so as the Order of Succession in Civil Code.

The period of filing claims is WITHIN 5 YEARS FROM DATE OF JUDGMENT,

and such 5 years shall be reckoned from the DATE THE PROPERTY WAS
DELIVERED TO THE STATE. However, if the property has been sold, the
municipality or city shall be accountable only for such part of the proceeds

The court, at the instance of an interested party, or on its own

so only the income from the property shall be used.

So if the proceeding is in Manila, but the property escheated is in Calamba,

the property escheated located in Calamba will go to the City of Calamba
and not to the City of Manila. The same thing with personal property, where
it may be found and the Rule is very specific that the property will be spent
for the benefit of public schools, and public charitable institutions and
centers in said municipalities or cities.

Distributees shall be required to file a bond in an amount to be fixed by the

court for personal property, conditioned for the payment of any just claim.

Rules regarding Summary Settlement of Estate of Small Value


If within 2 years after settlement and distribution of an estate, an heir

or other person has been unduly deprived of his lawful participation in
the estate- such heir or such other person may compel the settlement of the
estate in the courts for the purpose of satisfying such lawful participation.


If within 2 years, it shall appear that there are debts outstanding

against the estate which have not been paid or that an heir or other
person has been unduly deprived of his lawful participation payable in
money- the court may by order for that purpose, after hearing settle the
amount of such debts or lawful participation and order how much and in what
manner each distribute shall contribute in the payment thereof and may issue
execution, if circumstances require, against the bond or against the real estate
belonging to the deceased or both.


When can minor or incapacitated person file a claim against estate in

this Rule? If on the date of the expiration of the period of 2 years, the person
authorized to file a claim is a minor, mentally incapacitated, or is in prison or
outside of the Philippines, he may present his claim within one (1) year after
such disability is REMOVED.

What are the orders of the court after a petition is sufficient in form and

B. Judicial Partition
This is provided for under Rule 69 on Partition.
C. Escheat

In another form of Judicial Settlement, Escheat tells us that if a person dies

without a will, without an heir, and no debts, then the Office of the
Solicitor General or his representative (such as the provincial or city
prosecutor) may file a petition, under the directive of the President
of the Philippines, an Escheat Proceeding.
Requirements before filing:

Person dies intestate


Is there a possibility to still file an escheat

proceeding despite the presence of a will? Yes.
Even if the decedent died testate but his will was
NOT PROBATED, it is as if he has no known heirs and
there are no persons entitled to his property.


Seized of real or personal properties in the Philippines


Left no heir or person by law entitled to the same

Where to file?

If resident, RTC where the deceased last resided or in which he

had estate.


If non-resident, RTC of the place where his estate is located.


Make an order of hearing and such shall NOT be more than 6 months after entry
of order.


Direct the publication of a copy of the order at least once a week for 6
consecutive weeks.

What will be the remedy of the Respondent?

When the petition does not state facts which entitle the petitioner to the remedy prayed
for, the respondent may file a MOTION TO DISMISS the petition.
To whom will the property escheated be assigned?
1. If personal property- to the Municipality or city where he last resided.
2. If real property- to the Municipality or city where the property is situated.
3. If the deceased never resided in the Philippines- to the Municipality of city
where the property may be found.

Under Rule 91, Sec.5 is another form of escheat because that was given in
the BAR 5 years ago. This speaks of REVERSION. In other words, the
property was acquired by an individual in violation of the Constitution.
Under the Constitution, any person, even foreigners who were former
Filipinos, can now acquire property in the Philippines and that was given
more strength because of the Dual Citizenship Law. Actions for REVERSION
are proper in illegal sales of land to disqualified aliens. This will in no

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way apply to properties taken from enemy nationals after WORLD WAR II
and which were reacquired by the Republic because such reacquisition was
in pursuant to the Philippine Property Act of 1946 and not by virtue of an
ESCHEAT PROCEEDING. The action must be instituted in the province where
the land lies in whole or in part.

Even if title thereto was not transferred to the Government, can it

be escheated to local government? No.

The thirds instance of escheat is that of unclaimed dormant accounts for 10

years under the Unclaimed Balance Act which shall be filed at the RTC of
the place where the dormant deposits are found.

The right to escheat may be waived expressly or impliedly.

The proceedings in Escheat CANNOT BE CONVERTED INTO

SETTLEMENT OF ESTATE. For the distribution of the estate of the
decedent to be instituted, the proper petitions must be presented and the
proceedings should comply with the requirements of the Rule. This is so
because, an escheat proceeding does not have the power to order or
proceed with the distribution of the estate of a decedent in escheat
proceedings and adjudicate the properties to the oppositor. (Municipality of
Magalloon, Negros Occidental vs. Ignatius Henry, Oct. 26, 1960)

D. Administrative/Conventional Settlement of Estate

This is provided for under Rule 73-90 of the Rules of Court.
Rule 73- Venue and Processes
In this Rule, the word VENUE never appeared. But the word jurisdiction appears three
What court has jurisdiction over settlement of estate cases?
The jurisdiction is determined based on the GROSS VALUE of the property subject to
settlement. It is in RTC, if the gross value exceeds 300,000 outside Metro Manila or if it
exceeds 400,000 within Metro Manila. However, it is in MTC if the otherwise appears.
What will be the relevance of VENUE in this Rule?
This is provided for in the long line of cases starting from Cuenco vs. Cuenco, Fule vs. CA
and latest is San Luis vs. San Luis. It is now settled (because of these cases) that
residence is only a matter of venue. It is not a matter of jurisdiction.
Cuenco vs. Cuenco
This case of Cuenco is about Senator Cuenco. That Cuenco Street in Quezon City,
parallelled to Espaa or Quezon Blvd. He was a resident of Cebu but also had a house in
Quezon City because he was a member the Senate. When he died in Quezon City, his
residence was in Cebu. When he died, he was already a widower at the time, so he had
two families: the first family with his first wife and the second family with his second wife.
His second wife, staying with him in Quezon City, filed a petition for the settlement of
his estate in the RTC (Then CFI) of Q.C. After the 9- day novena for his demise, the
heirs of Senator Cuenco in Cebu City, filed a petition for settlement of his estate in Cebu.
This reached the SC. The issue was in fact wrong: Which court has jurisdiction? It is
not a matter of jurisdiction but only of venue. But the greater error here is not the
error of the petitioners but the error of the Court. Why? Because the Q.C. Court on its own
initiative (motu propio) said we are going to give way to the court in Cebu to settle the
estate. That cannot be done because under the Rule, the court which first takes
cognizance of a petition for settlement of estate, takes it to the exclusion of all
other courts. (Exclusionary Rule in Special Proceedings) And so, which court has

jurisdiction? Both courts have jurisdiction actually, but because of the Rule, since it was
first filed with the Q.C. Court, it was already taken cognizance of by said court in
Q.C. to the exclusion of all other courts, including the Cebu Court. That is why if
ever the court cedes its authority in favor of the Cebu Court, that is wrong. It should have
been correct if anybody interested in the petition files a motion to dismiss on the ground of
improper venue but there was none in Quezon City court NOT in Cebu court.
In one of the Bar Exams using Cuenco vs. Cuenco, way back in 1992, this was treated by
the examiner saying that a motion to dismiss was filed with the Cebu Court and the Cebu
Court granted it. Wrong. Why? Because the Cebu court did not acquire jurisdiction
because the petition was first filed in Q. C. and there can be no dual jurisdiction
here because the Rule says: the court acquires jurisdiction to the exclusion of all
other courts.
This case was followed by the case of Eusebio vs. Eusebio and finally settled in the case of
Fule vs. CA, a 1975 case. Take note of that doctrine because that is very basic in
Settlement of Estate under Sec. 1 of the Rule, there does not speak of jurisdiction but only
of venue. In Fule it has been settled that the residence is the actual place of
So that if a person has two residences, the Fule case settled that residence is the place
of actual habitation or it may not be the place of actual habitation, provided
there is animus manendi (intent to remain) and animus revertendi (intent to
Rule 75- Production of Will; Allowance of Will Necessary
Under the Rule, it says that, No will shall pass either real or personal property unless
proved and allowed in the property court. And that subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.
Are you bound to file a petition?
No. The obligation there is only to deliver the will. But if you do file a petition, because you
are the custodian of the will, you must have an interest in the estate. You may either be
the named administrator, a devisee, a legatee, or a creditor, and with more reason, if you
are an heir, you have an interest. If you are in the custody of the will, and you filed a
petition for settlement of estate, you have to attach the will in your petition. But if you are
not in custody of the will and you are interested in the settlement of the estate ,
you simply file a petition without the will annexed.
This can also be evidenced by the provision under Rule 76 Section 3 that, upon
presentation of the will to the court having jurisdiction, the court will now set the date for
hearing thereof with the exception when the testator on its own initiative probated his will
during his lifetime, in which case, no publication is required and notice will only be
required to be made to compulsory heirs. Hence, SURRENDER here is tantamount to a
Situation: H is a resident of Caloocan and he executed a will. He gave it to his kumpadre as
a custodian who lived in Baguio. H died in Caloocan. The kumpadre surrendered to RTC of
Baguio City which is the court of proper jurisdiction, the will executed by H.
May the heir still file a petition? No, because of the EXCLUSIONARY RULE under Rule 73
in that mere surrender of the will commences the settlement of the estate.
What court has jurisdiction? Again, it depends on the gross value of the estate

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What if all the heirs resided in Caloocan City, and they filed petition for probate
in RTC of Caloocan, given that the surrender of the will was done in RTC of
Baguio where the custodian resided, can the heir move to dismiss the case in
Baguio? Yes, because RTC of Caloocan has no jurisdiction since the commencement of the
settlement was already done in RTC of Baguio which is understood to be to the exclusion of
other courts.

It is conclusive as to the execution and validity of the will (even against the State). Thus, a
criminal case against the forger may not lie after the will has been probated because the
probate of the will is conclusive as to its execution and validity.

What if the petition now was filed in RTC Baguio City, and you move for its
dismissal in yet another RTC branch, how will you rule on the same? The same
thing, you cannot do so because once a branch of RTC takes cognizance of the case, it is
still understood that it is to the exclusion of the other branches of such RTC, if any.

It is with respect only to the determination of the extrinsic validity (due execution), not the
intrinsic validity of testamentary dispositions.

What is the issue in probate of the will?


If you are a custodian of a will of the decedent, what is your obligation?

On Principle of Practical Consideration


The waste of time, effort, expense, plus added anxiety are the
practical considerations that induce us to a belief that we might as
well meet head on the issues of the validity of the provisions of the
will in question.


Where the entire or all testamentary dispositions are VOID and where
the defect is apparent on its face.

To deliver to the court the will within 20 days after the death. (Sec. 2, Rule 75)
Rules under this Rule:

There is a corresponding sanctions to custodian and executor and also to

persons retaining the will when not heeding to the mandate/order of the court,
which are:

A person who neglects any of the duties of a custodian without excuse

satisfactory- fined not exceeding 2,000.


A person having custody of a will who neglects without reasonable

cause to deliver the same when ordered to do so- committed to prison
and there kept until delivery.

Rule 76- Allowance or Disallowance of Will

What is Probate?
It is the act of proving in a court a document purporting to be the last will and testament of
a deceased in order that it may be officially recognized, registered and its provisions
carried out insofar as they are in accordance with the law or also known as allowance of
the will.
What will be the contents of the Petition?
The following must be shown on the petition as far as known to the petitioner:

The Jurisdictional Facts:


Death of the testator


His residence at the time of death or the province where estate was
left by the decedent who is non-resident


Names, ages and residences of the heirs, legatees and devisees of the testator
or decedent


Probate value and character of the property of the estate


Name of the person for whom letters are prayed for


Name of the person having custody of the will if it has not been delivered to the

*No defect in the petition shall render VOID the allowance of the will or the
issuance of letters testamentary or of administration with the will annexed.

Case: Teresita De Leon, Zenaida Nicolas and Heirs of Antonio Nicolas vs. Court of
Appeals and Ramon Nicolas GR No. 128781, August 6, 2002, J. Austria-Martinez.
FACTS: Petitioner Teresita De Leon was appointed as the administratrix of the estate of
Rafael C. Nicolas, her father. Deceased spouses Rafael and Salud Nicolas were the parents
of petitioner Teresita N. de Leon, Estrellita N. Vizconde, Antonio Nicolas (deceased husband
of petitioner Zenaida Nicolas and predecessor of the petitioners Heirs of Antonio Nicolas),
Ramon Nicolas and Roberto Nicolas. Private Respondent Ramon Nicolas filed a
Motion for Collation claiming that the deceased Rafael Nicolas had given several
properties to his grandchildren and that administratrix-petitioner Teresita failed
to include the same in the inventory of the estate of the decedent. The trial court
granted the motion and ordered the collation of the properties allegedly received by the
grandchildren during the lifetime of the decedent to the estate proceeding. Petitioner filed
a Motion for Reconsideration alleging that the properties subject of the Order "were
already titled in their names years ago" and those titles may not be collaterally
attacked in a motion for collation. The RTC issued an Order denying said motion, ruling
that it is within the jurisdiction of the court to determine whether titled properties should
be collated, citing Section 2, Rule 90 of the Rules of Court which provides that the final
order of the court concerning questions as to advancements made shall be binding on the
person raising the question and on the heir. Based on the said order, Teresita filed a Motion
for Reconsideration, and this time, the trial court ordered Ramon Nicolas to prove to the
satisfaction of the court whether the properties disposed of by the late Rafael Nicolas
before the latters death was gratuitous or for valuable consideration. The Court believes
that he or she who asserts should prove whether the disposition of the properties was
gratuitously made or for valuable consideration. Subsequently, the RTC removed
petitioner as the administratrix on the ground of conflict of interest considering her claim
that she paid valuable consideration for the subject properties acquired by her from her
deceased father and therefore the same should not be included in the collation. Again,
Teresita filed a Motion for Reconsideration praying that her appointment as administratrix
be maintained that the properties acquired by them be declared as the exclusive
properties of the registered owners therein and not subject to collation. The trial court
denied the said motion. The case was subsequently elevated via petition for certiorari
before the Court of Appeals. However, it affirmed the decision of the lower court ruling that
the order of the trial court directing the inclusion of the properties therein enumerated in
the estate of the deceased Rafael Nicolas had already become final for failure of
petitioners to appeal from the order of collation. Hence the matter was raised before the
Supreme Court.

