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SPECIAL PROCEEDINGS (n) Cancellation or


[ACTION IN REM] correction of entries in the civil
registry.
(Part IX of IX)
Sec. 2. Applicability of rules
of civil actions. In the absence
I. Special Proceedings of special provisions, the rules
provided for in ordinary actions
A. Subject Matter and shall be, as far as practicable,
Applicability of applicable in special
General Rules (Rule proceedings.
72) Special proceedings are special
Sec. 1. Subject matter of because they are not
special proceedings. Rules of adversarial.
special proceedings are A special proceeding is a
provided for in the following remedy to establish the status
cases: or right of a party or a
(a) Settlement of estate of particular fact. An ordinary
deceased persons; action is one by which one
party prosecutes another for
(b) Escheat;
the enforcement or protection
(c) Guardianship and of a right or the prevention or
custody of children; redress of a wrong. (§§1 & 2 of
(d) Trustees; Rule 2)

(e) Adoption; B.Settlement of Estate


of Deceased Persons
(f) Rescission and revocation
of adoption; 1. Summary
(g) Hospitalization of insane Settlement of
persons; Estates [AMI
(h) Habeas corpus; DIDONG] [bond for
personal] (ex parte
(i) Change of name;
proceeding) [right
(j) Voluntary dissolution of of redemption for
corporations;
co-heirs and co-
(k) Judicial approval of owners as well]
voluntary recognition of minor
natural children; a. Rule 74
(l) Constitution of family Sec. 1. Extrajudicial
home; settlement by agreement
between heirs. If the decedent
(m) Declaration of absence
and death; left no will and no debts
and the heirs are all of age, or

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the minors are represented by two (2) years after the death of
their judicial or legal the decedent.
representatives duly authorized The fact of the extrajudicial
for the purpose, the parties settlement or administration
may, without securing letters of shall be published in a
administration, divide the newspaper of general
estate among themselves as circulation in the manner
they see fit by means of a provided in the next succeeding
public instrument filed in the section [THIS IS NOT
office of the register of deeds, CONSTRUCTIVE NOTICE FOR
and should they disagree, they HEIRS BUT TO CALL ALL
may do so in an ordinary action INTERESTED PERSONS TO
of partition. If there is only one
PARTICIPATE THEREIN G.R.
heir, he may adjudicate to
himself the entire estate by No. 156536]; but no
means of an affidavit filed in extrajudicial settlement shall
the office of the register of be binding upon any person
deeds. The parties to an who has not participated
extrajudicial settlement, therein or had no notice
whether by public instrument thereof.
or by stipulation in a pending Modes of Settlement of Estate
action for partition, or the sole
heir who adjudicates the entire .1 Extrajudicial Modes
estate to himself by means of .a Agreement of the heirs (Rule
an affidavit shall file, 74, §1)
simultaneously with and as a .b Affidavit of self-adjudication
condition precedent to the (Rule 74, §1)
filing of the public instrument,
or stipulation in the action for .2 Judicial Modes
partition, or of the affidavit in .a Partition (Rule 74 §1
the office of the register of “ordinary action of
deeds, a bond with the said partition”)
register of deeds, in an amount
equivalent to the value of the .b Stipulation in a pending
personal property involved as action (Rule 74, §1)
certified to under oath by the .c Interventions in a pending
parties concerned and action (Rule 74, §1)
conditioned upon the payment
.d Summary settlement of
of any just claim that may be
estates of small value (Rule
filed under section 4 of this
74, §2)
rule. It shall be presumed that
the decedent left no debts if no .e Probate (Petition for Letters)
creditor files a petition for )1 Testate
letters of administration within
)2 Intestate

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If there is a will and there are no deprived of his lawful participation


debts, a probate is mandatory. in the estate, such heir or such
other person may compel the
A petition for letters can’t be settlement of the estate in the
opposed simply because it is courts in the manner hereinafter
provided for the purpose of
expensive. satisfying such lawful
Advantages of extra-judicial participation. And if within the
settlement same time of two (2) years, it shall
appear that there are debts
.1 less expensive outstanding against the estate
which have not been paid, or that
.2 faster an heir or other person has been
unduly deprived of his lawful
participation payable in money, the
Advantages of judicial settlement court having jurisdiction of the
estate may, by order for that
.1 res judicata purpose, after hearing, settle the
amount of such debts or lawful
.2 availability of remedies (Rule participation and order how much
87) and in what manner each
distributee shall contribute in the
.a §6: Proceedings when payment thereof, and may issue
property concealed, execution, if circumstances
embezzled, or fraudulently require, against the bond
conveyed provided in the preceding section
or against the real estate
.b §7: Persons entrusted with belonging to the deceased, or
estate compelled to render both. Such bond and such real
an account estate shall remain charged with a
liability to creditors, heirs, or other
.c §8: Embezzlement before persons for the full period of
letters issued two (2) years after such
distribution, notwithstanding any
.d §9: Property fraudulently transfers of real estate that may
conveyed by deceased may have been made.
be recovered. When .2 File for letters of
executor or administrator administration [for
must bring action. creditors]
Modes of Attacking an .3 Arts. 1097 – 1105, NCC:
Extrajudicial Settlement Grounds for rescinding a
.1 Rule 74, §4: Claim of an heir, partition (within 4 years from
creditor, or other person (within the time the partition was
2 years after distribution) made) [Lesion by GUARDIANS
Sec. 4. Liability of distributees and
AND ABSENTEE] [connect with
estate. If it shall appear at any ART 1389]
time within two (2) years after the Art. 1097. A partition may be
settlement and distribution of an rescinded or annulled for the same
estate in accordance with the causes as contracts. (1073a)
provisions of either of the first two
sections of this rule, that an heir or Art. 1098. A partition, judicial or
other person has been unduly extra-judicial, may also be

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rescinded on account of lesion, distribution of the objects or


when any one of the co-heirs securities which have been
received things whose value is omitted. (1079a)
less, by at least one-fourth, than
Art. 1104. A partition made with
the share to which he is entitled,
preterition of any of the
considering the value of the things
compulsory heirs shall not be
at the time they were adjudicated.
rescinded, unless it be proved that
(1074a)
there was bad faith or fraud on the
Art. 1099. The partition made by part of the other persons
the testator cannot be impugned interested; but the latter shall be
on the ground of lesion, except proportionately obliged to pay to
when the legitime of the the person omitted the share
compulsory heirs is thereby which belongs to him. (1080)
prejudiced, or when it appears or
Art. 1105. A partition which
may reasonably be presumed, that
includes a person believed to be an
the intention of the testator was
heir, but who is not, shall be void
otherwise. (1075)
only with respect to such person.
Art. 1100. The action for rescission (1081a)
on account of lesion shall
prescribe after four years from Modes of Attacking a Judicial
the time the partition was Settlement
made. (1076)
.1 Rule 37: Motion for New Trial
Art. 1101. The heir who is sued or Reconsideration (15 days)
shall have the option of
indemnifying the plaintiff for the .2 Rule 42, §1: Appeal (a total
loss, or consenting to a new of 30 days; There is an initial
partition. period of 15 days. Under
Indemnity may be made by Rule 42 §1, a motion for
payment in cash or by the delivery extension may grant up to 15
of a thing of the same kind and
quality as that awarded to the
days of extension.)
plaintiff. .3 Rule 38: Relief from
If a new partition is made, it shall Judgments, Orders or Other
affect neither those who have not Proceedings (within 60 days
been prejudiced nor those have not after the petitioner learns of the
received more than their just
share. (1077a)
judgment, final order or other
proceeding to be set aside, and
Art. 1102. An heir who has not more than 6 months after
alienated the whole or a
considerable part of the real such judgment or final order
property adjudicated to him cannot was entered, or such
maintain an action for rescission proceeding was taken)
on the ground of lesion, but he
shall have a right to be .4 Rule 65: Certiorari (60 days)
indemnified in cash. (1078a)
.5 Rule 47: Annulment of
Art. 1103. The omission of one or Judgments or Final Orders and
more objects or securities of the Resolutions
inheritance shall not cause the
rescission of the partition on the .a Extrinsic fraud: within 4
ground of lesion, but the partition years from its discovery
shall be completed by the

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.b Lack of jurisdiction: before be held not less than (1) month


it is barred by laches or nor more than three (3) months
estoppel from the date of the last
Requisites for a valid extra- publication of a notice which
judicial partition shall be published once a week
for three (3) consecutive weeks
.1 decedent left no will and no in a newspaper of general
debts circulation in the province, and
.2 the heirs are all of age, or after such other notice to
represented by their authorized interested persons as the court
judicial or legal representatives may direct, the court may
proceed summarily, without the
.3 Public instrument appointment of an executor or
.4 Publication administrator, and without
delay, to grant, if proper,
.5 Bond, in case personal property
allowance of the will, if any
is to be distributed, conditioned
there be, to determine who are
for the payment of any just
the persons legally entitled to
claim of an heir or any other
participate in the estate, and to
person unduly deprived of his
apportion and divide it among
lawful participation in the
them after the payment of such
estate. (Rule 74, §3)
debts of the estate as the court
.6 Registration with the RoD, in shall then find to be due; and
case of real property such persons, in their own
Requisites for settlement by self- right, if they are of lawful age
adjudication and legal capacity, or by their
guardians or trustees legally
.1 only one heir appointed and qualified, if
.2 affidavit filed with the RoD otherwise, shall thereupon be
entitled to receive and enter
No extrajudicial settlement shall
into the possession of the
be binding upon any person who
portions of the estate so
has not participated therein or had
awarded to them respectively.
no notice thereof.
The court shall make such
Sec. 2. Summary settlement order as may be just respecting
of estates of small value [MTC the costs of the proceedings,
ITO]. Whenever the gross value and all orders and judgments
of the estate of a deceased made or rendered in the course
person, whether he died testate thereof shall be recorded in the
or intestate, does not exceed office of the clerk, and the
ten thousand pesos, and that order of partition or award, if it
fact is made to appear to the involves real estate, shall be
Court of First Instance having recorded in the proper
jurisdiction of the estate by the register's office.
petition of an interested person
and upon hearing, which shall

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Requisites for Summary settlement within 2 years from settlement of


of estates of small value (whether the estate.
testate or intestate)
Sec. 4. Liability of
.1 gross value of the estate does distributees and estate. If it
not exceed P10,000 shall appear at any time within
.2 that fact is made to appear to two (2) years after the
the RTC having jurisdiction of settlement and distribution of
the estate by the petition of an an estate in accordance with
interested person the provisions of either of the
first two sections of this rule,
.3 publication of a notice which that an heir or other person
once a week for 3 consecutive has been unduly deprived of his
weeks in a newspaper of lawful participation in the
general circulation in the estate, such heir or such other
province person may compel the
.4 notice to interested persons as settlement of the estate in the
the court may direct courts in the manner
hereinafter provided for the
.5 upon hearing, which shall be purpose of satisfying such
held not less 1 month nor more lawful participation [letters of
than 3 months from the date of administration]. And if within
the last publication the same time of two (2) years,
The advantage of summary it shall appear that there are
settlement of estate is not executor debts outstanding against the
or administrator is appointed. estate which have not been
Sec. 3. Bond to be filed by paid, or that an heir or other
distributees. The court, before person has been unduly
allowing a partition in deprived of his lawful
accordance with the provisions participation payable in money,
of the preceding section, may the court having jurisdiction of
require the distributees, if the estate may, by order for
property other than real is to that purpose, after hearing,
be distributed, to file a bond in settle the amount of such debts
an amount to be fixed by court, or lawful participation and
conditioned for the payment of order how much and in what
any just claim which may be manner each distributee shall
filed under the next succeeding contribute in the payment
section. thereof, and may issue
execution, if circumstances
If personal property is to be require, against the bond
distributed, the court may require provided in the preceding
the distributees to file a bond, section or against the real
conditioned for the payment of any estate belonging to the
just claim which may be filed deceased, or both. Such bond
and such real estate shall

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remain charged with a liability .2 If within 2 years after the


to creditors, heirs, or other summary settlement and
persons for the full period of distribution of an estate, it shall
two (2) years after such appear that there are debts
distribution, notwithstanding outstanding against the estate
any transfers of real estate that which have not been paid, or
may have been made. that a person has been unduly
deprived of his lawful
Sec. 5. Period for claim of
participation payable in money,
minor or incapacitated person.
the court having jurisdiction of
If on the date of the expiration
the estate may, by order for that
of the period of two (2) years
purpose, after hearing, settle
prescribed in the preceding
the amount of such debts or
section the person authorized
lawful participation and order
to file a claim is a minor or
how much and in what manner
mentally incapacitated, or is in
each distributee shall
prison or outside the
contribute in the payment
Philippines, he may present his
thereof, and may issue
claim within one (1) year after
execution, if circumstances
such disability is removed.
require, against the bond or
Remedies of excluded heir/creditor against the real estate
in an extrajudicial partition belonging to the deceased, or
.1 Within 2 years from distribution both. (Rule 74 §4)

.a claim against the bond NOTE: The 2-year periods in Rule


74, §§1 and 4 are different. Rule
.b file for letters of 74, §1’s “two year period from
administration death of the decedent” refers to a
.2 Rescind the partition under the presumption of a ‘no debt’
NCC (within 4 years from the situation in the absence of any
time the partition was made) claim by a creditor within such
period. On the other hand, Rule
The bond and real estate remains 74, §4’s “two years from the
charged with a liability to settlement of the estate” refers to
creditors, heirs, or other persons the period allowed to a creditor
for 2 years after the distribution, and omitted heir to file a claim
despite any transfers that may against the estate.
have been made.
Exceptions: If on the date of the
Instances when the probate court expiration of 2 years from
may issue writs of execution distribution, the claimant is
.1 In the exercise of probate .1 minor
jurisdiction, RTC may issue
warrants and processes .2 mentally incapacitated
necessary to carry into effect .3 in prison or
their orders and judgments.
(Rule 73 §3) .4 outside the Philippines,

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he may present his claim within 1 only if discovered within 2 years


year after such disability is from partition and the claimant
removed. moves for appointment of a new
administrator.
b. Cases
Lajom v. Viola, 73 Phil. 563 (1942)
Arcillas v. Montejo, 26 SCRA 197 A judicial partition does not bind
(1968) The fact that an intestate the heirs who were not parties
estate has no debts does not thereto. The heir who has been
preclude from instituting deprived of his share may bring an
administration proceedings. action for reinvidication within 10
Extrajudicial settlement of estate years. Similarly, an heir who had
is merely discretionary on the part knowledge of the partition, but
of the heirs. Delay and expenses was deceived by a participating
are not grounds to deny a petition heir into not questioning the
for administration. Probate still partition may bring an action for
can be useful because the truth or reinvidication within 10 years.
veracity of claims relating to other
properties can be more adequately Jerez v. Nietes, 30 SCRA 905
ascertained in administration (1969) An approved project of
proceedings. partition may be reopened upon
motion for intervention (not an
De Garces v. Broce, 23 SCRA 612 independent action) by a
(1968) The effectivity between the preterited heir. However, such a
heirs of an extrajudicial settlement motion must be supported by
is not dependent on the proof, and not just allegations, of
registration of the agreement. the interest of the movants to
Registration is necessary only to justify reopening of the probate
affect 3rd parties and creditors and proceedings.
to protect creditors and the heirs
against tardy claims. As between Gerona v. de Guzman, 11 5CRA
the heirs, an unregistered 1st 153 (1964) Fraud in the execution
partition prevails over a 2nd of a deed of extra-judicial
partition even if registered. The settlement is demed to have been
requirement of a public instrument discovered from its registration.
instrment is merely evidentiary Hernandez v. Andal, 78 Phil. 196
against 3rd parties. (1947) Between the parties, an
McMicking v. Sy Conbieng, 21 oral partition is valid and may be
Phil. 211 (1912) After partition, proved by parol evidence. Partition
the administrator is stripped of all is not covered by the statute of
responsibility to the estate, its frauds because it is not a
creditors, the heirs and the court. convweyance but simply a
Concurrently, his surety is separation and desitnation of that
completely discharged. The only part of the land which belongs to
requisite for a a partition is that each tenant in common. Besides,
the estate has no debts. Finally, the statute of frauds does not
after partition, a claim is allowed

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apply to executed contracts, 2. Production of Will.


whether complete or partial. Allowance of Will
Torres v. Torres, 10 SCRA 185 Necessary
(1964) Where the estate had no
debts and the heirs have entered a. Rule 75 [executor
into an extrajudicial settlement of vs administrator]
estate, but are unable to agree on Sec. 1. Allowances necessary.
the physical segregation of the Conclusive as to execution. No
property, the remedy is not estate will shall pass either real or
proceedings but an action for personal estate unless it is
partition. proved and allowed in the
Carreon v. Agcaoili, 1 SCRA 521 proper court. Subject to the
(1961) Where more than 2 years right of appeal, such allowance
have passed since the estate was of the will shall be conclusive
settled by an affidavit of self- as to its due execution.
adjudication, the lien of unduly Probate of a will is mandatory. An
excluded heirs on property of the extrajudicial partition or
estate becomes functus oficio. Any settlement is legally possible only
annotation of such lien on titles to if there was no will.
property is rendered ineffective.
The title of a good faith buyer of However, a project of partition
such property who bought the which does not follow the will is
property after 2 year period can admissible, based on the principles
not be questioned. that “future inheritance cannot be
waived” and “inheritance passes
Sampilo v. CA, 103 Phil. 70 (1958) at decedent’s death.” The heirs
The 2 year period for unduly may waive the benefits given them.
excluded persons to question an
extrajudicial settlement of an Sec. 2. Custodian of will to
estate applies only to those who deliver. The person who has
participated in the settlement. custody of a will shall, within
twenty (20) days after he knows
de Leon: Note that in Carreon, the of the death of the testator,
court ruled that the buyer of the deliver the will to the court
property was in good faith. In having jurisdiction, or to the
Sampilo, there was a finding that
executor named in the will.
the buyer was aware that there
had been excluded heirs. I think Sec. 3. Executor to present
the Sampilo ruling is the prevailing will and accept or refuse trust.
doctrine because Rule 74 Sec. 1 A person named as executor in
states that a will shall, within twenty (20)
Sec. 1. xxx no extrajudicial
days after he knows of the
settlement shall be binding upon death of the testator, or within
any person who has not twenty (20) days after knows
participated therein or had no that he is named executor if he
notice thereof. obtained such knowledge after