What is the effect of the probate of the will?


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1. Whether the order of the trial court to include properties received by the heirs for
collation is final and binding upon the heirs or third persons?

mere order including the subject properties in the inventory of the estate of the

2. Whether the order


The Court held in Valero Vda. de Rodriguez v. Court of Appeals that the order of
exclusion (or inclusion) is not a final order; that it is interlocutory in the sense that it did
not settle once and for all the title to the subject lots; that the prevailing rule is that for the
purpose of determining whether a certain property should or should not be included in the
inventory, the probate court may pass upon the title thereto but such determination is not
conclusive and is subject to the final decision in a separate action regarding ownership
which may be instituted by the parties.










an order


(1) No. Contrary to the finding of the Court of Appeals that the order of the trial court had
become final for failure of petitioners to appeal therefrom in due time, we hold that said
order is interlocutory in nature. Our pronouncement in Garcia v. Garcia supports this
"The court which acquires jurisdiction over the properties of a deceased person through
the filing of the corresponding proceedings, has supervision and control over the said
properties, and under the said power, it is its inherent duty to see that the inventory
submitted by the administrator appointed by it contains all the properties, rights and
credits which the law requires the administrator to set out in his inventory . In compliance
with this duty the court has also inherent power to determine what properties, rights and
credits of the deceased should be included in or excluded from the inventory. Should an
heir or person interested in the properties of a deceased person duly call the courts
attention to the fact that certain properties, rights or credits have been left out in the
inventory, it is likewise the courts duty to hear the observations, with power to determine
if such observations should be attended to or not and if the properties referred to therein
belong prima facie to the intestate, but no such determination is final and ultimate
in nature as to the ownership of the said properties." (Emphasis supplied)
A probate court, whether in a testate or intestate proceeding, can only pass upon
questions of title provisionally. The rationale therefor and the proper recourse of the
aggrieved party are expounded in Jimenez v. Court of Appeals:
"The patent reason is the probate courts limited jurisdiction and the principle that
questions of title or ownership, which result in inclusion or exclusion from the inventory of
the property, can only be settled in a separate action.
"All that the said court could do as regards said properties is determine whether they
should or should not be included in the inventory or list of properties to be administered by
the administrator. If there is a dispute as to the ownership, then the opposing parties and
the administrator have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so."

Based thereon, we find that what the parties and the lower courts have perceived to be as
an Order of Collation is nothing more than an order of inclusion in the inventory of the
estate which, as we have already discussed, is an interlocutory order. The motion for
collation was filed with the probate court at the early stage of the intestate estate
proceedings. We have examined the records of the case and we found no indication that
the debts of the decedents spouses have been paid and the net remainder of the conjugal
estate have already been determined, and the estates of the deceased spouses at the
time filing of the motion for collation were ready for partition and distribution. In other
words, the issue on collation is still premature.
Who may file for the allowance of will?
Any party who has direct and material interest in the will or estate consisting of:
D- Devisee
E- Executor
L- Legatee
T- Testator
A- Any other person interested in the estate
Why may be disqualified?
Here, you have to consider the last person allowed filing, Any other person INTERESTED
IN THE ESTATE which means any person who would be benefited by the estate such as
an HEIR or one who has a claim against the estate, such as CREDITOR. Hence, those not
having such qualification may be disqualified to file for the allowance of the will.

Further, In Sanchez v. Court of Appeals, we held:

"[A] probate court or one in charge of proceedings whether testate or intestate cannot
adjudicate or determine title to properties claimed to be a part of the estate and which are
claimed to belong to outside parties. All that the said court could do as regards said
properties is to determine whether they should or should not be included in the inventory
or list of properties to be administered by the administrator. If there is no dispute, well and
good, but if there is, then the parties, the administrator, and the opposing parties have to
resort to an ordinary action for a final determination of the conflicting claims of title
because the probate court cannot do so."
Guided by the above jurisprudence, it is clear that the Court of Appeals committed
an error in considering the assailed order as final or binding upon the heirs or
third persons who dispute the inclusion of certain properties in the intestate
estate of the deceased Rafael Nicolas. Under the foregoing rulings of the Court, any
aggrieved party, or a third person for that matter, may bring an ordinary action for a final
determination of the conflicting claims.
(2) It is an order of an exclusion/inclusion.
Such Order in question is an interlocutory and not a final order is more apparent than real.
This is because the questioned Order was erroneously referred to as an order of collation
both by the RTC and the appellate court. For all intents and purposes, said Order is a

Situation: If A executed the will and in his will, he named B as devisee, C as legatee and
spurious son D, so as W as sister.
Who among the persons stated in the will may file a petition?
All except W because the latter cannot file because under the Rule on Succession, a sister
is not one in which will be inherited by the decedent unless the spurious son is not
included in the facts.
What are these concepts referring to?

No witness rule


One witness rule



This is only applicable in case there is a lost or destroyed holographic

will or the testator probated his own holographic will. General rule: A
holographic will if destroyed CANNOT be probated. Except: If there
exists a photostatic or Xerox copy thereof.
In probating holographic will or notarial will and there is no contest

Two witness rule

Amen | Remedial Law Review 2 Notes | 2013



What if the probated will abroad is not established as a fact of such probate,
what laws will apply?
The doctrine on processual presumption will be applicable, in a sense that foreign law is
considered as the same as that of the domestic law
Which court has jurisdiction for re-probate of will?
It is in the RTC because the subject matter, that is, probate of will ( considered as foreign
judgment), is incapable of pecuniary estimation.

Three witness rule



In case of a loss or destruction of notarial will, for the purpose of

establishing the execution and validity thereof, NO NOTARIAL WILL
SHALL BE PROVED in circumstances mentioned, when the will is
proved to have been in existence at the time of death of the testator
or is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, UNLESS its provisions
are clearly and distinctly proved by at least 2 credible
witnesses. If proved, the provisions thereof must be distinctly stated
and certified by the Judge under the seal of the court and the
certificate must be filed and recorded.
Required if someone else filed the probate of the will. If a holographic
will is contested, the same shall be allowed if at least three (3)
witnesses who know the handwriting of the testator and
signature. Otherwise, an expert witness is required.

Where is the venue?

It is in the place of final, and actual abode of the decedent. In the absence of residence,
the place where any of the property is located to the exclusion of other venues.

Four witness rule


In case of notarial will to be probated, whether contested or not,

referring to the number of subscribing witnesses. It is required that all
the subscribing witnesses and the notary in case wills executed under
Civil Code.

Who may file?

Any person interested in the estate.
In the petition for re-probate, what should be alleged?

What are the grounds for Disallowing Wills?


That the testator was domiciled in a foreign country.

F- If the will is not executed and attested as required by law; formalities thereof


That the will has been admitted to probate in such country.

I- If the testator was insane or otherwise mentally incapable to make a will, at the time of
its execution


That the foreign court was, under the laws of said foreign country, a probate
court with jurisdiction over the proceedings.


The law on probate procedure in said foreign country proof of compliance



The legal requirements in said foreign country for the valid execution of the

D- If it was executed under duress, or the influence of fear or threats

U- If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person for his benefit
S- If the signature of the testator was procured by fraud or trick, and he did not intend that
the instrument should be his will at the time of fixing his signature thereto
Rule 77- Allowance of Will Proved Outside of Philippines and Administration of
Estate Thereunder

There should be appointment of ancillary administrator (The administrator

appointed to take charge of the properties in the Philippines, domestic) and domiciliary
administrator (The administrator domiciled in foreign country)

What is the rationale for the re-probate?

Effects of the allowance of a will under this Rule:

This is because the Philippine courts do not recognize foreign judgment, and such that
probate of the will abroad is one kind of a foreign judgment.


The will shall be treated as if originally proved and allowed in Philippine courts.


Letters testamentary or administration with a will annexed shall extend to all

estates in the Philippines.

How will this be enforced in our jurisdiction?


After payment of just debts and expenses of administration, the residue of the
estate shall be disposed of as provided by law in cases of estates in the
Philippines belonging to persons who are inhabitants of another state or country.

In relation to Rule 39, Section 48, the effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the judgment or final order will be;

Conclusive upon the title to the thing- in case of a judgment or final order upon
specific thing;


Presumptive evidence of a right as between the parties and their successors in

interest by subsequent title- in case of judgment against a person.

In either case, the judgment or final order may be repelled by

evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud or clear mistake of law or fact.

Rule 78- Letters Testamentary and Letters of Administration, When and to Whom
What is Letter Testamentary and Letter of Administration?
Letter Testamentary- It is a process in which there is an appointment of an executor.
Letter of Administration- It is a process in which there is no appointment of an executor
Can a letter of administration be issued even if a will provides for executor?

Amen | Remedial Law Review 2 Notes | 2013

Yes. Section 4 hereto provides that a letter of administration may be issued even if there
exist a will designating an executor, if the latter is incompetent, refuses to accept the
trust and fails to give a bond.
When letters of administration be granted?

If no executor is named in the will,


or the executor/s are incompetent, refuse to accept the trust or fails to give a


or a person dies intestate.

To whom letters of administration granted?

2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of
decedents son, Emilio I, respondent is preferred, being the "next of kin" referred to by
Section 6, Rule 78 of the Rules of Court, and entitled to share in the distribution of
Cristinas estate as an heir;
3. Jurisprudence has consistently held that Article 99216 of the Civil Code bars the
illegitimate child from inheriting ab intestato from the legitimate children and relatives of
his father or mother. Thus, Emilio III, who is barred from inheriting from his grandmother,
cannot be preferred over respondent in the administration of the estate of their
grandmother, the decedent; and
4. Contrary to the RTCs finding, respondent is as much competent as Emilio III to
administer and manage the subject estate for she possesses none of the disqualifications
specified in Section 1, Rule 78 of the Rules of Court. The motion of reconsideration was
subsequently denied, petitioner filed a certiorari before the Supreme Court.

There is preference of persons allowed by Rules, as follows:


To the surviving spouse, or next of kin, or both, in the discretion of the court, or
their nominee, if competent and willing to serve.


In default of the foregoing, to one or more of the principal creditors, if

competent and willing to serve.


In default of the preceding, to such other person as the court may select.

Case: In the matter of the Intestate Estate of Cristina Aguinaldo-Suntay and

Emilio Suntay III vs. Isabel Cojuangco-Suntay GR No. 183053, June 6, 2010, J.
FACTS: On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr.
Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay
(Emilio I), predeceased both Cristina and Federico. At the time of her death, Cristina was
survived by her husband, Federico, and several grandchildren, including herein petitioner
Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay. During his
lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children,
namely: herein respondent, Isabel; Margarita; and Emilio II, all surnamed CojuangcoSuntay. Emilio Is marriage to Isabel Cojuangco was subsequently annulled. Thereafter,
Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Taedo (Nenita), by
two different women, Concepcion Mendoza and Isabel Santos, respectively.
Despite the illegitimate status of Emilio III, he was reared ever since he was a
mere baby, nine months old, by the spouses Federico and Cristina and was an
acknowledged natural child of Emilio I. Nenita is an acknowledged natural child of
Emilio I and was likewise brought up by the spouses Federico and Cristina. When Christina
died, Federico adopted their illegitimate grandchildren Emilio III and Nenita. Respondent
Isabel Cojuangco - Suntay filed a petition for the issuance of the letters of
administration in her favor for the administration of the estate of Cristina. This
was opposed by Federico claiming that as her spouse, he is better suited in
administering the properties of his deceased wife.
He later filed a manifestation nominating his adopted son, Emilio the III, as administrator of
the properties of Cristina in the event that he would be better adjudge as the one with
better right to the letter of administration. In the course of the proceeding, Federico died.
The trial court issued an order appointing Emilio III as the administrator of the decedent
Cristina estate. Aggrieved, respondent appealed before the Court of Appeals, which
reversed and set aside the decision of the RTC and revoked the letters of administration
issued to Emilio III and appointed respondent as the administratrix of the intestate estate.
The CA argued that:
1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federicos
appointment as administrator of the estate, he being the surviving spouse of Cristina, the
decedent. The death of Federico before his appointment as administrator of Cristinas
estate rendered his nomination of Emilio III inoperative;

ISSUE: Who among between Emilio III and

administrator of the decedent estate?