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the death of the testator, Acain, preterition was not in


present such will to the court dispute, hence, the will was denied
having jurisdiction, unless the probate.
will has reached the court in Guevarra v. Guevarra, 98 Phil. 249
any other manner, and shall, (1956) A petition to allow a will
within such period, signify to does not prescribe.
the court in writing his
acceptance of the trust or his Mercado v. Santos, 66 Phil. 215
refusal to accept it. (1938) Probate renders conclusive
the due execution of the will. A
Sec. 4. Custodian and subsequent prosecution for forgery
executor subject to fine for of the testator’s signature of a
neglect. A person who neglects probated will will not prosper. The
any of the duties required in remedy is file an appeal,
the two last preceding sections declaratory relief (Rule 63) or
without excuse satisfactory to special civil action for certiorari
the court shall be fined not (Rule 65).
exceeding two thousand pesos.
Manahan v. Manahan, 58 Phil. 448
Sec. 5. Person retaining will (1933) An intestate non-
may be committed. A person compulsory uninstituted heir is not
having custody of a will after entitled to be notified of the
the death of the testator who probate proceedings. Probate is
neglects without reasonable conclusive as to the due execution
cause to deliver the same, when of the will.
ordered so to do, to the court
having jurisdiction, may be Fernandez v. Dimagiba, 21 SCRA
committed to prison and there 428 (1967) Allowance of a will to
kept until he delivers the will. probate if a final and appealable
judgment. The opponent should
b. Cases not await resolution of other issues
Palacios v. Catimbang Palacios, before appealing the decision.
106 Phil. 739 (1959) Where the Failure to appeal renders the
testator himself petitioned for probate as conclusive as to the due
probate, the court can not deny execution of the will. The issue of
probate of a will on the ground of revocation is irrelevant in the
preterition. probate proceedings. Only a total
and absolute revocation of the will
Note that the will was allowed in itself can preclude probate.
Palacios because it was the Probate of a will is mandatory,
testator himself who petitioned for hence it can not be precluded by a
probate and can therefore the fact that the proponent was in
subsequently institute the estoppel.
preterited heir. In Maninang, the
will was allowed probate because Riera v. Palmori, 40 Phil. 105
there was an issue of defective (1919) To question allowance of a
disinheritance or preterition. In will via relief from judgment (Rule
38, 1997 Rules of Civil Procedure)

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there must have been FAME even before petition for


committed and the petition should probate the court aquires
be filed within 60 days from jurisdiction over it.
discovery mut not more than 6 Excluding others only for
months from entry of judgment. non resident aliens]
In re: Johnson, 39 Phil. 156 (1918) 1) Rule 73
To question allowance of a will via
relief from judgment (Rule 38, Sec. 1. Where estate of
1997 Rules of Civil Procedure) deceased person settled. If the
there must have been FAME decedent is an inhabitant of the
committed and the petition should Philippines at the time of his
be filed within 60 days from death, whether a citizen or an
discovery mut not more than 6 alien, his will shall be proved,
months from entry of judgment. or letters of administration
granted, and his estate settled,
U.S. v. Chiu Guimco, 36 Phil. 917 in the Court of First Instance in
(1917) The penalty imposable on a the province in which he
person who fails to produce a will resides at the time of his death,
depends on the manner in which and if he is an inhabitant of a
the court is acting. If it is acting as foreign country, the Court of
a criminal court, then it can First Instance of any province
impose only a fine. If it is acting as in which he had estate. / The
a probate court, then it can impose court first taking cognizance of
only imprisonment. the settlement of the estate of
3. Initiation of a decedent, shall exercise
Proceedings jurisdiction to the exclusion of
all other courts [APPLIES TO
a. Whose estate may NON RESIDENT DECEDENTS
be settled ONLY!!!/ if you are a RESIDENT
IT SHOULD BE FILED IN THE
does not have to be a resident; PLACE WHERE YOU RESIDE
does not have to be a citizen (Rule OR DOMICILED OTHERWISE
73 §1) IMPROPER VENUE! ]. The
b. Where petition jurisdiction assumed by a
may be filed court, so far as it depends on
the place of residence of the
Jurisdiction of the RTC has decedent, or of the location of
exclusive original jurisdiction his estate, shall not be
over matters of probate where contested in a suit or
the gross value of the estate proceeding, except in an appeal
exceeds from that court, in the original
.1 P200,000 outside Metro case, or when the want of
Manila (P300,000 by 2004) jurisdiction appears on the
record.
.2 P400,000 in Metro Manila
[once will was submitted

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Venue: If the decedent, at the time Court of First Instance may


of his death, is a issue warrants and processes
.1 Philippine inhabitant – RTC in necessary to compel the
the province in which he resides attendance of witnesses or to
at the time of his death, and carry into effect their orders
and judgments, and all other
.2 Foreign inhabitant powers granted them by law. If
.a RTC of any province in which a person does not perform an
he had estate order of judgment rendered by
a court in the exercise of its
.b The court first taking probate jurisdiction, it may
cognizance shall exercise issue a warrant for the
jurisdiction to the exclusion apprehension and
of all other courts. imprisonment of such person
A determination of venue may be until he performs such order or
questioned only judgment, or is released.
.1 in an appeal (of the main case, Powers of the probate court
not just the issue of venue [Rule .1 issue warrants and processes
109, Rule 63], or necessary to compel the
.2 when the want of jurisdiction attendance of witnesses or to
appears on record. carry into effect their orders
an\d judgments, and all other
Sec. 2. Where estate settled
powers granted them by law
upon dissolution of marriage.
When the marriage is dissolved .2 If a person defies a probate
by the death of the husband or order, it may issue a warrant for
wife, the community property the apprehension and
shall be inventoried, imprisonment of such person
administered, and liquidated, until he performs such order or
and the debts thereof paid, in judgment, or is released.
the testate or intestate Sec. 4. Presumption of
proceedings of the deceased death. For purposes of
spouse. If both spouses have settlement of his estate, a
died, the conjugal partnership person shall be presumed dead
shall be liquidated in the if absent and unheard from for
testate or intestate proceedings the periods fixed in the Civil
of either. Code. But if such person proves
The property regime is liquidated to be alive, he shall be entitled
in the probate proceedings of the to the balance of his estate
deceased spouse. If both spouses after payment of all his debts.
have died, it can be liquidated the The balance may be recovered
probate proceedings of either. by motion in the same
proceeding.
Sec. 3. Process. In the
exercise of probate jurisdiction,

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cf Arts. 390-392 NCC, and Rule The following shall be considered


131 Sec. 3 (w) RoC dead for all purposes including the
division of the estate among the
Art. 390. After an absence of heirs:
seven years, it being unknown
whether or not the absentee still (1) A person on board a vessel lost
lives, he shall be presumed dead during a sea voyage, or an aircraft
for all purposes, except for those which is missing, who has not been
of succession. heard of for four years since the
loss of the vessel or aircraft;
The absentee shall not be
presumed dead for the purpose of (2) A member of the armed forces
opening his succession till after an who has taken part in armed
absence of ten years. If he hostilities, and has been missing
disappeared after the age of for four years;
seventy-five years, an absence of (3) A person who has been in
five years shall be sufficient in danger of death under other
order that his succession may be circumstances and whose
opened. (n) existence has not been known for
Art. 391. The following shall be four years;
presumed dead for all purposes, (4) If a married person has been
including the division of the estate absent for four consecutive years,
among the heirs: the spouse present may contract a
(1) A person on board a vessel lost subsequent marriage if he or she
during a sea voyage, or an has a well-founded belief that the
aeroplane which is missing, who absent spouse is already dead. In
has not been heard of for four case of disappearance, where
years since the loss of the vessel or there is danger of death under the
aeroplane; circumstances hereinabove
provided, an absence of only two
(2) A person in the armed forces years shall be sufficient for the
who has taken part in war, and has purpose of contracting a
been missing for four years; subsequent marriage. However, in
any case, before marrying again,
(3) A person who has been in
the spouse present must institute a
danger of death under other
summary proceeding as provided
circumstances and his existence
in the Family Code and in the rules
has not been known for four years.
for a declaration of presumptive
(n)
death of the absentee, without
Rule 131, Sec. 3. xxx (w) That after prejudice to the effect of
an absence of seven years, it being reappearance of the absent
unknown whether or not the spouse. [PEARL HARBOR LOL]
absentee still lives, he is
considered dead for all purposes, If the absentee proves to be alive,
except for those of succession. he shall be entitled to the balance
The absentee shall not be of his estate after payment of all
considered dead for the purposeof his debts. The balance may be
opening his succession till after an recovered by motion in the same
absence of ten years. If he proceeding. cf Art. 392 NCC
disappeared after the age of
seventy-five years, an absence of Art. 392. If the absentee appears,
five years shall be sufficient in or without appearing his existence
order that his succession may be is proved, he shall recover his
opened. property in the condition in which
it may be found, and the price of

Remedial Law Reviewer Mark de Leon, JD 2001


21

any property that may have been death of the decedent, 2) his
alienated or the property acquired residence at the time of his
therewith; but he cannot claim
either fruits or rents. (194) death in the province where the
probate court is sitting, or if he
2) Cases is an inhabitant of a foreign
In re Kaw Singco, 74 Phil. 238 country, his having left his
(1943) Residence of deceased in estate in such province.
probate proceedings is a matter of Manzanero v. CFI of Batangas, 61
venue and not of jurisdiction over Phil. 850 (1935) The determination
the subject matter. All RTCs have of venue may be questioned only if
jurisdiction over probate cases, but the want of jurisdiction appears
not all ave the proper venue. The on record, or on appeal, NOT
SC had to resolve this issue through a special civil action of
because it can take cognizance of certiorari. Certiorari is available
the case only if the court’s only where want of jurisdiction
jurisdiction, not venue, is being appears on the record.
questioned.
Eusebio v. Eusebio, 100 Phil. 593
Garcia Fule v. Court of Appeals, 74 (1956) To establish residence
SCRA 189 (1976) Residence should sufficient to confer venue, there
be understood in its popular sense must have been an intention of the
as the personal, actual or physical decedent to live there indefinitely.
presence in a place and actual stay The provision that the court first
thereat. It is not to be understood taking cognizance of the case
as domicile or legal residence. [for excludes all other courts applies
purposes of venue] mainly to non-resident decedents
Cuenco v. Court of Appeals, 53 who have properties in several
SCRA 360 (1973) The court with provinces.
whom the petition is first filed, de Leon: Fule said residence
must also first take cognizance of means actual presence. Eusebio
the settlement of the estate in qualified this by saying actual
order to exercise jurisdiction over presence must also be
it to the exclusion of all other accompanied by an intent to stay
courts. Questions on venue are there indefinitely [SO THIS IS
resolved by the court taking first DOMICILE?]. In Cuenco, the 2nd
cognizance of the case. Such court, court had venue because the 1st
may also decline to take court deferred to it. It is best to
cognizance of the petition and hold ignore Cuenco’s application of the
the petition before it in abeyance, principle on exclusion because
and instead defer to the second Eusebio said this principle applies
court. Furthermore, probate to cases where there are courts of
proceedings take precedence over concurrent venue, i.e. when the
intestate proceedings. Lastly, the decedent is not a resident of the
Rules require that the petition Philippines and has left properties
for allowance of a will must in different provinces.
show the jurisdictional facts: 1)

Remedial Law Reviewer Mark de Leon, JD 2001


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Uriarte v. CFI of Neg. Occ., 33 .1 notice sent only to his


SCRA 252 (1970) Though testate compulsory heirs (Rule 76 Sec.
proceedings take precedence over 4)
intestate proceedings, if the .2 no witnesses required even if
intestate court took cognizance of the will is contested (Rule 76
the estate before the testate court, Sec. 12)
the will should be submitted to the
intestate court for probate. .3 probate may not be denied on
However, objections to venue may the ground of preterition
be waived and lost by laches. [Palacios v. Catimbang Palacios,
106 Phil. 739 (1959)]
c. Who may file
petition (Rule 76 d. Who may oppose
Sec. 1) petition (Rule 76
Sec. 10)
Sec. 1. Who may petition for
the allowance of will. Any Sec. 10. Contestant to file
executor, devisee, or legatee grounds of contest. Anyone
named in a will, or any other appearing to contest the will
person interested in the estate, must state in writing his
may, at any time after the death grounds for opposing its
of the testator, petition the allowance, and serve a copy
court having jurisdiction to thereof on the petitioner and
have the will allowed, whether other parties interested in the
the same be in his possession estate.
or not, or is lost or destroyed. Whether testsate or intestate, the
The testator himself may, only persons who may oppose the
during his lifetime, petition the petition are those who may inherit
court for the allowance of his by intestacy.
will. e. Grounds for
Executor, devisee or legatee in the opposition (Rule
will, or any other person interested 76, §9)
in the estate (Rule 76, §1) may
petition for probate. Sec. 9. Grounds for
disallowing will. The will shall
Note that any interested person be disallowed in any of the
may apply for probate, with or following cases;
witout possession of the will.
If not executed and attested
Note there is not deadline in filing as required by law;
a petition for probate. However, an
executor should present a will If the testator was insane, or
within 20 days from knowledge of otherwise mentally incapable to
the testator’s death. make a will, at the time of its
execution;
Special rules when the testator
applies for probate himself

Remedial Law Reviewer Mark de Leon, JD 2001


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If it was executed under has been filed by the testator


duress, or the influence of fear, himself.
or threats; Jurisdictional requirements for
If it was procured by undue probate of will
and improper pressure and .1 hearing
influence, on the part of the
beneficiary, or of some other .2 publication, unless petition for
person for his benefit; probate has been filed by the
testator himself
If the signature of the
testator was procured by fraud b. Cases
or trick, and he did not intend Santos v. Castillo, 64 Phil. 211
that the instrument should be (1937) The applicant for probate
his will at the time of fixing his should be the executor, or a person
signature thereto. who ahs custody of the will to be
4. Jurisdictional probated. – This had been
Requirements for abrogated by the rules (p. 518-519
Moran)
Probate of Will
[publication is Rodriguez v. Borja, 17 SCRA 418
(1966) Probate jurisdiction vests
important for
upon delivery of the will to the
jurisdiction] court, even if no petition for its
a. Rule 76 Sec. 3 allowance was filed until later,
because by then the Court could,
Sec. 3. Court to appoint time motu proprio, have taken steps to
for proving will. Notice thereof fix the time and place for proving
to be published. When a will is the will.
delivered to, or a petition for
the allowance of a will is filed de Leon: Rodriguez sad mere
in, the court having delivery of the will vests the court
jurisdiction, such court shall fix with jurisdiction to the exclusion of
a time and place for proving other courts, while Cuenco said it
the will when all concerned is when the court takes cognizance
may appear to contest the that it excludes other courts.
allowance thereof, and shall Furthermore, Eusebio said the
cause notice of such time and principle of exclusion applies only
place to be published three (3) to estates of non-inhabitants.
weeks successively, previous to [RESIDENCE IS DOMICILE. FOR
the time appointed, in a RESIDENT DECEDENTS,
newspaper of general DOMICILE IS IMPORTANT TO
circulation in the province. citizens OTHERWISE IMPROPER
VENUE, FOR ALIEN ANYWHERE
But no newspaper WHERE HE HAS PROPERTY G.R.
publication shall be made No. L-8409 ]
where the petition for probate

Remedial Law Reviewer Mark de Leon, JD 2001


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Perez v. Perez, 105 Phil. 1132 legatees, and devisees of the