Isabel, is better qualified to act as

HELD: BOTH. From the foregoing, it is patently clear that the CA erred in excluding Emilio
III from the administration of the decedents estate. As Federicos adopted son, Emilio IIIs
interest in the estate of Cristina is as much apparent to this Court as the interest therein of
respondent, considering that the CA even declared that "under the law, [Federico], being
the surviving spouse, would have the right of succession over a portion of the exclusive
property of the decedent, aside from his share in the conjugal partnership." Thus, we are
puzzled why the CA resorted to a strained legal reasoning Emilio IIIs nomination was
subject to a suspensive condition and rendered inoperative by reason of Federicos death
wholly inapplicable to the case at bar.
Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of
an administrator of an estate:
SEC. 6. When and to whom letters of administration granted. If no executor is named in
the will, or the executor or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of the person to apply for administration or to
request that administration be granted to some other person, it may be granted to one or
more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.
However, the order of preference is not absolute for it depends on the attendant facts and
circumstances of each case. Jurisprudence has long held that the selection of an
administrator lies in the sound discretion of the trial court. In the main, the attendant facts
and circumstances of this case necessitate, at the least, a joint administration by both
respondent and Emilio III of their grandmothers, Cristinas, estate.
In the case of Uy v. Court of Appeals, we upheld the appointment by the trial court of a
co-administration between the decedents son and the decedents brother, who was
likewise a creditor of the decedents estate. In the same vein, we declared in Delgado
Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian that:
[i]n the appointment of an administrator, the principal consideration is the interest in the
estate of the one to be appointed. The order of preference does not rule out the
appointment of co-administrators, specially in cases where justice and equity demand that
opposing parties or factions be represented in the management of the estates, a situation
which obtains here.

Amen | Remedial Law Review 2 Notes | 2013

Similarly, the subject estate in this case calls to the succession other putative heirs,
including another illegitimate grandchild of Cristina and Federico, Nenita Taedo, but who
was likewise adopted by Federico, and the two (2) siblings of respondent Isabel, Margarita
and Emilio II. In all, considering the conflicting claims of the putative heirs, and the
unliquidated conjugal partnership of Cristina and Federico which forms part of their
respective estates, we are impelled to move in only one direction, i.e., joint
administration of the subject estate.
Hence, the Letters of Administration over the estate of decedent Cristina
Aguinaldo-Suntay shall issue to both petitioner Emilio A.M. Suntay III and
respondent Isabel Cojuangco-Suntay upon payment by each of a bond to be set by
the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117M-95.
Who are incompetent to serve as executor or administrator?
They could be either of the following:

A minor (Obviously, a minor is incapacitated to manage the trust)


A non-resident of the Philippines (The reason for disqualifying such is because it

would be impossible for such person not residing therein to administer the
estate of the deceased or be around to satisfy for the duties of an executor or


A person in the opinion of the court is unfit to execute the duties of the trust by
reason of:


Presbyterian at Wilshire Boulevard, Los Angeles, California, U.S.A. He had no

children with respondent but lived with her for 18 years from the time of their marriage up
to his death on December 18, 1992. Respondent then sought the dissolution of their
conjugal partnership assets and the settlement of Felicisimo estate. She filed a petition for
letters of administration before the trial court. Furthermore, she alleged that at the time of
his death, the decedent was residing at 100 San Juanico Street, New Alabang Village,
Alabang, Metro Manila; that the decedents surviving heirs are respondent as legal spouse,
his six children by his first marriage, and son by his second marriage; that the decedent
left real properties, both conjugal and exclusive, valued at P30,304,178.00 more or less;
that the decedent does not have any unpaid debts. Respondent prayed that the conjugal
partnership assets be liquidated and that letters of administration be issued to her.
Petitioners Rodolfo San Luis and her sister Linda, the children of Felicisimo by his first
marriage, filed a motion to dismiss on the grounds of improper venue and failure
to state a cause of action. Rodolfo claimed that the petition for letters of
administration should have been filed in the Province of Laguna because this
was Felicisimos place of residence prior to his death. However, the trial court
denied the petition. The court a quo dismissed the petition for letters of administration. It
held that, at the time of his death, Felicisimo was the duly elected governor and a resident
of the Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna
and not in Makati City. On appeal, the Court of Appeals reversed the trial court which ruled
that under Section 1, Rule 73 of the Rules of Court, the term "place of residence" of the
decedent, for purposes of fixing the venue of the settlement of his estate, refers to the
personal, actual or physical habitation, or actual residence or place of abode of a person
as distinguished from legal residence or domicile. It noted that although Felicisimo
discharged his functions as governor in Laguna, he actually resided in Alabang,
Muntinlupa. Thus, the petition for letters of administration was properly filed in Makati City.


Drunkenness (Such extent as would affect the capacity of a person by

reason thereto, in managing the trust with respect to such estate)




Want of Understanding or Integrity


Where is the proper venue to file the letters of Administration?


By reason of conviction of an offense involving moral turpitude

(Remember that this ground pertains only to an OFFENSE, not a
CRIME unlike in Adoption, in this case, it will pertain to some offenses
relating to immorality, say, urinating in public)


Whether Felicidad has the capacity to be an administrator in the estate of the

deceased partner/spouse.

The executor of an executor shall not administer the estate of the first testator
(This disqualification is in order to prevent possible conflict of interest or
commingling of estates of the two testators. An illustration will be in that, if A is
the first testator, who appointed B as his executor in the formers will, B died
with an estate appointing C as his executor. In this case, C cannot be allowed to
administer the estate of A because he is now managing the estate of B as the

Case: Edgar San Luis vs. Felicidad San Luis GR No. 150175, February 5, 2007, J.
FACTS: The instant case involves the settlement of the estate of Felicisimo T. San Luis
(Felicisimo), who was the former governor of the Province of Laguna. During his lifetime,
Felicisimo contracted three marriages. His first marriage was with Virginia Sulit on March
17, 1942 out of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita
and Manuel. On August 11, 1963, Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a
son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a
Complaint for Divorce before the Family Court of the First Circuit, State of Hawaii, United
States of America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding
Child Custody on December 14, 1973.
On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then
surnamed Sagalongos, before Rev. Fr. William Meyer, Minister of the United


(1) It is in Makati City. Under Section 1, Rule 73 of the Rules of Court, the petition for
letters of administration of the estate of Felicisimo should be filed in the Regional Trial
Court of the province "in which he resides at the time of his death." In the case of Garcia
Fule v. Court of Appeals, we laid down the doctrinal rule for determining the residence
as contradistinguished from domicile of the decedent for purposes of fixing the venue of
the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like the terms "residing" and "residence," is
elastic and should be interpreted in the light of the object or purpose of the statute or rule
in which it is employed. In the application of venue statutes and rules Section 1, Rule 73
of the Revised Rules of Court is of such nature residence rather than domicile is the
significant factor. Even where the statute uses the word "domicile" still it is construed as
meaning residence and not domicile in the technical sense. Some cases make a distinction
between the terms "residence" and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same meaning as the term
"inhabitant." In other words, "resides" should be viewed or understood in its popular sense,
meaning, the personal, actual or physical habitation of a person, actual residence or place
of abode. It signifies physical presence in a place and actual stay thereat. In this popular
sense, the term means merely residence, that is, personal residence, not legal residence or
domicile. Residence simply requires bodily presence as an inhabitant in a given place,
while domicile requires bodily presence in that place and also an intention to make it ones
domicile. No particular length of time of residence is required though; however, the
residence must be more than temporary. (Emphasis supplied)

Amen | Remedial Law Review 2 Notes | 2013

The rulings in Nuval and Romualdez are inapplicable to the instant case because they
involve election cases. Needless to say, there is a distinction between "residence" for
purposes of election laws and "residence" for purposes of fixing the venue of actions. In
election cases, "residence" and "domicile" are treated as synonymous terms, that is, the
fixed permanent residence to which when absent, one has the intention of returning.
However, for purposes of fixing venue under the Rules of Court, the "residence"
of a person is his personal, actual or physical habitation, or actual residence or
place of abode, which may not necessarily be his legal residence or domicile
provided he resides therein with continuity and consistency.
Hence, it is
possible that a person may have his residence in one place and domicile in
From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for
purposes of fixing the venue of the settlement of his estate. Consequently, the subject
petition for letters of administration was validly filed in the Regional Trial Court which has
territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on
December 17, 1993. At that time, Muntinlupa was still a municipality and the
branches of the Regional Trial Court of the National Capital Judicial Region which
had territorial jurisdiction over Muntinlupa were then seated in Makati City as
per Supreme Court Administrative Order No. 3. Thus, the subject petition was
validly filed before the Regional Trial Court of Makati City.

posted for the same period in 4 public places in the province and 2 public places in the
municipality where the decedent last resided.
Can Letters testamentary be objected to?
Yes, it may be objected and whatever resolution or resolution with that respect is FINAL
AND APPEALABLE. Hence, this made true the existence of MULTIPLE APPEALS in Special
Proceedings. In that case, a RECORD ON APPEAL is required to be filed since each part is
complete in itself, say the Settlement, Probate or Appointment of Administrator. But with
respect to SPECIAL ADMINISTRATOR, it would be a different remedy, because the
appointment of the same is held INTERLOCUTORY, hence, UNAPPEALABLE and the
remedy therefrom is PETITION FOR CERTIORARI alleging grave abuse of discretion.
Rule 79- Opposing Issuance of Letters Testamentary. Petition and Contest for
Letters of Administration.
What is a Petition for Probate with a Will Annexed?
In this situation, there are two (2) petitions involved:

Petition filed by any interested person in a will stating the grounds why letters
testamentary should not issue to the persons named therein executors, or any
of them, and at the same time,


Filing of Petition for Letters of Administration with the will annexed.

Yes. Even assuming that Felicisimo was not capacitated to marry respondent in 1974,
nevertheless, we find that the latter has the legal personality to file the subject petition for
letters of administration, as she may be considered the co-owner of Felicisimo as regards
the properties that were acquired through their joint efforts during their cohabitation.
Section 6, Rule 78 of the Rules of Court states that letters of administration may be
granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also
provides in part:
SEC. 2. Contents of petition for letters of administration. A petition for letters of
administration must be filed by an interested person and must show, as far as known to
the petitioner: x x x.

Who will file a Petition with a will annexed?

It is that person who has NO custody of the will or any person interested in a will.
What are the requirements for opposition to petition for administration?

An "interested person" has been defined as one who would be benefited by the estate,
such as an heir, or one who has a claim against the estate, such as a creditor. The interest
must be material and direct, and not merely indirect or contingent.
In the instant case, respondent would qualify as an interested person who has a direct
interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which
was not denied by petitioners. If she proves the validity of the divorce and Felicisimos
capacity to remarry, but fails to prove that her marriage with him was validly performed
under the laws of the U.S.A., then she may be considered as a co-owner under Article 144
of the Civil Code. This provision governs the property relations between parties who live
together as husband and wife without the benefit of marriage, or their marriage is void
from the beginning. It provides that the property acquired by either or both of them
through their work or industry or their wages and salaries shall be governed by the rules
on co-ownership. In a co-ownership, it is not necessary that the property be acquired
through their joint labor, efforts and industry. Any property acquired during the union is
prima facie presumed to have been obtained through their joint efforts. Hence, the
portions belonging to the co-owners shall be presumed equal, unless the contrary is
Upon, issuance of those letters
administration), what will courts do?






Under Rule 86 (Claims Against Estate), immediately after granting letters, the court shall
issue a notice requiring all persons having money claims against the decedent to file them
in the office of the clerk of court of said court. And it will now be the duty of every executor
or administrator, after the notice to creditors is issued, to cause the same to be published
in 3 WEEKS SUCCESSIVELY in a newspaper of general circulation in the province and to be


Filing of a written opposition by any interested person, contesting the petition on

the ground of:

Incompetency of the person for whom letters are prayed therein, or


On the ground of the contestants own right to the administration.

And may pray that the letters issue to himself, or to any competent person or
persons named in the opposition.

Can Letters of Administration be granted to stranger?

Yes. Letters of Administration may be granted to any qualified applicant, though it appears
that there are other competent persons having better right to the administration, if such
persons fail to appear when notified and claim the issuance of letters to themselves.
Rule 80- Special Administrator
An administrator is of two kinds, what are they?
Rule 80

Special Administrator ( also of two kinds): With the will or Without a will annexed;


Regular Administrator

What is the distinction between an executor and an administrator?

Amen | Remedial Law Review 2 Notes | 2013

The executor is the one appointed by the decedent as embodied in the will. The
administrator is the one appointed by the court if there in no will, or if there is a will but
does not designate an executor, or even if there is an executor, the executor refuses to
accept the trust or fails to put up a bond. These are the requirements: He is either not
qualified; he fails to accept the trust; or he fails to put up a bond so an administrator may
be appointed
When may a Special Administrator appointed?
A special administrator may be appointed when:
1. There is delay in granting letters testamentary or of administration by any cause
including appeal from the allowance or there is disallowance of the will.
2. The executor is a claimant of the estate he represents (Rule 86 Section 8)
What are the duties of Special Administrator?
He shall have the following duties:

He shall take possession and charge of goods, chattels, credits, and estate of
the deceased,


He shall preserve the same for the executor or administrator afterwards

appointed and for that purpose may commence and maintain suits as


He may sell only such,


Subsequently, the probate court denied the probate of the alleged holographic will of the
decedent and give due course to the intestate settlement of the estate. Respondent
Pascual appealed the said order. In view of the disallowance of the holographic will,
petitioner Valarao moved in the probate court for her appointment as special
administratrix of the estate. Respondent Diaz likewise asked the court for his appointment
as special co-administrator which was opposed by Valarao on the ground that he
previously neglected his duties as co-administrator of the estate. The probate court
appointed Valarao as special admistratrix of the estate and this was contested by Diaz
demanding his appointment as a special-co administrator since justice and equity
demands that his group be represented in the management of the estate. The probate
court denied the motion for reconsideration and ordered respondent Diaz and all the heirs
to respect the authority of petitioner Valarao as special administratrix, especially by
furnishing her with copies of documents pertinent to the properties comprising the estate.
Respondents Pascual and Diaz along with other heirs moved for reconsideration of the
order on the ground that petitioner Valarao as special administratrix was not authorized to
dispossess the heirs of their rightful custody of properties in the absence of proof that the
same properties were being dissipated by them, and that the possessory right of petitioner
as special administratrix had already been exercised by her "constructively" when the
heirs on her side took possession of the estate supposedly in her behalf. A supplemental
petition for certiorari was filed before the Court of Appeals assailing the said orders of the
probate court. The court a quo reversed and set aside the order issued by the probate
court appointing petitioner as lone special administrator. The appellate court explained
that since the heirs were divided into two (2) scrappy factions, justice and equity
demanded that both factions be represented in the management of the estate of the
deceased. Hence, this petition for review on certiorari.