(1959) Court acquires jurisdiction testator or decedent;
over all persons interested in the
(c) The probable value and
estate through character of the property of the
publication. Failure to serve estate;
notice on distributees is a mere (d) The name of the person
procedural, not a jurisdictional, for whom letters are prayed;
error. [Because notice is only for
creditors] (e) If the will has not been
delivered to the court, the
Basa v. Mercado, 61 Phil. 632 name of the person having
(1935) Publication for 3 weeks custody of it.
does not require 21 days to pass.
Publication need only be on 3 But no defect in the petition
separate weeks. shall render void the allowance
of the will, or the issuance of
To de deemed a newspaper of letters testamentary or of
general circulation, such administration with the will
newspaper should annexed.
.1 Not be for a particular class, Bautista: Prayer for relief
profession, trade, calling, race
or religious denomination. Notice and Process
.2 Be published for dissemination (Rule 76 Sec. 4)
of local news and general
information. (Failure to serve notice on
distributees is a mere procedural,
.3 Be published at regular not a jurisdictional, error. )
intervals.
Sec. 4. Heirs, devisees,
The custodian of the will should legatees, and executors to be
likewise be stated. notified by mail or personally.
The court shall also cause
copies of the notice of the time
and place fixed for proving the
5. Contents of will to be addressed to the
designated or other known
petition heirs, legatees, and devisees of
Rule 76, Sec. 2. Contents of the testator resident in the
petition. A petition for the Philippines at their places of
allowance of a will must show, residence, and deposited in the
so far as known to the post office with the postage
petitioner [cuenco case]: thereon prepaid at least twenty
(a) The jurisdictional facts; (20) days before the hearing, if
such places of residence be
(b) The names, ages, and known. A copy of the notice
residences of the heirs, must in like manner be mailed

Remedial Law Reviewer Mark de Leon, JD 2001


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to the person named as de Leon: In case the testator is not


executor, if he be not be a resident and his will had been
petitioner; also, to any person probated abroad, the notice
named as co-executor not requirements are provided by Rule
petitioning, if their places of 77 Sec. 2
residence be known. Personal Sec. 2. Notice of hearing for
service of copies of the notice allowance. When a copy of such
at least ten (10) days before the will and of the order or decree of
day of hearing shall be the allowance thereof, both duly
authenticated, are filed with a
equivalent to mailing. petition for allowance in the
If the testator asks for the Philippines, by the executor or
other person interested, in the
allowance of his own will,
court having jurisdiction, such
notice shall be sent only to his court shall fix a time and place for
compulsory heirs. the hearing, and cause notice
thereof to be given as in case of an
c. What notices to original will presented for
be sent allowance.

Notice of time and place of e. How notices to be


hearing. sent
Jurisdiction over the parties is Notices may be sent
acquired by mere publication in a
.1 by mail with the postage
newspaper of general circulation
prepaid at least 20 days before
because it is proceeding in rem.
hearing, if such places of
d. To whom notices residence be known, or
to be sent .2 Personal service at least 10
Where the testator is a resident, days before hearing
notices are sent to 5. Hearing on Petition
.1 non-petitioning executors
a. Proofs required
.2 designated heirs on Probate
.3 other known heirs Hearing
.4 legatees, and devisees 1) Rule 76 Secs. 5,
.5 only compulsory heirs, if the 6, 7, 8, 11, 12
testator is the applicant Sec. 5. Proof at hearing.
de Leon: What is the point of What sufficient in absence of
notifying the compulsory heirs contest. At the hearing
when the testator is the applicant compliance with the provisions
if they can’t not oppose on the of the last two preceding
ground of preterition [Palacios v. sections must be shown before
Catimbang Palacios, 106 Phil. 739 the introduction of testimony in
(1959)] ? support of the will. All such
testimony shall be taken under

Remedial Law Reviewer Mark de Leon, JD 2001


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oath and reduced to writing. If must be filed and recorded as


no person appears to contest other wills are filed and
the allowance of the will, the recorded.
court may grant allowance Sec. 7. Proof when witnesses
thereof on the testimony of one do not reside in province. If it
of the subscribing witnesses appears at the time fixed for
only, if such witness testify that the hearing that none of the
the will was executed as is subscribing witnesses resides
required by law. in the province, but that the
[UNCONTESTED WILL ONE deposition of one or more of
WITNESS] them can be taken elsewhere,
In the case of a holographic the court may, on motion,
will, it shall be necessary that direct it to be taken, and may
at least one witness who knows authorize a photographic copy
the handwriting and signature of the will to be made and to be
of the testator explicitly declare presented to the witness on his
that the will and the signature examination, who may be asked
are in the handwriting of the the same questions with
testator. In the absence of any respect to it, and to the
such competent witness, and if handwriting of the testator and
the court deem it necessary, others, as would be pertinent
expert testimony may be and competent if the original
resorted to. will were present.
Sec. 6. Proof of lost or Sec. 8. Proof when witnesses
destroyed will. Certificate dead or insane or do not reside
thereupon. No will shall be in the Philippines. If it appears
proved as a lost or destroyed at the time fixed for the
will unless the execution and hearing that the subscribing
validity of the same be witnesses are dead or insane,
established, and the will is or that none of them resides in
proved to have been in the Philippines, the court may
existence at the time of death admit the testimony of other
of the testator, or is shown to witnesses to prove the sanity of
have been fraudulently or the testator, and the due
accidentally destroyed in the execution of the will; and as
lifetime of the testator without evidence of the execution of the
his knowledge, nor unless its will, it may admit proof of the
provisions are clearly and handwriting of the testator and
distinctly proved by at least two of the subscribing witnesses, or
(2) credible witnesses. When a of any of them.
lost will is proved, the Sec. 11. Subscribing
provisions thereof must be witnesses produced or
distinctly stated and certified accounted for where will
by the judge, under the seal of contested. If the will is
the court, and the certificate

Remedial Law Reviewer Mark de Leon, JD 2001


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contested, all the subscribing will and no contest in filed, the


witnesses, and the notary in the fact that he affirms that the
case of wills executed under the holographic will and the
Civil Code of the Philippines, if signature are in his own
present in the Philippines and handwriting, shall be sufficient
not insane, must be produced evidence of the genuineness
and examined, and the death, and due execution thereof. If
absence, or insanity of any of the holographic will is
them must be satisfactory contested, the burden of
shown to the court. If all or disproving the genuineness and
some of such witnesses are due execution thereof shall be
present in the Philippines but on the contestant. The testator
outside the province where the may, in his turn, present such
will has been filed, their additional proof as may be
deposition must be taken. If necessary to rebut the evidence
any or all of them testify for the contestant.
against the due execution of Witnesses required
the will, or do not remember
having attested to it, or are .1 Notarial will
otherwise of doubtful .a uncontested: only one
credibility, the will may, subscribing witness is
nevertheless, be allowed if the required (Rule 76, §5)
court is satisfied from the
testimony of other witnesses .b contested: all subscribing
and from all the evidence witnesses, plus the notary is
presented that the will was required (Rule 76, §11)
executed and attested in the .c if the testator asks for the
manner required by law. allowance of is own will:
If a holographic will is notice should be given only
contested, the same shall be to the compulsory heirs
allowed if at least three (3) (Rule 76, §4); no need to
witnesses who know the present other witnesses even
handwriting of the testator if will is contested (Rule 76,
explicitly declare that the will §12)
and the signature are in the If the subscribing witness is not in
handwriting of the testator; in the province, have his/her
the absence of any competent deposition taken.
witness, and if the court deem .2 Holographic will
it necessary, expert testimony
may be resorted to. .a uncontested: at least one
witness who knows the
Sec. 12. Proof where testator handwriting and signature of
petitions for allowance of the testator explicitly declare
holographic will. Where the that the will and signature
testator himself petitions for are in the handwriting of the
the probate of his holographic

Remedial Law Reviewer Mark de Leon, JD 2001


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testator; in his/her absence, proponent. The proponent may


introduce a handwriting present other proof of due
expert (Rule 76, §5) execution, e.g. testimony of the
notary public and another lawyer.
.b contested: at least three
Although the attesting witnesses
witnesses who know the
are the best witnesses as to the
handwriting of the testator;
due execution of the will, their
in their absence, introduce a
testimony may be overcome by
handwriting expert (Rule 76,
competent and more credible
§11)
evidence.
.3 Lost or destroyed will – At least
de Leon: Note that this is an
2 credible witnesses should
additional exception to the general
prove that
rule in evidence that an offeror is
.a Execution and validity of the bound by the testimony of his
will witness (Rule 132 Sec. 12).
.b The will’s existence at the de Leon: In case of contest,
time of testator’s death, or Cabang ruled that any competent
its fraudulent or accidental subscribing witness must testify.
destruction in the lifetime of Aldanese ruled that testimony
the testator without his need not be at the probate
knowledge hearing, but may be through
.c Clear and distinct proof of depositions. Vda. de Ramos ruled
the will’s provisions that in case any or all of them
testified against the proponent, the
.d A copy, if the lost will was proponent may resort to other
holographic evidence to prove the due
2) Cases execution of the will.

Cabang v. Delfinado, 34 Phil. 291 Gago v. Mamuyac, 49 Phil. 902


(1916) If the will is contested, the (1927) The proponent has the
proponent is obligated to present burden to prove the existence of
all subscribing witnesses able to the will if he seeks to have a
testify. Failure to do so will be fatal carbon copy of a holographic will
to probate. was admitted to probate.

Aldanese v. Salutillo, 47 Phil. 548 Gan v. Yap, 104 Phil. 509 (1958)
{1925) It is testimony, not physical Contents of a holographic will may
presence, that is required of not be proved by parole evidence.
subscribing witnesses. Depositions Rodelas v. Aranza, 119 SCRA 16
will suffice. (1982) Contents of a holographic
Vda. de Ramos v. CA, 81 SCRA 393 will may be proved by a copy.
(1978) The declaration of the In Rodelas, there was a copy of the
subscribing witness, being forced holographic will. In Gan, there was
witnesses, against the probate of a no such copy. In fact, a footnote in
will is not conclusive on the Gan acknowledged that the lost

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holographic will may be proved intestate proceedings if he is not


had there been a copy. an intestate heir. Where a
compulsory heir was not at all
b. Scope of Inquiry mentioned in, the will will be
on Proceeding to denied probate.
Probate a Will
The institution of heir is annulled
(Rule 76) only if a compulsory heir in the
Maninang v. CA, 114 SCRA 470 direct line is not mentioned in the
(1982) Where a compulsory heir in will at all. Hence, if only the widow
the direct line was alleged to have was preterited, then the nephew
been preterited, but the proponent would have standing.
insists on a ruling on the extrinsic If the petition is for letters of
validity of a will, the court can not administration, the petitioner need
rule on the issue of preterition. In not be an heir. Even a creditor may
this case, the general rule that in a file such petition.
probate of a will, the court is
limited to the extrinsic validity of 6. Binding Force of
the will, applies. The exception Trial Court Order
applies only if practical Allowing or
considerations so demanded, e.g. Disallowing a Will
the parties shunted aside the issue
of whether or not the will should a. Rule 76, Sec. 13
be allowed probate. Furthermore,
Sec. 13. Certificate of
if the issue is whether there was
allowance attached to proved
preterition or a defective
will. To be recorded in the
disinheritance, the court must first
Office of Register of Deeds. If
rule on the extrinsic validity of the
the court is satisfied, upon
will.
proof taken and filed, that the
If there was intentional preterition will was duly executed, and that
of a compulsory heir in the direct the testator at the time of its
line, Justice Herrera says this is an execution was of sound and
act of disinheritance. disposing mind, and not acting
If there is a preterition, the under duress, menace, and
legitimes would be given and the undue influence, or fraud, a
legacies would remain. If there certificate of its allowance,
was an invalid disinheritance, the signed by the judge, and
“disinherited” heir would get the attested by the seal of the court
extent of the portion of his shall be attached to the will
supposed inheritance. and the will and certificate filed
and recorded by the clerk.
Acain v. IAC, 155 SCRA 100 Attested copies of the will
(1987): Standing to intervene in a devising real estate and of
will is dependent on interest in the certificate of allowance thereof,
estate. A legatee in a void will has shall be recorded in the
no standing to intervene in the

Remedial Law Reviewer Mark de Leon, JD 2001


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register of deeds of the place for the hearing, and


province in which the lands lie. cause notice thereof to be given
as in case of an original will
b. Cases presented for allowance.
Manalo v. Paredes, 47 Phil. 938 Sec. 3. When will allowed,
(1925) A will can not be submitted and effect thereof. If it appears
for probate if a withdrawal of a
at the hearing that the will
previous petition had been
should be allowed in the
approved by the court, even if the
Philippines, the court shall so
withdrawal was based on an
allow it, and a certificate of its
agreement by the parties.
allowance, signed by the judge,
Bautista: In this case, the SC and attested by the seal of the
impliedly held that the parties may court, to which shall be
stipulate as to the testamentary attached a copy of the will,
capacity of the testator. The court shall be filed and recorded by
impliedly recognized that the the clerk, and the will shall
parties may disregard the will. have the same effect as if
originally proved and allowed
7. Allowance of Will
in such court.
Proved Outside of
Philippines and Sec. 4. Estate, how
administered. When a will is
Administration of thus allowed, the court shall
Estate thereunder grant letters testamentary, or
a. Rule 77 letters of administration with
the will annexed, and such
Sec. 1. Will proved outside letters testamentary or of
Philippines may be allowed administration, shall extend to
here. Wills proved and allowed all the estate of the testator in
in a foreign country, according the Philippines. Such estate,
to the laws of such country, after the payment of just debts
may be allowed, filed, and and expenses of administration,
recorded by the proper Court of shall be disposed of according
First Instance in the to such will, so far as such will
Philippines. may operate upon it; and the
Sec. 2. Notice of hearing for residue, if any, shall be
allowance. When a copy of such disposed of as is provided by
will and of the order or decree law in cases of estates in the
of the allowance thereof, both Philippines belonging to
duly authenticated, are filed persons who are inhabitants of
with a petition for allowance in another state or country.
the Philippines, by the executor b. Cases
or other person interested, in
the court having jurisdiction, Suntay v. Suntay, 95 Phil. 500
such court shall fix a time and (1954) For a will probated abroad

Remedial Law Reviewer Mark de Leon, JD 2001


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be allowed probate here, must when and to whom


prove Issued
.1 the foreign court was a probate
a. Rule 78 [letters
court
testamentary vs
.2 the probate procedure in the letters of
foreign jurisdiction
administration]
.3 legal requirements for the
execution of a will had been Sec. 1. Who are incompetent
complied. to serve as executors or
administrators. No person is
Since there was no proof of the competent to serve as executor
foreign law in this case, it was or administrator who:
presumed to be the same as in RP.
Since the will failed to comply with (a) Is a minor;
the Philippine requirements for (b) Is not a resident of the
probate of a will (notice to all Philippines; and
interested parties), the SC
(c) Is in the opinion of the
disallowed the will previously
court unfit to execute the
probated abroad.
duties of the trust by reason of
de Leon: But it has been ruled that drunkenness, improvidence, or
failure to notify is merely a want of understanding or
procedural error which does not integrity, or by reason of
affect the jurisdiction of the court. conviction of an offense
It is publication which confers involving moral turpitude.
probate jurisdiction, failure of
which is fatal to the probate. Disqualifications of an
executor/administrator
Leon & Ghezzie v. Manufacturers
Life Ins. Co., 90 Phil. 459 (1951) .1 minority
Administration extends only to the .2 non-resident
assets of a decedent found within
.3 drunkenness
the state or country where it was
granted, so that an administrator .4 improvidence
appointed in one state or country .5 want of understanding
has no power over property in
another state or country. .6 want of integrity
Bautista: What is the difference .7 conviction of an offense
between a domiciliary and involving moral turpitude.
anciliary administrator? Sec. 2. Executor of executor
8. Letters not to administer estate. The
executor of an executor shall
Testamentary and of not, as such, administer the
Administration, estate of the first testator.

Remedial Law Reviewer Mark de Leon, JD 2001


32

Sec. 3. Married women may (a) To the surviving husband


serve. A married woman may or wife, as the case may be, or
serve as executrix or next of kin, or both, in the
administratrix, and the discretion of the court, or to
marriage of a single woman such person as such surviving
shall not affect her authority so husband or wife, or next of kin,
to serve under a previous requests to have appointed, if
appointment. competent and willing to serve;
[PRIORITY OF LETTERS OF
Sec. 4. Letters testamentary
ADMIN]
issued when will allowed. When
a will has been proved and (b) If such surviving
allowed, the court shall issue husband or wife, as the case
letters testamentary thereon to may be, or next of kin, or the
the person named as executor person selected by them, be
therein, if he is competent, incompetent or unwilling, or if
accepts the trust, and gives the husband or widow, or next
bond as required by these of kin, neglects for thirty (30)
rules. days after the death of the
person to apply for
Sec. 5. Where some
administration or to request
coexecutors disqualified others
that administration be granted
may act. When all of the
to some other person, it may be
executors named in a will can
granted to one or more of the
not act because of
principal creditors, if
incompetency, refusal to accept
competent and willing to serve;
the trust, or failure to give
bond, on the part of one or (c) If there is no such
more of them, letters creditor competent and willing
testamentary may issue to such to serve, it may be granted to
of them as are competent, such other person as the court
accept and give bond, and they may select.
may perform the duties and Priority in selecting an
discharge the trust required by administrator
the will.
.1 surviving spouse, or next of kin,
Sec. 6. When and to whom or both, or person as such
letters of administration surviving spouse, or next of kin,
granted. If no executor is requests
named in the will, or the
executor or executors are .2 one or more of the principal
incompetent, refuse the trust, creditors – if such surviving
or fail to give bond, or a person spouse, or next of kin, or the
dies intestate, person selected, be
administration shall be incompetent or unwilling, or if
they neglect for 30 days after
granted: the death of the decedent to