Perishable properties



As the court orders to be sold.

1. Whether the appointment of a co-administrator is mandatory in the case at bar?

He shall be liable to pay any debts of the deceased is ordered by the court.

When will Special Administrator ceases to be such?

When questions causing the delay are decided and executors or administrators are
Case: Gloriosa Valarao vs. Conrado Pascual and Manuel Diaz, G.R. No. 150164,
November 26, 2002, J. Bellosillo.
FACTS: FELICIDAD C. PASCUAL died at seventy-one (71) years, femme sole, leaving a
substantial inheritance for her querulous collateral relatives who all appear disagreeable to
any sensible partition of their windfall.
To divide the disputed estate are five (5) groups of legal heirs which include
respondents Conrado C. Pascual, a brother of the deceased, and Manuel C. Diaz, a nephew,
son of her sister Carmen P. Diaz, and petitioner Gloriosa V. Valarao who is the decedent's
niece. The bloodlines marking the groups of heirs are: (a) the legitimate children of her
late sister Leoncia P. Villanueva, including petitioner Gloriosa V. Valarao; (b) the legitimate
children of her late sister Carmen P. Diaz including respondent Manuel C. Diaz;
(c) the legitimate children of her late brother Macario Pascual;
(d) the legitimate children of her late sister Milagros P. de Leon; and,
(e) the decedent's surviving sister Augustia C. Pascual and brothers Leonardo C. Pascual
and Conrado C. Pascual, the latter being one of respondents herein.
Then, Gloriosa Valarao, petitioner herein, initiated before the RTC of Paranaque a special
proceeding for the issuance of the letter of administration in her favor over the estate of
the decedent. Respondents Conrado Pascual and Manuel Diaz filed with the same probate
court a petition for probate of an alleged holographic will of Felicidad. The two proceeding
were consolidated. By agreement of the parties in the proceedings a quo, petitioner and
respondent Diaz were appointed as join administrator of the estate of Felicidad.

2. Whether the probate court erred in demanding from the respondents to turnover
pertinent documents to Valarao as the special administrator for the management of the
1. No. To begin with, the probate court had ample jurisdiction to appoint petitioner Valarao
as special administratrix and to assist her in the discharge of her functions, even after
respondents had filed a notice of appeal from the Decision disallowing probate
of the holographic will of Felicidad C. Pascual. This is because the appeal is one
where multiple appeals are allowed and a record on appeal is required. In this mode of
appeal, the probate court loses jurisdiction only over the subject matter of the appeal but
retains jurisdiction over the special proceeding from which the appeal was taken for
purposes of further remedies which the parties may avail of, including the appointment of
a special administrator.
Moreover, there is neither whimsical nor capricious in the action of the probate court not to
appoint respondent Diaz as special co-administrator since the Orders of 7 June 2000 and
11 September 2000 clearly stipulate the grounds for the rejection. The records also
manifest that the probate court weighed the evidence of the applicants for special
administrator before concluding not to designate respondent Diaz because the latter was
found to have been remiss in his previous duty as co-administrator of the estate in the
early part of his administration. Verily, the process of decision-making observed by the
probate court evinces reason, equity, justice and legal principle unmistakably opposite the
core of abusive discretion correctible by the special civil action of certiorari under which
the appellate court was bound to act. Finally, the extraordinary writ does not operate to
reverse factual findings where evidence was assessed in the ordinary course of the
proceedings since perceived errors in the appreciation of evidence do not embroil
jurisdictional issues.
Respondents cannot take comfort in the cases of Matias v. Gonzales, Corona v. Court
of Appeals and Vda. de Dayrit v. Ramolete, cited in the assailed Decision. Contrary to
their claim, these cases do not establish an absolute right demandable from the probate

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court to appoint special co-administrators who would represent the respective interests of
squabbling heirs. Rather, the cases constitute precedents for the authority of the
probate court to designate not just one but also two or more special coadministrators for a single estate. Now whether the probate court exercises
such prerogative when the heirs are fighting among themselves is a matter left
entirely to its sound discretion.
2. No. We also rule that the probate court in issuing the Order of 11 September 2000 did
not err in commanding respondents to turn over all documents pertinent to the estate
under special administration and in enforcing such order by means of contempt of court.
The powers of a special administrator are plainly delineated in Sec. 2, Rule 80 of
the Rules of Court, vesting upon him the authority to "take possession and
charge of the goods, chattels, rights, credits and estate of the deceased and
preserve the same for the executor or administrator afterwards appointed x x x
The law explicitly authorizes him to take possession of the properties in whatever state
they are, provided he does so to preserve them for the regular administrator appointed
afterwards. Clearly, the special administrator enjoys not merely subsidiary
possession to be carried out when the heirs dissipate the properties but the
primary and independent discretion of keeping them so they may be preserved
for regular administration.
Moreover, respondents cannot deprive the special administratrix of access to and custody
of essential documents by arguing that their possession thereof allegedly in behalf of
petitioner is already the equivalent of "constructive possession" which constitutes full
compliance with the possessory powers of petitioner as special administratrix under Sec. 2
of Rule 80. Contrary to what respondents seem to understand by "constructive
possession," the right of possession whether characterized as actual or constructive
invariably empowers the special administrator with the discretion at any time to exercise
dominion or control over the properties and documents comprising the estate. Hence,
even if we are to give credence to the theory that petitioner also has "constructive
possession" of the documents alongside respondents' actual possession thereof,
respondents would nonetheless be under the obligation to turn them over whenever the
special administratrix requires their actual delivery.
Needless to state, the special administratrix appointed by the probate court must
be constantly aware that she is not a representative nor the agent of the parties
suggesting the appointment but the administrator in charge of the estate and in
fact an officer of the court. As an officer of the court, she is subject to the supervision
and control of the probate court and is expected to work for the best interests of the entire
estate, especially its smooth administration and earliest settlement. Whatever differences
that may exist between the heirs shall be ironed out fairly and objectively for the
attainment of that end. She ought to be sensitive to her position as special administratrix
and neutral possessor which under the Rules of Court is both fiduciary and temporary in
character upon which accountability attaches in favor of the estate as well as the other
heirs, especially respondents Pascual and Diaz in light of her alleged rivalry with them.
Case: Margarito Jamero vs. Hon. Melicor, Atty. Bautista, in his capacity as the
appointed Special Administrator, and Ernesto Jamero GR No. 140929, May 26,
2005, J. Austria-Martinez
FACTS: Petitioner filed Special Proceedings No. 1618 for the Administration and
Settlement of the Estate of his deceased mother Consuelo Jamero with the Regional Trial
Court (RTC), Branch 4, Tagbilaran City. Private respondent Ernesto R. Jamero, a brother of
petitioner, opposed the latters petition for appointment as regular administrator of the
Upon motion of private respondent Ernesto and over the objections of petitioner, the
respondent court, in its Order dated December 4, 1998, appointed Atty. Alberto Bautista as

special administrator pending the appointment of a regular administrator. Petitioner filed

its MR but was denied.
On April 21, 1999, petitioner filed a petition for certiorari with the CA. However, CA
dismissed the petition due to technicality since the petition indicates no statement as to
the date when the petitioner filed a Motion for Reconsideration of the public respondents
decision, in violation of Section 3, paragraph 2, Rule 46 of the 1997 Rules of Civil Procedure
as amended by Circular No. 39-98 dated August 18, 1998 of the Supreme Court. It further
rules that the appointment of a special administrator is discretionary on the part
of the appointing court; that being an interlocutory order the same is not
appealable nor subject to certiorari.
ISSUE: Whether the appointment of a special administrator is an interlocutory order which
not subject of certiorari?
HELD: No. It may be non-appealable but it is subject to certiorari. Suffice it to be stated
that indeed, the appointment of a special administrator is interlocutory, discretionary on
the part of the RTC and non-appealable. However, it may be subject of certiorari if it can be
shown that the RTC committed grave abuse of discretion or lack of or in excess of
jurisdiction. As the Court held in Pefianco vs. Moral, even as the trial courts order may
merely be interlocutory and non-appealable, certiorari is the proper remedy to annul the
same when it is rendered with grave abuse of discretion.
Rule 81- Bonds of Executors and Administrators
The bonds under Section 4 thereto for Special Administrator, shall be in a sum as the court
directs conditioned that he will make and return a true inventory of the properties in
possession while in case of regular administrator, the bond will be conditioned to the entire
estate for its preservation. The regular executor may serve without a bond as directed by
the testator in the latters will or with only his individual bond conditioned only to
payment of debts of the testator, but the court may require such executor the
filing of a further bond in case a change in his circumstances or for other
sufficient cause. Such latter bond is called STATUTORY BOND, as prescribed for by
statutes and will continue so long as the court has jurisdiction over the case.
What are the duties of executors and administrators?

To make and return to the court, within 3 months, a true and complete
inventory of all goods, chattels, rights, credits, and estate of the deceased which
shall come to his possession or knowledge or to the possession of any
other person for him.


To administer according to these Rules the estate, and from proceeds, to pay
and discharge all debts, legacies and charges on the same or such dividends


To render a true and just account of his administration to the court within 1
year and at any other time when required by the court.


To perform all orders of the court.


Duty to sell, encumber or mortgage


Duty for distribution of the estate remaining.

Rule 82- Revocation of Administration, Death, Resignation, and Removal of

Executors and Administrators
When will administration be revoked?
Administration is revoked if a will is discovered.

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When may a court remove an executor or administrator or accepts his


If an executor or administrator neglects to render his account within 1 year and

when required by court,


If he neglects to settle estate according to the Rules,


If he neglects to perform an order or judgment of the court or a duty expressly

provided by Rules,


When he absconds, or


When becomes insane, or otherwise incapable or unsuitable to discharge the


*When an executor or administrator dies, resigns or is removed, the remaining

executor or administrator may administer the trust alone UNLESS the court
grants letters to someone to act with him. If there is no remaining executor or
administrator, administration may be granted to any suitable person.
The acts before revocation, resignation or removal are considered valid.
Rule 83- Inventory and Appraisal; Provision for Support of Family
What are the other duties of executors or administrators?

When 3 months after his appointment, he shall return to the court a true
inventory and appraisal of all real and personal estate of the deceased which
has come to his possession or knowledge. In such appraisement, the court may
order one or more inheritance tax appraisers to give his or their assistance.


To make an inventory of the assets of the administered estate, to the

exclusion of wearing apparels of the surviving husband or wife and
minor children, the marriage bed and beddings and such provisions
and other articles for the subsistence of the family of the deceased.


To give allowance to widow and minor children, NOT TO GRANDCHILDREN.

What will be done if such allowance has to be given but there isnt enough cash
by the estate?
This time, a sale can be done, say to pay taxes.
Case: The Estate of Hilario Ruiz and Edmond Ruiz vs. CA, Heirs of Hilario Ruiz
(Ruizs) GR No. 118671, January 29, 1996, J. Puno
FACTS: Hilario Ruiz executed a holographic will naming as his heirs his only son, Petitioner
Edmond Ruiz, his adopted daughter, private respondent Maria Pilar Ruiz Montes, and his
three granddaughters, private respondents Maria Cathryn, Candice Albertine and Maria
Angeline, all children of Edmond Ruiz. The testator bequeathed to his heirs substantial
cash, personal and real properties and named Edmond Ruiz executor of his estate. When
Hilario died, the cash component of his estate were distributed among his heirs named in
the will but for some unknown reason the will was never been probated. Thus, four years
later after the decedents death, Respondent Maria Pilar Montes filed before the trail court
a petition to probate the will. This was opposed by Edmond on the ground that the will was
executed under undue influence. Nevertheless, he withdrew his opposition and the will
was subsequently probated. One of the properties in the will a house and lot
which was bequeath to Catheryn, Candicem and Maria was leased out by the
petitioner to third persons. Hence, the probate court ordered Edmond to deposit the

rent of the lease to the branch clerk of court. During the pendency of the proceeding,
petitioner moved to release the rent payments deposited before the clerk or court.
Respondent on the other hand, oppose the said motion and concurrently filed "Motion for
Release of Funds to Certain Heirs" and "Motion for Issuance of Certificate of
Allowance of Probate Will." Montes prayed for the release of the said rent payments to
Maria Cathryn, Candice Albertine and Maria Angeline and for the distribution of the
testator's properties in accordance to the holographic will. The probate court denied the
motion for release petitioner's motion for release of funds but granted respondent Montes'
motion in view of petitioner's lack of opposition. It thus ordered the release of the
rent payments to the decedent's three granddaughters. It further ordered the
delivery of the titles to and possession of the properties bequeathed to the three
granddaughters and respondent Montes upon the filing of a bond of P50,000.00. Petitioner
assails the order of the probate court to the Court of Appeals. The CA however, dismissed
the petition and sustained the probate court.
1. Whether the probate court err in the grant of allowance for support to the grandchildren
of the decedent?
2. Whether it has authority to release the titles to certain heirs?
3. Whether it erred to grant possession of all properties of the estate to the executor of the
1. Yes. Sec. 3. Allowance to widow and family. The widow and minor or incapacitated
children of a deceased person, during the settlement of the estate, shall receive therefrom
under the direction of the court, such allowance as are provided by law.
Petitioner alleges that this provision only gives the widow and the minor or incapacitated
children of the deceased the right to receive allowances for support during the settlement
of estate proceedings. He contends that the testator's three granddaughters do not qualify
for an allowance because they are not incapacitated and are no longer minors but of legal
age, married and gainfully employed. In addition, the provision expressly states "children"
of the deceased which excludes the latter's grandchildren.
It is settled that allowances for support under Section 3 of Rule 83 should not be limited to
the "minor or incapacitated" children of the deceased. Article 188 of the Civil Code of the
Philippines, the substantive law in force at the time of the testator's death, provides that
during the liquidation of the conjugal partnership, the deceased's legitimate spouse and
children, regardless of their age, civil status or gainful employment, are entitled to
provisional support from the funds of the estate. The law is rooted on the fact that the right
and duty to support, especially the right to education, subsist even beyond the age of
Be that as it may, grandchildren are not entitled to provisional support from the funds of
the decedent's estate. The law clearly limits the allowance to "widow and children" and
does not extend it to the deceased's grandchildren, regardless of their minority or
incapacity. It was error, therefore, for the appellate court to sustain the probate court's
order granting an allowance to the grandchildren of the testator pending settlement of his
2. No. Respondent courts also erred when they ordered the release of the titles of the
bequeathed properties to private respondents six months after the date of first publication
of notice to creditors. An order releasing titles to properties of the estate amounts to an
advance distribution of the estate which is allowed only under the following conditions set
forth in Rule 90 of the Rules of Court.
In settlement of estate proceedings, the distribution of the estate properties can only be
made: (1) after all the debts, funeral charges, expenses of administration, allowance to the