Remedial Law Reviewer Mark de Leon, JD 2001


33

apply for administration or to Facts: Decedent’s child from a 1st


request that administration be marriage was appointed
granted to some other person, it administrator. 2nd wife and widow
may be granted to, if competent opposed on the ground that she
and willing to serve; has preference.
.3 such other person as the court Held: Preference for the widow
may select. fails in the existence of another
person with more interest. The
b. Cases presumed interest of the widow is
Ozaeta v. Pecson, 93 Phil. 416 based on the assumption that she
(1953) Pending appeal of a has a share in the conjugal
decision admitting the will to partnership. In this case, the
probate, the executor named in the decedent acquired all of his
will should be appointed special property during his 1st marriage
administrator. The order of and none during the 2nd. Therefore,
preference for choosing a Special a child from the 1st marriage will
Administrator is same as that of a have more interest in the estate
regular administrator. It is also not than the widow. The child should
mandatory. therefore be appointed
administrator.
Ngo The Hua v. Chung Kiat Hua, 9
SCRA 113 (1963) If there is issue Gabriel v. CA, 212 SCRA 413
as to validity of marriage or (1992) Mere failure of the
filiation, there should be a surviving spouse or next of kin to
provisional determination of apply for letters of administration
relationship between the deceased within 30 days after the decedent’s
and parties claiming the right to death is not sufficient ground to
be appointed an administrator negate his preference in the
before an administrator is actually selection of administrator. An
appointed. admininstrator may be removed
only for just cause. Mere
Torres v. Javier, 34 Phil. 382 (1916)
opportunity for mischief is not
Where there is a dispute as to who
ground for removal of an
between 2 people is the surviving
administrator. The appointment of
spouse, the court is authorized to
co-administrators has been upheld
appoint a disinterested 3rd person
for various reasons, viz: (1) to have
as administrator.
the benefit of their judgment and
Torres v. Sicat, 93 Phil. 155 (1953) perhaps at all times to have
The order of preference is not different interests represented;
mandatory. However, mere (2) where justice and equity
requiring proof of credit before demand that opposing parties or
paying it is not enough reason to factions be represented in the
disregard the order of preference. management of the estate of the
De Guzman v. Limcolioc, 67 Phil. deceased; (3) where the estate is
404 (1939) large or, from any cause, an
intricate and perplexing one to

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34

settle; (4) to have all interested letters of administration with


persons satisfied and the the will annexed.
representatives to work in
Sec. 2. Contents of petition
harmony for the best interests of
for letters of administration. A
the estate; and (5) when a person
petition for letters of
entitled to the administration of an
administration must be filed by
estate desires to have another
an interested person and must
competent person associated with
show, so far as known to the
him in the office.
petitioner:
9. Opposing Issuance (a) The jurisdictional facts;
of Letters
(b) The names, ages, and
Testamentary. residences of the heirs, and the
Petition and Contest names and residences of the
for Letters of creditors, of the decedent
Administration (c) The probable value and
[NOTE: if there is character of the property of the
delay in the estate;
application of an (d) The name of the person
administrator or if for whom letters of
the executor or administration are prayed.
administrator But no defect on the petition
claims against the shall render void the issuance
estate, the court of letters of administration.
must appoint a Sec. 3. Court to set time for
special admin] hearing. Notice thereof. When
a petition for letters of
a. Rule 79 administration is filed in the
Sec. 1. Opposition to court having jurisdiction, such
issuance of letters court shall fix a time and place
testamentary. Simultaneous for hearing the petition, and
petition for administration. Any shall cause notice thereof to be
person interested in a will may given to the known heirs and
state in writing the grounds creditors of the decedent, and
why letters testamentary to any other persons believed
should not issue to the persons to have an interest in the
named therein executors, or estate, in the manner provided
any of them, and the court, in section 3 and 4 of Rule 76.
after hearing upon notice, shall Sec. 4. Opposition to
pass upon the sufficiency of petition for administration. Any
such grounds. A petition may, interested person may, by filing
at the same time, be filed for a written opposition, contest
the petition on the ground of

Remedial Law Reviewer Mark de Leon, JD 2001


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the incompetency of the person estate. The special administrator


for whom letters are prayed should be an interested party.
therein, or on the ground of the Filipinas Shell Petroleum
contestant's own right to the Corporation v. Dumlao, 206 SCRA
administration, and may pray 40 (1992) Interest in the estate of
that letters issue to himself, or a person who initiates probate
to any competent person or proceedings is not a jurisdictional
persons named in the fact. It is a ground for a motion to
opposition. [insanity, imbecility, dismiss not on the ground of lack
drunkenness, minority.] of jurisdiction, but lack of legal
Sec. 5. Hearing and order capacity to institute the
for letters to issue. At the proceedings. Furthermore,
hearing of the petition, it must objection to the petition for letters
first be shown that notice has of administration on that ground
been given as hereinabove may be barred by estoppel or
required, and thereafter the waiver, e.g. seeking favorable
court shall hear the proofs of rulings from the probate court.
the parties in support of their
respective allegations, and if
satisfied that the decedent left
no will, or that there is no
competent and willing
executor, it shall order the
issuance of letters of
administration to the party best
entitled thereto.
Sec. 6. When letters of
administration granted to any 10. Rule 80: Special
applicant. Letters of Administrator
administration may be granted
Regular Special
to any qualified applicant,
Administrator Administrator
though it appears that there
are other competent persons the
having better right to the prescriptive
administration, if such persons period to pay
fail to appear when notified and debts does
claim the issuance of letters to not run until a
themselves. regular
(general)
b. Case administrator
Duran v. Duran, 20 SCRA 379 is appointed.
(1967) An oppositor to issuance of The powers to
letters of administration should sell are not
have an interest in the intestate limited to

Remedial Law Reviewer Mark de Leon, JD 2001


36

perishable cause” which would warrant


property only. appointment of a general
admininstrator includes delay
may be sued
caused by an opposition to the
by creditors.
probate on the ground that the
properties of the estate were
allegedly donated to the oppositor.
a. Circumstances Other examples of delay are
Warranting
.1 Contest to the will is pending
Appointment of
Special .2 Appeal regarding the removal
of an administrator/executor is
Administrator
pending
1) Rule 80 Sec. 1 .3 Parties can’t agree as to
Sec. 1. Appointment of administrator
special administrator. When .4 General administration can’t be
there is delay in granting granted for any cause
letters testamentary or of
administration by any cause The order appointing a Regular
including an appeal from the Administrator is appealable.
allowance or disallowance of a The order appointing a Special
will, the court may appoint a Administrator is a mere
special administrator to take interlocutory order; therefore,
possession and charge of the it is not appealable. However, it
estate of the deceased until the is a proper subject for a special
questions causing the delay are civil action for certiorari.
decided and executors or Relucio v. San Jose, 91 Phil. 365
administrators appointed. (1952) Where the appointment of a
Grounds for appointing a special regular administrator is appealed,
administrator a special administrator should be
appointed. Where an order
.1 delay in granting letters removing an administrator
testamentary or of appealed, the administrator
administration by any cause remains pending appeal, unless
including an appeal from the the court appoints a special
allowance or disallowance of a administrator or orders execution
will pending appeal.
.2 regular administrator has Alcasid v. Samson, 102 Phil. 735
claims against the estate (Rule (1957) Pending the appeal of an
86, Sec. 8) order for removal of a special
2) Cases administrator and appointment of
a regular administrator, another
De Guzman v. Guadiz, 96 5CRA special administrator should be
938 (1980) Delay in granting appointed. [LOL]
letters testamentary for “any

Remedial Law Reviewer Mark de Leon, JD 2001


37

de Leon: Ozaeta ruled that Garcia Fule v. CA, 74 SCRA 189


pending appeal of an order (1976) The preference in
allowing probate (not the order appointing regular administrators
appointing regular administrator), is the same as appointing special
the executor or regular administrators. The surviving
administrator should be appointed spouse is still preferred.
special administrator. In Relucio Pijuan v. Vda. de Gurrea, 18 SCRA
and Alcasid, if the pending appeal 898 (1966) The preference
is the choice of the adminstrator, a accorded to the surviving spouse
different special administrator operates only if there is not
should be appointed. executor named in the will who is
De Guzman v. Angeles, 162 SCRA willing and qualified. Furthermore,
347 (1988) A hearing and notice of the preference applies only to his
such hearing for appointment of a appointment as regular
special administrator is required. administrator. The order in
appointing a special
de Leon:Notice is always admininstrator lies within the
required to confer probate discretion of te probate court and
jurisdiction. To confer is not appealable.
jurisdiction over the Corona v. CA, 116 SCRA 316
probate proceedings the (1982) The purpose that the side of
form of notice is the decedent and that of the
publication. To confer surviving spouse be represented in
jurisdiction over matters within the management of the estate is
the probate proceedings (e.g. sufficient ground to appoint
appointment of a special another special administrator.
adminstrator) individual notice to Ozaeta v. Pecson, 93 Phil. 416
the parties is required. (1953) The person named executor
b. Who, and How in the will should be appointed as
special administrator pending an
Many, may be appeal of the probate court’s order
Appointed Special or judgment admitting a will to
Administrator probate and appointing a judicial
Circumstances which warrant the administrator.
appointment of more than 1 Matias v. Gonzales, 101 Phil. 852
administrator (1957) The court has the power to
.1 the properties of the decedent appoint multiple special
are in different places administrators for the whole of the
estate.
.2 there is more than 1 faction
among the heirs Roxas v. Pecson, 82 Phil. 407
(1948) The court can not appoint
.3 there is more than 1 kind of one special administrator for a set
property (i.e., capital and of properties, and another special
conjugal)