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widow, and estate tax have been paid; or (2) before payment of said obligations only if the
distributees or any of them gives a bond in a sum fixed by the court conditioned upon the
payment of said obligations within such time as the court directs, or when provision is
made to meet those obligations.
In the case at bar, the probate court ordered the release of the titles to the Valle Verde
property and the Blue Ridge apartments to the private respondents after the lapse of six
months from the date of first publication of the notice to creditors. The questioned order
speaks of "notice" to creditors, not payment of debts and obligations. Hilario Ruiz allegedly
left no debts when he died but the taxes on his estate had not hitherto been paid, much
less ascertained. The estate tax is one of those obligations that must be paid before
distribution of the estate. If not yet paid, the rule requires that the distributees post a bond
or make such provisions as to meet the said tax obligation in proportion to their respective
shares in the inheritance. Notably, at the time the order was issued the properties of the
estate had not yet been inventoried and appraised.
3. Yes. The petitioner cannot correctly claim that the assailed order deprived him of his
right to take possession of all the real and personal properties of the estate. The right of an
executor or administrator to the possession and management of the real and personal
properties of the deceased is not absolute and can only be exercised "so long as it is
necessary for the payment of the debts and expenses of administration,"
When petitioner moved for further release of the funds deposited with the clerk of court,
he had been previously granted by the probate court certain amounts for repair and
maintenance expenses on the properties of the estate, and payment of the real estate
taxes thereon. But petitioner moved again for the release of additional funds for the same
reasons he previously cited. It was correct for the probate court to require him to submit
an accounting of the necessary expenses for administration before releasing any further
money in his favor.
It was relevantly noted by the probate court that petitioner had deposited with it only a
portion of the one-year rental income from the Valle Verde property. Petitioner did not
deposit its succeeding rents after renewal of the lease. Neither did he render an
accounting of such funds.
Petitioner must be reminded that his right of ownership over the properties of his father is
merely inchoate as long as the estate has not been fully settled and partitioned. As
executor, he is a mere trustee of his father's estate. The funds of the estate in his hands
are trust funds and he is held to the duties and responsibilities of a trustee of the highest
order. He cannot unilaterally assign to himself and possess all his parents' properties and
the fruits thereof without first submitting an inventory and appraisal of all real and
personal properties of the deceased, rendering a true account of his administration, the
expenses of administration, the amount of the obligations and estate tax, all of which are
subject to a determination by the court as to their veracity, propriety and justness.
Rule 84- General Powers and Duties of Executors and Administrators
What are the powers of executors or administrators of the estate?

To have access to and examine and take copies of books and papers relating to
partnership in case of a deceased partner.


To examine and make invoices of the property belonging to partnership in case

of deceased partner.


To maintain in tenantable repairs, houses and other structures and fences and to
deliver the same in such repair to the heirs or devisees when directed so to do
by the court.


To make improvements on the properties under administration with necessary

court approval except for necessary repairs.


To possess and manage the estate when necessary for:


Payment of debts


Payment of expenses of administration.

What are the restrictions on the Power of an Administrator or Executor?


Cannot acquire by purchase the property under administration.


Cannot borrow money without authority of the court.


Cannot speculate with fund under administration.


Cannot lease the property for more than 1 year.


Cannot continue the business of the deceased unless authorized by court.


Cannot profit by the increase or decrease in the value of the property under
administration. (Rule 85, Section 2)

Rule 85- Accountability and Compensation of Executors and Administrators

Case: Lacson vs. Hon. Reyes (RTC of Cavite), and Atty. Ephraim Serquina, February
26, 1990, J. Sarmiento.
Facts: Atty. Ephraim Serquina petitioned the respondent court for the probate of the last
will and testament of Carmelita Farlin, the same having been allowed without opposition.
Serquina filed a motion for attorneys fees against petitioners, herein heirs of Farlin
alleging that the heirs agreed to pay for his legal services rendered the sum worth 68,000.
It was granted; hence, Serquina moved for its execution. Petitioners filed a notice of
appeal in appealing to such decision. But trial court dismissed the same arguing that a
record on appeal is required and not a notice of appeal. Petitioner, on the other hand that
it should be admitted as an appeal although it falls short of the requirements by the Rules
and that the trial court gravely abused discretion in granting such motion for attorneys
fees being contrary to Rule 85, Section 7 of the Rules of Court. However, Atty
Serquina opposed such allegation and opined that in collecting attorneys fees, he
was not acting as executor of Farlins will because there was no letters
testamentary that has been issued.
(1) Whether a notice of appeal will do in this case.
(2) Whether Atty. Serquina can be granted his motion for attorneys fees.
(1) Yes. It has been held that in appeals arising from an incident in a special proceeding, a
record on appeal is necessary, otherwise, the appeal faces a dismissal. It has likewise been
held, however, that in the interest of justice, an appeal, brought without a record on
appeal, may be reinstated under exceptional circumstances. Thus:
xxx xxx xxx
It is noted, however, that the question presented in this case is one of
first impression; that the petitioner acted in honest, if mistaken,
interpretation of the applicable law; that the probate court itself
believed that the record on appeal was unnecessary; and that the
private respondent herself apparently thought so, too, for she did not
move to dismiss the appeal and instead impliedly recognized its
validity by filing the appellee's brief.
In view of these circumstances, and in the interest of justice, the Court
feels that the petitioner should be given an opportunity to comply with
the above-discussed rules by submitting the required record on appeal
as a condition for the revival of the appeal. The issue raised in his
appeal may then be fully discussed and, in the light of the briefs

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already filed by the parties, resolved on the merits by the respondent

In the instant case, the Court notes the apparent impression by the parties at the outset,
that a record on appeal was unnecessary, as evidenced by: (1) the very holding of the
respondent court that "[i]t is now easy to appeal as there is no more need for a record on
appeal . . . [b]y merely filing a notice of appeal, the appellant can already institute his
appeal . . . ;" (2) in its order to amend notice of appeal, it did not require the appellants to
submit a record on appeal; and (3) Atty. Serquina interposed no objection to the appeal on
that ground.
(2) No. It is pointed out that an attorney who is concurrently an executor of a will is barred
from recovering attorney's fees from the estate. The rule is therefore clear that an
administrator or executor may be allowed fees for the necessary expenses he has incurred
as such, but he may not recover attorney's fees from the estate. His compensation is fixed
by the rule but such a compensation is in the nature of executor's or administrator's
commissions, and never as attorney's fees. In one case, 18 we held that "a greater sum
[other than that established by the rule] may be allowed 'in any special case, where the
estate is large, and the settlement has been attended with great difficulty, and has
required a high degree of capacity on the part of the executor or administrator.'" It is also
left to the sound discretion of the court. With respect to attorney's fees, the rule, as we
have seen, disallows them. Accordingly, to the extent that the trial court set aside the sum
of P65,000.00 as and for Mr. Serquina's attorney's fees, to operate as a "lien on the subject
properties," the trial judge must be said to have gravely abused its discretion (apart from
the fact that it never acquired jurisdiction, in the first place, to act on said Mr. Serquina's
"motion for attorney's fees").
The next question is quite obvious: Who shoulders attorney's fees? We have held that a
lawyer of an administrator or executor may not charge the estate for his fees, but rather,
his client. Mutatis mutandis, where the administrator is himself the counsel for the heirs, it
is the latter who must pay therefor.
The records also reveal that Atty. Serquina has already been paid the sum of P6,000.00. It
is our considered opinion that he should be entitled to P15,000.00 for his efforts on a
quantum meruit basis. Hence, we hold the heirs liable for P9,000.00 more.
General rule: The executor or administrator is accountable for the whole estate of the
Exception: He is not accountable for properties which never came to his possession.
Exception to the exception: When through untruthfulness to the trust or his own fault
or for lack of necessary action, the executor or administrator failed to recover part of the
estate which came to his possession.
What will be the compensation for executor or administrator if there is no
provision in the Will?

P4.00 a day for the time actually and necessarily employed; OR





The settlement has required a high degree of capacity of the executor

or administrator.

When will the executor or administrator render account?

General rule: Within 1 year from the time of receiving letters testamentary or of
Exception: An extension of time is allowed by the court for presenting claims against or
paying debts or for disposing of the estate, he shall render the same as the court may
require until the estate is wholly settled.
Will an examination with respect to account on oath be mandatorily done?
No. Because it can be dispensed with when:

No objection is made to the allowance of the account.


Its correctness is satisfactorily established by competent proof.

*The heirs, legatees, devisees and creditors have the same privilege of being examined.
Rule 86- Claims against Estate
What may be claimed against the estate?

Contractual money claims;


Funeral expenses;


Expenses for the last illness; and


Judgments for money.

Situation: A was hospitalizing at St. Lukes Hospital and finally died leaving behind lots of
hospital expenses.
How will St. Lukes collect that? It has to file a claim against the estate of A.
Is this claim a separate and distinct petition from settlement of the estate of A?
No, it is ancillary to testate or intestate proceeding. Hence, if there is settlement, you can
file it in that court having jurisdiction. However, if there was none or there was no testate
or intestate proceeding instituted yet, then you can file for the settlement of estate of A as
a CREDITOR, well under Any person interested in the estate.
Judgment for money
This is illustrated in a scenario wherein H, in his lifetime, had incurred obligation against, or
he is obliged to do something, but died eventually. The person entitled to any against H
cannot sue H personally, as the latter already died. But what can he do is to file a claim
against the estate of H.


2%- first 5,000


1%- >5,000 but not >30,000

*Pertinent provision- Section 20, Rule 3 of the Rules of Court


1%- >30,000 but not >100,000


%- >100,000

When the action is for recovery of money arising from contract, express or implied, and
the defendant dies before entry of final judgment in the court in which the action was
pending at the time of such death, it shall not dismissed but shall instead be
allowed to continue UNTIL ENTRY OF FINAL JUDGMENT. A favorable judgment
obtained by the plaintiff therein shall be enforced in the manner especially provided in
these Rules for prosecuting claims against the estate of a deceased person.

Greater sum may be allowed if:


The estate is large;


The settlement has been attended with great difficulty;

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Illustrate: A files B for a sum of money based on a contract between them as parties. B,
however died. The case was not dismissed but instead proceeded up until entry of
judgment. In entry of judgment, no more appeal is required, much more, Motion for
Reconsideration or Motion for New Trial. With that period of time, judgment already
becomes executory. However, instead of proceeding to Rule 39 which is execution
of an executory judgment, in this case, a claim against the estate under Rule 86
applies, falling under JUDGMENT FOR MONEY.
How will you distinguish money claims under Section 5 of Rule 86 from judgment
for money? For money claims under Rule 86 Section 5, it could be filed even if not due or
contingent, much more those already due. However, for judgment for money, it
presupposes that the same has already been adjudicated.
What are contingent claims?
These are conditional claims that are subject to the happening of a future uncertain event.
*Claims not yet due or contingent may be approved at their present value.
What is a deficiency judgment in this respect?
It is a contingent judgment and therefore, must be filed with the probate court where the
settlement of the deceased is pending, within the period fixed for the filing of claims.
Example: You have a millionaire uncle, and before he died he made a promise to give you
something when you complied with his condition. However, before the happening of the
condition, he died. The condition was for you to pass the bar.
What happens to contingent claim then?
You can pursue the same by mere affidavit, showing the oral contract you had with your
uncle, although the same is unenforceable, being not in writing.
Is this a valid claim against the estate?
Yes, because the money claim against the estate could be due, undue or even contingent.
Suppose they are not due yet, can they be filed against the estate?
Suppose they are not yet due?
Yes, since whether due, not yet due, or contingent, you can file against the estate.
Statute of Non-claims

Yes, with respect to BELATED CLAIMS. These are claims not filed within the original period
fixed by the court. However, on application of a creditor who has failed to file his claim
within the time previously limited at ANY TIME BEFORE AN ORDER OF DISTRIBUTION IS
ENTERED, the court may, for cause shown and on such terms as are equitable, allow such
claim to be filed within a time NOT exceeding 1 month from the order allowing belated
claims. This is also in the form of COUNTERCLAIM. The obligation by reason of mortgage
due from estate is distinguished between Rule 86, Section 7, in which the estate is a
mortgagor while in Rule 87 Section 5, the estate is a mortgagee.
What is the relationship between a statute of non-claims and limitations?
A statute of non claims supersedes a statute of limitations. The statute of limitation is a
period provided for in the Civil Code where actions prescribe. An ordinary prescriptive
period in a civil case is 10 years from accrual. A statute of limitation is not applicable if in
conflict with statute of non-claim. This is precedence of statute of non-claims than statute
of limitations.
Illustration: Mr. A took the bus, Philippine Rabbit, owned by Mr. B to Baguio. He never
reached his destination because the bus fell over a ravine on January 5, 1990. That is the
date of the accrual of the cause of action (Jan. 5, 1990).
Can Mr. A file a case against Mr. B on March 2001?
No, because the action is barred by the statute of limitations.
Suppose Mr. B died in 1995. What should A do?
File a claim against the estate within a period of not less than 6 mos. and not more than
12mos from the date of first publication. So, the presumption here is that there is a
settlement of the estate of B. Otherwise, the statute of non-claims will not apply.
Suppose notice was given on March 1, 1995. So you have 6 months and it was
published March 20, you have not less than 6 months from March 20, nor more
than up to the 19th of March 1996. Can you file it in 1998?
No, because it is beyond the statute of non-claims. Even if it is within the statute of
limitations, you can no longer file it because it is beyond the statute of non-claims. That is
the meaning of the statute of non-claims supersedes the statute of limitations.
On the other hand, if B died in 1999 of December, you have only have up to January of
2000 because the action has already prescribed, the ordinary action. The statute of nonclaims prevails over the statute of limitations. However, the statute of non- claims will not
apply if there is no settlement proceeding.
What is the time-frame in Section 2 of Rule 86?
The court is bound to give notice to those who have claims against the estate. The notice
here is a sort of publication which is NOT the same as publication in probate since in the
latter the notice refers to NOTICE OF HEARING.

What is Statute of Non-Claims?

It is the period fixed by the Rule for the filing of the claims against the estate.

How will you pursue your money claim?

When do you file it?

It is provided for under Section 7 thereto, which a claim must be filed with the clerk of
court with affidavit supported by vouchers. The clerk of court will now relay to executor or
administrator who has duty to file his answer within 15 days whether he agrees or not.

You can file it not more than 12 months nor less than 6 months after the date of first
publication. Otherwise it is deemed waived which is also known as the STATUTE OF NONCLAIMS.

How was this treated by the court?


Is there an exception to this strict period rule?

If there is no opposition or with admission, pay 50,000 to

set aside the claim. While pay 150,000 to the court and
send the 150,000 the notice of hearing with respect to

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150,000.The court will then decide if valid or not. If there

is contest by any other heir, payment of 50,000 should be
What happens next?
The distribution will commence at the proper time, in due course of administration. This is
so because distribution only arises when everything else is paid.
Case: Union Bank vs. Edmund Santibaez and Florence Santibaez Ariola GR No.
149926, February 23, 2005, J. Callejo Sr.
FACTS: On May 31, 1980, the First Countryside Credit Corporation (FCCC) and Efraim M.
Santibaez entered into a loan agreement in the amount of P128,000.00. The amount was
intended for the payment of the purchase price of one (1) unit Ford 6600 Agricultural AllPurpose Diesel Tractor. In view thereof, Efraim and his son, Edmund, executed a promissory
note in favor of the FCCC, the principal sum payable in five equal annual amortizations of
P43,745.96 due on May 31, 1981 and every May 31st thereafter up to May 31, 1985.
On December 13, 1980, the FCCC and Efraim entered into another loan agreement, this
time in the amount of P123,156.00. It was intended to pay the balance of the purchase
price of another unit of Ford 6600 Agricultural All-Purpose Diesel Tractor, with accessories,
and one (1) unit Howard Rotamotor Model AR 60K. Again, Efraim and his son, Edmund,
executed a promissory note for the said amount in favor of the FCCC. Aside from such
promissory note, they also signed a Continuing Guaranty Agreement for the loan dated
December 13, 1980.
Sometime in February 1981, Efraim died, leaving a holographic will. Subsequently in March
1981, testate proceedings commenced before the RTC of Iloilo City, Branch 7, docketed as
Special Proceedings No. 2706. On April 9, 1981, Edmund, as one of the heirs, was
appointed as the special administrator of the estate of the decedent. During the
pendency of the testate proceedings, the surviving heirs, Edmund and his sister
Florence Santibaez Ariola, executed a Joint Agreement dated July 22, 1981,
wherein they agreed to divide between themselves and take possession of the
three (3) tractors; that is, two (2) tractors for Edmund and one (1) tractor for
Florence. Each of them was to assume the indebtedness of their late father to
FCCC, corresponding to the tractor respectively taken by them.
On August 20, 1981, a Deed of Assignment with Assumption of Liabilities was executed by
and between FCCC and Union Savings and Mortgage Bank, wherein the FCCC as the
assignor, among others, assigned all its assets and liabilities to Union Savings and
Mortgage Bank. Demand letters for the settlement of his account were sent by petitioner
Union Bank of the Philippines (UBP) to Edmund, but the latter failed to heed the same and
refused to pay. Thus, on February 5, 1988, the petitioner filed a Complaint for sum of
money against the heirs of Efraim Santibaez, Edmund and Florence, before the RTC of
Makati City, Branch 150, docketed as Civil Case No. 18909. Summons was issued against
both, but the one intended for Edmund was not served since he was in the United States
and there was no information on his address or the date of his return to the Philippines.
Accordingly, the complaint was narrowed down to respondent Florence S. Ariola.
Respondent Florence S. Ariola filed her Answer and alleged that the loan
documents did not bind her since she was not a party thereto. Considering that the
joint agreement signed by her and her brother Edmund was not approved by the probate
court, it was null and void; hence, she was not liable to the petitioner under the joint
agreement. The RTC dismiss the case on lack of merit. It also ruled that the said
agreement executed was void, considering that it had not been approved by the
probate court, and that there can be no valid partition until after the will has
been probated. On appeal, it affirmed the decision of the trial court. Hence, this petition.
The petitioner claims that the obligations of the deceased were transmitted to the heirs as
provided in Article 774 of the Civil Code; there was thus no need for the probate court to
approve the joint agreement where the heirs partitioned the tractors owned by the

deceased and assumed the obligations related thereto. Since respondent Florence S.
Ariola signed the joint agreement without any condition, she is now estopped from
asserting any position contrary thereto. The petitioner also points out that the holographic
will of the deceased did not include nor mention any of the tractors subject of the
complaint, and, as such was beyond the ambit of the said will. The active participation and
resistance of respondent Florence S. Ariola in the ordinary civil action against the
petitioners claim amounts to a waiver of the right to have the claim presented in the
probate proceedings, and to allow any one of the heirs who executed the joint agreement
to escape liability to pay the value of the tractors under consideration would be equivalent
to allowing the said heirs to enrich themselves to the damage and prejudice of the
1. Whether the agreement entered by Edmund and Florence is valid?
2. Whether the heirs assumption of indebtedness is binding?
1. No. In our jurisdiction, the rule is that there can be no valid partition among the heirs
until after the will has been probated:
In testate succession, there can be no valid partition among the heirs until after the will
has been probated. The law enjoins the probate of a will and the public requires it,
because unless a will is probated and notice thereof given to the whole world, the right of
a person to dispose of his property by will may be rendered nugatory. The authentication
of a will decides no other question than such as touch upon the capacity of the testator
and the compliance with those requirements or solemnities which the law prescribes for
the validity of a will
This, of course, presupposes that the properties to be partitioned are the same properties
embraced in the will. In the present case, the deceased, Efraim Santibaez, left a
holographic will which contained, inter alia, the provision which reads as follows:
(e) All other properties, real or personal, which I own and may be discovered later after my
demise, shall be distributed in the proportion indicated in the immediately preceding
paragraph in favor of Edmund and Florence, my children.
We agree with the appellate court that the above-quoted is an all-encompassing provision
embracing all the properties left by the decedent which might have escaped his mind at
that time he was making his will, and other properties he may acquire thereafter. Included
therein are the three (3) subject tractors. This being so, any partition involving the said
tractors among the heirs is not valid. The joint agreement executed by Edmund and
Florence, partitioning the tractors among themselves, is invalid, specially so
since at the time of its execution, there was already a pending proceeding for
the probate of their late fathers holographic will covering the said tractors.
2. No. The filing of a money claim against the decedents estate in the probate court is
mandatory. As we held in the vintage case of Py Eng Chong v. Herrera:
This requirement is for the purpose of protecting the estate of the deceased by
informing the executor or administrator of the claims against it, thus enabling him to
examine each claim and to determine whether it is a proper one which should be allowed.
The plain and obvious design of the rule is the speedy settlement of the affairs of the
deceased and the early delivery of the property to the distributees, legatees, or heirs. `The
law strictly requires the prompt presentation and disposition of the claims against the
decedent's estate in order to settle the affairs of the estate as soon as possible, pay off its
debts and distribute the residue.
Perusing the records of the case, nothing therein could hold private respondent
Florence S. Ariola accountable for any liability incurred by her late father. The

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documentary evidence presented, particularly the promissory notes and the continuing
guaranty agreement, were executed and signed only by the late Efraim Santibaez and his
son Edmund. As the petitioner failed to file its money claim with the probate
court, at most, it may only go after Edmund as co-maker of the decedent under
the said promissory notes and continuing guaranty, of course, subject to any
defenses Edmund may have as against the petitioner. As the court had not acquired
jurisdiction over the person of Edmund, we find it unnecessary to delve into the matter

Settlement of Estate
Sec 7. Mortgage debt due from estate
What are the remedies available to a creditor/mortgagee to collect a mortgaged debt from
the estate of the deceased debtor?

-after all the debts has been paid; upon distribution thereto.

Whether or not estoppel applies.


Whether or not the extra judicial partition between and among the heirs was


Whether or not it is necessary for a partition to be approved by the probate



Whether or not the respondent could be held jointly liable with Santibanez.

Judicial foreclose of the mortgage under Rule 68

-you can claim for deficiency judgment and satisfy the remaining judgment by
motion only in the same action

In the case of FCC vs Santibanez, the following are the issues raised:

Claim against the estate


Extrajudicial foreclosure under RA 3135

-you solely rely on his mortgage; you dont get any deficiency judgment.

*These remedies are mutually exclusive against each other.

Sec 9. How to file a claim
It is through a simple application form containing/complying with the following:

Testate Proceeding.
Provisions on a holographic will. It wasnt clearly stated in this case.
The parties entered into an agreement.
Can prospective heirs whether under the testate or intestate enter into a
partition over the properties belonging to the estate?


Deliver the claim to the clerk of court


Serve a copy on the executor or administrator


If the claim is due, it must be supported by affidavit stating the amount due and the
fact that there have been no effects.


If the claim is not due or contingent, it must be accompanied by affidavit stating the

There can be no partition until and unless the will is allowed or probated.
Sec 10. Answer of executor or administrator
Was it really a partition?


Executor may file answer within 15 days from the service of claim

According to the SC, they may act to put an end in any indivision is considered and
deemed to be a partition.


Answer must set forth claims which decedent has against claimant or else it will be
barred forever.

There can be no partition in a testate proceeding before the will is allowed.

Rule 87- Actions by and against Executors and Administrators
What is the rationale behind that?
Because the SC said if it is allowed then you are divesting the court of its jurisdiction over
the property partition. Since the same is partition, it amounts to distribution. And
distribution is the final stage in a settlement proceeding and there will be no distribution of
the estate until and unless all debts has been paid. The court looks into it as an act of
divesting of its jurisdiction.

Claims that survive

Actions that may be commenced directly
against the executor and administrator

Recovery of real/personal
property (or any interest therein)


Enforcement of lien thereon


Action to recover damages arising

from tort


Action for revival of money

judgment may be filed against
administrator to preempt
prescription of judgment

Can principle of estoppel be applied?

The SC said that the principle of estoppel will not apply because the basis thereof which is
the extra judicial partition is in fact void, and a void act of declaration or omission of a
party cannot be used as evidence against the other party. If the act is null and void,
estoppel will not arise therefrom.
Are the heirs liable?
The SC said that the heir did not even established the fact that the party was the proper
party in interest because Union Bank did not show any evidence to prove that the former
was really the affixing heir.

Claims that do not survive

Rule 87, Section 1

Rule 86, Section 5

Actions that may be commenced against
the estate of the deceased

Money claims, debts incurred by

the deceased during his last
illness arising from contract


Claims for funeral expenses or for

the last illness of the decedent


Judgment for money against


We have limited claims against the estate to the following:

1. Contractual money claims;

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2. Funeral expenses;
3. Expenses for the last illness; and
4. Judgments for money.
These are considered as contractual money claims under Rule 86. When you go to Rule 87,
you will note that you cannot file a claim against the estate if it is claimable under Rule 86 .
So contractual money claims, you cannot claim it here. That is why in Rule 87, you are also
limited to the following claims or actions:

Recovery of real or personal property;


Recovery of interest or lien therein;


Judgment arising from injuries

When can the heirs sue on behalf of the estate of the deceased?
It is when an order of the court assigning such lands to such heir or devisee or until the
time allowed for paying debts has expired although an executor or administrator is
appointed and assigned the trust.
When can an executor or administrator compound with the debtor of the
Within the approval of the court, an executor or administrator may compound with the
debtor of the deceased for a debt due, and may give a discharge of such debt on receiving
a just dividend of the estate of the debtor.
Case: Jose Lee and Alma Aggabao, in their capacities as president and Corporate
Secretary, respectively of Philippine International Life Insurance Company, and
Filipino Loan Assistance Group vs. RTC of Quezon City Branch 85 by Hon. Areola,
Branch Clerk of Court Antero, Deputy Sheriff Rivera and pedro Broja, Ma.
Enderes claiming to be Special Administratrix. GR No. 146006, February 23, 2004,
J. Corona.
FACTS: Dr. Juvencio P. Ortaez incorporated the Philippine International Life Insurance
Company, Inc. on July 6, 1956. At the time of the companys incorporation, Dr. Ortaez
owned ninety percent (90%) of the subscribed capital stock. On July 21, 1980, Dr. Ortaez
died. He left behind a wife (Juliana Salgado Ortaez), three legitimate children (Rafael, Jose
and Antonio Ortaez) and five illegitimate children by Ligaya Novicio (herein private
respondent Ma. Divina Ortaez-Enderes and her siblings Jose, Romeo, Enrico Manuel and
Cesar, all surnamed Ortaez).
On September 24, 1980, Rafael Ortaez, a legitimate child of Ortaez, filed before the
Court of First Instance of Rizal, Quezon City Branch (now Regional Trial Court of Quezon
City) a petition for letters of administration of the intestate estate of Dr. Ortaez. Private
respondent Ma. Divina Ortaez-Enderes and her siblings filed an opposition to the petition
for letters of administration and, in a subsequent urgent motion, prayed that the intestate
court appoint a special administrator. The RTC appointed Rafael and Jose Ortaez as
joint special administrator of his fathers estate.
On April 15, 1989, the decedents wife, Juliana S. Ortaez, claiming that she owned 1,0144
Philinterlife shares of stock as her conjugal share in the estate, sold said shares with right
to repurchase in favor of herein petitioner Filipino Loan Assistance Group (FLAG),
represented by its president, herein petitioner Jose C. Lee. Juliana Ortaez failed to
repurchase the shares of stock within the stipulated period, thus ownership
thereof was consolidated by petitioner FLAG in its name. On October 30, 1991,
Special Administrator Jose Ortaez, acting in his personal capacity and claiming that he
owned the remaining 1,0115 Philinterlife shares of stocks as his inheritance share in the
estate, sold said shares with right to repurchase also in favor of herein petitioner FLAG,

represented by its president, herein petitioner Jose C. Lee. After one year, petitioner FLAG
consolidated in its name the ownership of the Philinterlife shares of stock when Jose
Ortaez failed to repurchase the same.
It appears that several years before (but already during the pendency of the intestate
proceedings at the Regional Trial Court of Quezon City, Branch 85), Juliana Ortaez and
her two children, Special Administrators Rafael and Jose Ortaez, entered into a
memorandum of agreement dated March 4, 1982 for the extrajudicial settlement
of the estate of Dr. Juvencio Ortaez, partitioning the estate (including the
Philinterlife shares of stock) among themselves. This was the basis of the number of
shares separately sold by Juliana Ortaez on April 15, 1989 (1,014 shares) and by Jose
Ortaez on October 30, 1991 (1,011 shares) in favor of herein petitioner FLAG.
Private respondent Ma. Divina OrtaezEnderes and her siblings (hereafter referred to as
private respondents Enderes et al.) filed a motion for appointment of special administrator
of Philinterlife shares of stock. This move was opposed by Special Administrator Jose
Ortaez. The intestate court granted the motion of private respondents Enderes et al. and
appointed private respondent Enderes special administratrix of the Philinterlife
shares of stock. Enderes moved to void the memorandum of agreement earlier
entered and the deed of sale of Philinterlife shares of stock to FLAG. Both were
opposed by the Ortanez. Further, the sales in question were entered into by Juliana S.
Ortaez and Jose S. Ortaez in their personal capacity without prior approval of the Court,
the same is not binding upon the Estate. In addition, another order was issued by the
intestate court annulling the memorandum of agreement. A petition for certiorari was filed
before the Court of Appeals. The appellate court denied the petition reiterating that the
same transactions were void since they were not approved by the intestate court. The case
elevated to the Supreme Court which was dismiss due to technicality. The motion for
reconsideration of Ortanez was likewise denied with finality. Respondent Special
Administrator Endres and her siblings filed a motion for execution of the orders
of the intestate court. The court a quo granted the motion and issued a writ of
execution against petitioners. This was appealed by the petitioners before the Court of
Appeals, however the CA did not give credence to the petition. Private respondents then
filed a motion to direct the branch clerk of court to reinstate the name of Dr. Ortaez in the
stock and transfer book of Philinterlife and issue the corresponding stock certificate. The
intestate court granted the motion. Petitioners, this time, questions the order of the
intestate court directing the branch clerk order of the intestate court directing the branch
clerk of court to issue the stock certificates. They also questioned in the Court of Appeals
the order of the intestate court nullifying the sale made in their favor by Juliana Ortaez
and Jose Ortaez. On November 20, 2002, the Court of Appeals denied their petition and
upheld the power of the intestate court to execute its order. Hence, this petition.
1. Whether the sale of the shares of stock to FLAG by petitioners is valid?
2. Can the intestate court nullify the said transaction?
1. No. What we have here is a situation where some of the heirs of the decedent without
securing court approval have appropriated as their own personal property the properties of
[the] Estate, to the exclusion and the extreme prejudice of the other claimant/heirs. In
other words, these heirs, without court approval, have distributed the asset of the estate
among themselves and proceeded to dispose the same to third parties even in the
absence of an order of distribution by the Estate Court. As admitted by petitioners
counsel, there was absolutely no legal justification for this action by the heirs. There being
no legal justification, petitioner has no basis for demanding that public respondent [the
intestate court] approve the sale of the Philinterlife shares of the Estate by Juliana and Jose
Ortaez in favor of the Filipino Loan Assistance Group.
From the above decision, it is clear that Juliana Ortaez, and her three sons, Jose, Rafael
and Antonio, all surnamed Ortaez, invalidly entered into a memorandum of agreement
extrajudicially partitioning the intestate estate among themselves, despite their knowledge

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that there were other heirs or claimants to the estate and before final settlement of the
estate by the intestate court. Since the appropriation of the estate properties by Juliana
Ortaez and her children (Jose, Rafael and Antonio Ortaez) was invalid, the subsequent
sale thereof by Juliana and Jose to a third party (FLAG), without court approval, was
likewise void.
An heir can sell his right, interest, or participation in the property under administration
under Art. 533 of the Civil Code which provides that possession of hereditary property is
deemed transmitted to the heir without interruption from the moment of death of the
decedent. However, an heir can only alienate such portion of the estate that may be
allotted to him in the division of the estate by the probate or intestate court after final
adjudication, that is, after all debtors shall have been paid or the devisees or legatees
shall have been given their shares. This means that an heir may only sell his ideal or
undivided share in the estate, not any specific property therein. In the present case,
Juliana Ortaez and Jose Ortaez sold specific properties of the estate (1,014 and 1,011
shares of stock in Philinterlife) in favor of petitioner FLAG. This they could not lawfully do
pending the final adjudication of the estate by the intestate court because of the undue
prejudice it would cause the other claimants to the estate, as what happened in the
present case.
Juliana Ortaez and Jose Ortaez sold specific properties of the estate, without court
approval. It is well-settled that court approval is necessary for the validity of any
disposition of the decedents estate. In the early case of Godoy vs. Orellano, we laid
down the rule that the sale of the property of the estate by an administrator without the
order of the probate court is void and passes no title to the purchaser.
2. Yes. We see no reason why it cannot. The intestate court has the power to execute its
order with regard to the nullity of an unauthorized sale of estate property, otherwise its
power to annul the unauthorized or fraudulent disposition of estate property would be
meaningless. In other words, enforcement is a necessary adjunct of the intestate or
probate courts power to annul unauthorized or fraudulent transactions to prevent the
dissipation of estate property before final adjudication.
We are not dealing here with the issue of inclusion or exclusion of properties in the
inventory of the estate because there is no question that, from the very start, the
Philinterlife shares of stock were owned by the decedent, Dr. Juvencio Ortaez. Rather, we
are concerned here with the effect of the sale made by the decedents heirs, Juliana
Ortaez and Jose Ortaez, without the required approval of the intestate court. This being
so, the contention of petitioners that the determination of the intestate court
was merely provisional and should have been threshed out in a separate
proceeding is incorrect.
What will the court do when an executor or administrator, heir or other
interested in the estate of the deceased complains of a person being suspected
of having concealed, embezzled, or conveyed away any of the property of the
deceased, or when such person is in possession or has knowledge of any deed,
conveyance, bond, contract or other writing which contains evidence of or tends
to disclose the right, titled, interest or claim of the deceased to real or personal
property or the will of the deceased?
The court may cite such suspected person to appear before it any may examine him on
oath on the matter of such complaint; and if the person so cited refuses to appear, or to
answer on such examination or such interrogatories as are put to him, the court may
punish him for contempt, and may commit him to prison until he submits to the order of
the court. The interrogatories put any such person, and his answers thereto, shall be in
writing and shall be filed in the clerk's office.

What if that person in the above scenario, embezzled or alienates any part of
the estate before letters are issued, what will be his liability?
Such person shall be liable to an action in favor of the executor or administrator of the
estate for double the value of the property sold, embezzled, or alienated, to be recovered
for the benefit of such estate.
What if the person who fraudulently conveyed the property of the estate is the
deceased in his lifetime with intent to defraud his creditors that time of
alienation, what will the executor or administrator do?
When the following appears:

When there is a deficiency of assets in the hands of an executor or administrator

for the payment of debts and expenses of administration, and


The deceased in his lifetime had conveyed real or personal property, or a right or
interest therein, or an debt or credit, with intent to defraud his creditors or to
avoid any right, debt, or duty; or


Had so conveyed such property, right, interest, debt or credit that by law the
conveyance would be void as against his creditors, and the subject of the
attempted conveyance would be liable to attachment by any of them in his

The executor or administrator may commence and prosecute to final judgment an action
for the recovery of such property, right, interest, debt, or credit for the benefit of the
creditors; but he shall not be bound to commence the action unless on application of the
creditors of the deceased, not unless the creditors making the application pay such part of
the costs and expenses, or give security therefor to the executor or administrator, as the
court deems equitable.
With respect to the above scenario, when may creditor bring an action?
It is when there is such a deficiency of assets, and the deceased in his lifetime had made
or attempted such a conveyance, as is stated in the last preceding section, and the
executor or administrator has not commenced the action therein provided for , any creditor
of the estate may, with the permission of the court, commence and prosecute to final
judgment, in the name of the executor or administrator, a like action for the recovery of
the subject of the conveyance or attempted conveyance for the benefit of the creditors.
In relation to the above prosecution by creditor, are there any requirements with
that respect?
Yes. The following must be complied with by the creditor:

The creditor must file in a court a bond executed to the executor or

administrator, in an amount approved by the judge,


This bond must be conditioned to indemnify the executor or administrator

against the costs and expenses incurred by reason of such action.


Such creditor shall have a lien upon any judgment recovered by him in the
action for such costs and other expenses incurred therein as the court deems


Where the conveyance or attempted conveyance had been made by the

deceased in his lifetime in favor of the executor or administrator, the action
which a creditor may bring shall be in the name of all the creditors, and
permission of the court and filing of bond as above prescribed, are not

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What about if there is complaint by the executor or administrator against person

entrusted with the estate to be compelled in rendering account for the estate,
what will the action of the court with that respect?
The court may cite a person entrusted by an executor or administrator with any part of the
estate of the deceased to appear before it, and may require such person to render a full
account, on oath, of the money, goods, chattels, bonds, account, or other papers
belonging to such estate as came to his possession in trust for such executor or
administrator, and of his proceedings thereon; and if the person so cited refuses to
appear to render such account, the court may punish him for contempt as having
disobeyed a lawful order of the court.
In actions by and against executors and administrators, where will the executor
or administrator get his money to satisfy your prayer in your action? Is it not
from the estate also? Hence, why not make it filed BY THE ESTATE and not BY
The reason is this, since Rule 86 is not an action, it presupposes that the action was
already done in this Rule. However, in Rule 87, it is a separate and distinct action, so that if
it is a complaint, you always file it against the executor or administrator. Rule 87 is but an
independent action. It is not even necessary here if there is testate or intestate
proceeding. Hence, why by executor OR administrator?
You mean to say that there can be no administrator without an estate
No. There can be an administrator even if there is no estate proceeding because you can
even undertake extrajudicial settlement of the estate. In extrajudicial settlement, there
can be an agreement by and between the parties as to the administrator of the estate.
The estate does not have a separate and distinct personality. It is only an entity authorized
by law in special cases.
Sue and be sued
As a general rule, the estate cannot sue and be sued. It can only be sued in certain
instances. It cannot be sued because under Sec.1, Rule 3 (Who may be parties), it is only
an entity authorized by law that is allowed to be parties to civil actions. That is whyyou file
against the executor or administrator. Remember that an executor or administrator is a
natural person. Unlike in guardianship wherein a guardian can be a juridical person only in
guardianship over the property of the ward; however, in guardianship over the ward, the
guardian cannot be an artificial being or corporation.
Compare Sec. 7, Rule 86 (Mortgage debt due from estate) with Sec. 5, Rule 87
(Mortgage due estate may be foreclosed).
The parties under Sec. 7, Rule 86 are the estate of the decedent and the creditor. The
creditors may have affirmative remedies as to their claims against the decedent such as
going after his estate. The estate is the debtor, the mortgagor (mortgage due from the
estate). As compared to Sec. 5, Rule 87, the estate is the mortgagee.
Is the estate, under Sec. 5, Rule 87 allowed the alternative remedies in Sec 7,
Rule 86?
NO. He is only allowed one remedy which is foreclosure.
Rule 88- Payment of the Debts of the Estate

When should executor or administrator pay debts of the estate?

It is after hearing all the money claims against the estate, and after ascertaining the
amount of such claims, it appears that there are sufficient assets to pay the debts. Before
the expiration of the time limited for the payment of the debts, the court shall order the
payment thereof.
What if an appeal was duly taken from the decision of the court concerning a
claim, what will be its effect for such order of payment and distribution of
The court may suspend the order for the payment of the debts or may order the
distributions among the creditors whose claims are definitely allowed, leaving in the hands
of the executor or administrator sufficient assets to pay the claim disputed and appealed.
When a disputed claim is finally settled the court having jurisdiction of the estate shall
order the same to be paid out of the assets retained to the same extent and in the same
proportion with the claims of other creditors.
What if the testator makes provision in his will about payment of debts, will this
be respected and followed accordingly?
Yes. If the testator makes provision by his will, or designates the estate to be appropriated
for the payment of his debts, the expenses of administration, or the family expenses, they
shall be paid according to the provisions of the will.
However, when will this provision not used and what is the remedy if deficiency
with respect to such provision in the estate accrues?
If the provision made by the will or the estate appropriated, is not sufficient for that
purpose, such part of the estate of the testator, real or personal, as is not disposed of by
will, if any shall be appropriated for that purpose.
What is the preferred part of estate of the deceased to be chargeable for debts
of the deceased?
It is the personal estate of the deceased not disposed of by will shall be first chargeable
with the payment of debts and expenses meaning, the decedents FREE PORTION shall first
be chargeable for debts of the estate.
What if such free portion is not sufficient for payment of debts or if its sale
would redound to the detriment of the participants of the estate, what will be
the remedy therefrom?
Now, the whole of the real estate not dispose of by will, or so much thereof as is
necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the
executor or administrator, after obtaining the authority of the court therefor.
What if this will not be sufficient, what is then the remedy to pay all the debts of
the estate?
Any deficiency shall be met by contributions in accordance with the respective contributive
shares of the devisees, legatees or heirs in possession of portions of the estate BEFORE
contribute for the payment of such debts and expenses. The court may issue execution if
the case may require.
In Rule 86, we come to know that contingent claims exist and could be filed
against the estate, how will the executor or administrator allot for such claim?

Amen | Remedial Law Review 2 Notes | 2013

The executor or administrator must retain in his hands sufficient estate to pay such
contingent claim when the same becomes absolute,

What is the basis of payment to creditors?

It must be in accordance with the terms of such order by the court for such payment of

What if the estate becomes INSOLVENT, what will be the remedy?


Preference of Credit shall be resorted to.


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


If the insolvency pertains to a nonresident who has properties in the Philippines,

the same shall be so disposed of that his creditors here and elsewhere may
receive each an equal share, in proportion to their respective credits. (PRORATA)


If the insolvency pertains to a resident person in the Philippines but the claims
has duly proved outside, the court shall receive a certified list of such claims,
when perfected in such country, and add the same to the list of claims proved
against the deceased person in the Philippines so that a just distribution of the
whole estate may be made equally among all its creditors according to their
respective claims.


If such contingent claim becomes absolute and is presented to the court, or to

the executor or administrator, within two (2) years from the time limited for
other creditors to present their claims:

It may be allowed by the court if not disputed by the executor or

administrator and,


If disputed, it may be proved and allowed or disallowed by the court as

the facts may warrant.


If the contingent claim is allowed, the creditor shall receive payment

to the same extent as the other creditors if the estate retained by the
executor or administrator is sufficient.

But if the claim is not so presented, after having become absolute, within said
two (2) years, and allowed, the assets retained in the hands of the executor or
administrator, not exhausted in the payment of claims, shall be distributed by
the order of the court to the persons entitled to the same;


But the assets so distributed may still be applied to the payment of

the claim when established, and the creditor may maintain an action
against the distributees to recover the debt, and such distributees
and their estates shall be liable for the debt in proportion to the estate
they have respectively received from the property of the deceased.

What if after the first distribution of assets, the whole of the debts are not paid
and if the whole assets are not yet distributed or afterwards other assets come
to the hands of the executor or administrator, what will the court do?
The court may from time to time make further orders for the distributions of assets.

If the payment of debts is done personally by the executor or administrator:



On granting letters testamentary or administration, the court shall

allow to the executor or administrator a time for disposing of the
estate and paying the debts and legacies of the deceased, which shall
not, in the first instance, exceed one (1) year; but the court may, on
application of the executor or administrator and after hearing on such
notice of the time and place therefor given to all persons interested as
it shall direct, extend the time as the circumstances of the estate
require not exceeding six (6) months for a single extension not so that
the whole period allowed to the original executor or administrator
shall exceed two (2) years.

If the executor or administrator dies, and the new administrator of the same
estate is appointed:

* But the benefit of this and the preceding sections shall not be
extended to the creditors in another country if the property of
such deceased person there found is not equally apportioned to the
creditors residing in the Philippines and the other creditor, according
to their respective claims.

What is the rule with respect to contingent claim becoming ABSOLUTE in 2 years
allowed and paid?

Is the time for payment of debts and legacies fixed, or subject to extension, for
how long, if any?

An application is still required and notice to be given of the time and

place for hearing such application so that the court may extend the
time allowed for the payment of the debts or legacies beyond the time
allowed to the original executor or administrator, not exceeding six (6)
months at a time and not exceeding six (6) months beyond the time
which the court might have allowed to such original executor or

Rule 89- Sales, Mortgages, and other Encumbrances of Property of the Decedent
The fundamental reason for sales, mortgages, and other encumbrances is to pay off debts.
When will sale of personal estate of the deceased be allowed?
Upon the application of the executor or administrator, and on written notice to the heirs
and other persons interested, the court may order the whole or a part of the personal
estate to be sold, if it appears necessary for the purpose of:

paying debts,


expenses of administration, or


legacies, or


preservation of the property.

When may the court authorize sale, mortgage or other encumbrance of REALTY of the
estate for payment of debts and legacies though PERSONALTY is not yet
When any of the following appears:

When the personal estate of the deceased is not sufficient to pay the debts,
expenses of administration, and legacies, or


Where the sale of such personal estate may injure the business or other
interests of those interested in the estate, and


Where a testator has not otherwise made sufficient provision for the payment of
such debts, expenses, and legacies,

Amen | Remedial Law Review 2 Notes | 2013

The court, on the application of the executor or administrator and on written notice of the
heirs, devisees, and legatees residing in the Philippines, may:

Authorize the executor or administrator to sell, mortgage, or otherwise

encumber so much as may be necessary of the real estate, in lieu of
personal estate, for the purpose of paying such debts, expenses, and


If it clearly appears that such sale, mortgage, or encumbrance would be

beneficial to the persons interested; and


If a part cannot be sold, mortgaged, or otherwise encumbered without

injury to those interested in the remainder, the authority may be for the
sale, mortgage, or other encumbrance of the whole of such real estate,
or so much thereof as is necessary or beneficial under the circumstances.

What if the person in X, interested in the estate of H, wanted to prevent such

sale, mortgage or encumbrance, can he do so?
Yes. If that person does:


Gives a bond, in a sum to be fixed by the court, conditioned to pay the debts,
expenses of administration, and legacies within such time as the court directs;
Such bond shall be for the security of the creditors, as well as of the executor or
administrator, and may be prosecuted for the benefit of either.

(b) The court shall thereupon fix a time and place for hearing such petition, and
cause notice stating the nature of the petition, the reasons for the same, and the
time and place of hearing, to be given personally or by mail to the persons
interested, and may cause such further notice to be given, by publication or
otherwise, as it shall deem proper;
(c) If the court requires it, the executor or administrator shall give an additional
bond, in such sum as the court directs, conditioned that such executor or
administrator will account for the proceeds of the sale, mortgage, or other
(d) If the requirements in the preceding subdivisions of this section have been
complied with, the court, by order stating such compliance, may authorize the
executor or administrator to sell, mortgage, or otherwise encumber, in proper
cases, such part of the estate as is deemed necessary, and in case of sale the
court may authorize it to be public or private, as would be most beneficial to all
parties concerned. The executor or administrator shall be furnished with a
certified copy of such order;
(e) If the estate is to be sold at auction, the mode of giving notice of the time
and place of the sale shall be governed by the provisions concerning notice of
execution sale;
(f) There shall be recorded in the registry of deeds of the province in which the
real estate thus sold, mortgage, or otherwise encumbered is situated, a certified
copy of the order of the court, together with the deed of the executor or
administrator for such real estate, which shall be as valid as if the deed had
been executed by the deceased in his lifetime.

When may court authorize the sale of estate as beneficial to interested persons?
It is authorized upon application of the executor or administrator and on written notice to
the heirs, devisees, and legatees who are interested in the estate to be sold , authorize the
executor or administrator to sell the whole or a part of said estate, although not necessary
to pay debts, legacies, or expenses of administration. However, such authority shall not be
granted if inconsistent with the provisions of a will. In case of such sale, the proceeds shall
be assigned to the persons entitled to the estate in the proper proportions.
What if there is an existing debt of such deceased to other countries, what will
our court do?
The court here may authorize the executor or administrator to sell the personal estate or
to sell, mortgage, or otherwise encumber the real estate for the payment of debts or
legacies in the other country, in same manner as for the payment of debts or legacies in
the Philippines.

What if the deceased during his lifetime entered into a contract, binding in law,
with respect to a deed of real property or an interest therein, what will the court
On application for that purpose, the court may authorize the executor or administrator to
convey such property according to such contract, or with such modifications as are agreed
upon by the parties and approved by the court. If the contract is to convey real property to
the executor or administrator, the clerk of court shall execute the deed. The deed
executed by such executor, administrator, or clerk of court shall be as affectual to convey
the property as if executed by the deceased in his lifetime. However, no such conveyance
shall be authorized until notice of the application for that purpose has been given
personally or by mail to all persons interested, and such further notice has been given, by
publication or otherwise, as the court deems proper; nor if the assets in the hands of the
executor or administrator will thereby be reduced so as to prevent a creditor from
receiving his full debt or diminish his dividend.

Can our court also authorize sale, mortgage or other encumbrance of realty
acquired on execution or foreclosure?

What if the deceased H, had held real property in trust for another person, what
will the court do with the same?

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

The court may after notice given as the same in the above scenario, authorize the
executor or administrator to deed such property to the person, or his executor or
administrator, for whose use and benefit it was so held. Also, the court may order the
execution of such trust, whether created by deed or by law.

Regulations for granting authority to sell, mortgage or otherwise encumber

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

Rule 90- Distribution and Partition of the Estate

After all these claims have been settled, all debts have been paid, you go now to
distribution. This is the last stage.
But in the distribution of the estate, what Rule should be followed?
First, before distribution, there shall be payment of debts.

Amen | Remedial Law Review 2 Notes | 2013

What are these debts?

Under the rules on preference of credit, taxes are given priority. Is there an
exception? What did your Labor Law teacher teach you about that?

There are only 5 specific kinds of debts.


Debts of the decedent;


Funeral expenses;


Expenses for administration;


Allowance for the widow; and



Under PNB vs. NLRC case (March 1990): In case of liquidation of the assets of the
corporation, even taxes give way to unpaid salaries and wages. But in all other instances,
its always the taxes that will prevail.
The estate is worth one million (P1M). After payment of debts, all that had been
paid amounted to P500T. How much is left for distribution?
Only P500T.

When will the ORDER FOR DISTRIBUTION of residue made?


the debts, funeral charges, and expenses of administration,

If there are 5 compulsory heirs, devisees and legatees, A, B, C, D, E, and under

the will, A should receive P500T; B- P100T; C- P100T; D and E- P50T each and
what remains is only P500T, how will you distribute the estate?


the allowance to the widow,

Distribute the estate by ratio and proportion.


and inheritance tax, if any, chargeable to the estate in accordance with law,

When all of the following have been paid and done:

The court, on the application of the executor or administrator, or of a person interested in

the estate, and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the proportions, or parts, to which each is
entitled, and such persons may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his possession.
What if there is a controversy
shares/residues, what will be done?









The controversy shall be heard and decided as in ordinary cases. Also, questions as to
advancement made or alleged to have been made by the deceased to any heir may be
heard and determined by the court and the final order of the court shall be binding on the
persons raising the questions and on the heir.
Is the above procedure always absolute as to the payment first of all the
expenses/debts of the deceased?
No. Distribution shall be allowed if the distributees, or any of them, give a bond, in a sum
to be fixed by the court, conditioned for the payment of said obligations within such time
as the court directs.
When may executor or administrator pay for the expenses of partition?
If at the time of distribution the executor or administrator has retained sufficient effects in
his hands which may lawfully be applied for the expenses of partition of the properties
distributed, such expenses of partition may be paid by such executor or administrator
when it appears equitable to the court and not inconsistent with the intention of the
testator. Otherwise, they shall be paid by the parties in proportion to their respective
shares or interest in the premises, and the apportionment shall be settled and allowed by
the court, and, if any person interested in the partition does not pay his proportion or
share, the court may issue an execution in the name of the executor or administrator
against the party not paying the sum assessed.
Where will the recording of these final orders and judgments of the court
relating to the real estate or the partition are done?
Certified copies of final orders and judgments of the court relating to the real estate or the
partition thereof shall be recorded in the registry of deeds of the province where the
property is situated.

Suppose the asset was P10M gross value and the obligation was only P1M. You
have P900T left but the will says to distribute only P500T; P100T; P100T and
P50T to the last two, where will that excess go?
It should be distributed in accordance with intestate succession but also pro rata.
Remember we are talking here of the remainder, hence, no more debts to be paid. We
have also studied the Rules on contingent claims, under Sec. 4, Rule 74 (Liability of
Distributees and Estate), and the two-year lien.