Remedial Law Reviewer Mark de Leon, JD 2001


38

administrator for another set of 2) Cases


properties.
Anderson v. Perkins, 1 SCRA 387
Bautista: The order of preference (1961) The power of the special
is mandatory for the appointment administrator to sell is not limited
of the regular administrator, but is to perishable properties only. He
merely a guideline in the can also sell “other property as the
appointment of a special court orders sold.”
administrator. Although the court
has the discretion to appoint the Liwanag v. Reyes, 12 SCRA 43
special administrator, such (1964) A special administrator may
discretion should be exercised be made a defendant just like a
within reasonable limits. regular administrator.

de Leon: But in Torres v. Sicat, 93 d. Removal of


Phil. 155 (1953), the SC ruled that Special
the order of preference for Administrator
appointing regular administrator is [WHEN THERE IS
not mandatory.
letters issued or
c. Powers and negligence of
Liabilities of spec admin =
Special remove]
Administrator 1) Rule 80 Sec. 3
1) Rule 80 Sec. 2 Sec. 3. When powers of
Sec. 2. Powers and duties of special administrator cease.
special administrator. Such Transfer of effects. Pending
special administrator shall take suits. When letters
possession and charge of testamentary or of
goods, chattels, rights, credits, administration are granted on
and estate of the deceased and the estate of the deceased, the
preserve the same for the powers of the special
executor or administrator administrator shall cease, and
afterwards appointed, and for he shall forthwith deliver to the
that purpose may commence executor or administrator the
and maintain suits as goods, chattels, money, and
administrator. He may sell only estate of the deceased in his
such perishable and other hands. The executor or
property as the court orders administrator may prosecute to
sold. A special administrator final judgment suits
shall not be liable to pay any commenced by such special
debts of the deceased unless so administrator.
ordered by the court.
2) Cases
Alcasid v. Samson, 102 Phil. 735
(1957) Pending the appeal of an

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39

order for removal of a special person for him, and from the
administrator and appointment of proceeds to pay and discharge
a regular administrator, another all debts, legacies, and charges
special administrator should be on the same, or such dividends
appointed. thereon as shall be decreed by
Junquera v. Borromeo, 99 Phil. 276 the court;
(1956) Failure to file an inventory (c) To render a true and just
of the estate within a reasonable account of his administration
period is a ground for removal of a to the court within one (1) year,
special administrator. and at any other time when
required by the court; [full
11. Bonds of
report of accounts]
Executors and
Administrators (d) To perform all orders of
the court by him to be
a. Rule 81 performed.
Sec. 1. Bond to be given Conditions of the administrator’s
before issuance of letters. bond / duties of an administrator
Amount. Conditions. Before an .1 to make and return to the court,
executor or administrator within 3 months, a true and
enters upon the execution of complete inventory of the estate
his trust, and letters which shall come to his
testamentary or of possession or knowledge or to
administration issue, he shall the possession of any other
give a bond, in such sum as the person for him;
court directs, conditioned as
follows: .2 to administer the estate, and
from the proceeds to pay and
(a) To make and return to discharge all debts, legacies,
the court, within three (3) and charges, or such dividends
months, a true and complete thereon as shall be decreed by
inventory of all goods, chattels, the court;
rights, credits, and estate of
the deceased which shall come .3 to render a true and just
to his possession or knowledge account of his administration to
or to the possession of any the court within 1 year, and at
other person for him; any other time when required
by the court;
(b) To administer according
to these rules, and, if an .4 to perform all orders of the
executor, according to the will court by him to be performed.
of the testator, all goods, Sec. 2. Bond of executor
chattels, rights, credits, and where directed in will. When
estate which shall at any time further bond required. If the
come to his possession or to testator in his will directs that
the possession of any other the executor serve without

Remedial Law Reviewer Mark de Leon, JD 2001


40

bond, or with only his the goods, chattels, rights,


individual bond, he may be credits, and estate of the
allowed by the court to give deceased which come to his
bond in such sum and with possession or knowledge, and
such surety as the court that he will truly account for
approves conditioned only to such as are received by him
pay the debts of the testator; when required by the court,
but the court may require of and will deliver the same to the
the executor a further bond in person appointed executor or
case a change in his administrator, or to such other
circumstances, or for other person as may be authorized to
sufficient cause, with the receive them.
conditions named in the last
preceding section.
Conditions of special
When bond may be conditioned administrator’s bond
only to pay the debts of the
testator – testator directs in his .1 he will make and return a true
will that the executor serve inventory of the estate which
come to his possession or
.1 without bond, or knowledge, and
.2 with only his individual bond .2 he will truly account for such as
Note that the testator’s wishes is are received by him when
not mandatory. The court may required by the court, and
require of the executor a further .3 will deliver the estate to the
bond in case a change in his person appointed executor or
circumstances, or for other administrator, or to such other
sufficient cause, with the other person as may be authorized to
conditions of an administrator’s receive them.
bond.
de Leon: Note that the special
Sec. 3. Bonds of joint administrator’s bond is not bound
executors and administrators. to inventory property of the estate
When two or more persons are “in the possession of any other
appointed executors or person for him” unlike a regular
administrators the court may administrator’s bond.
take a separate bond from
each, or a joint bond from all. b. Cases
Sec. 4. Bond of special Cosme de Mendoza v. Pacheco, 64
administrator. A special Phil. 134 (1937) The probate court
administrator before entering has to power to execute on the
upon the duties of his trust administrator’s bond. The
shall give a bond, in such sum administrator’s bond may held
as the court directs, liable in the proceedings for the
conditioned that he will make accounting of the administrator. A
and return a true inventory of separate action need not be filed.

Remedial Law Reviewer Mark de Leon, JD 2001


41

Warner, Barnes & Co., Ltd. v. indemnification agreement ceased


Luzon Surety Co., Inc., 95 Phil. to be effective from the failure to
924 (1954) Though Mendoza v. pay the renewal fees.
Pacheco ruled that the probate Held: The surety is liable under
court has jurisdiction to execute on the administrator’s bond for as
the bond, it did not rule that a long as the administrator has
claim on an administrator’s bond duties to do as such executor or
may not be litigated in a separate administrator. Hence, the
action. Although the probate court administrator is still duty bound to
has jurisdiction over the forfeiture respect the indemnity agreements
or enforcement of an entered into by him in
administrator's bond, the same consideration of the suretyship.
matter may be litigated in an
separate ordinary civil action. The executor still had duties to
Although an administrator's bond perform even after the approval of
is executed in favor of the Republic the project of partition. There were
of the Philippines, it is expressly still debts and expenses to be paid
for the benefit of the heirs, after then. An estate may be
legatees and creditors. A creditor partitioned even before the
may directly in his name enforce termination of the administration
said bond in so far as he is proceedings. Partition does not
concerned. Where there are no terminate the administration
proceedings for the administration proceedings.
of the estate of the deceased The sureties of an administration
administrator, the creditor may bond are liable only for matters
enforce the administrator’s bond occurring during the term covered
against the surety which bound by the bond. The term of a bond
itself jointly and severally in the does not usually expire until the
case where the bond was filed. administration has been closed
Luzon Surety Co., Inc. v. Quebrar, and terminated. As long as the
127 SCRA 295 (1984) probate court retains jurisdiction
of the estate, the bond
Facts: Administrator’s bond was contemplates a continuing liability
renewable every year with notwithstanding the non-renewal
indemnity agreement for all of the bond.
expenses. Renewal fees and
indemnifications were unpaid since Payment of the premiums and
the 2nd year. After distribution and documentary stamps are not
on motion, court cancelled the conditions precedent for the
bonds. Surety sues for the renewal effectivity of the bonds. There is no
fees and indemnifications from the provision or condition in the bond
2nd year until the bonds were to the effect that it will terminate
cancelled. Executor claims that the at the end of the 1st year if the
administrator’s bond ceased to be premium for continuation
effective from the approval of the thereafter is not paid. There is no
project of partition and the clause by which its obligation is

Remedial Law Reviewer Mark de Leon, JD 2001


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avoided or even suspended by the Sec. 2. Court may remove or


failure of the obligee to pay an accept resignation of executor
annual premium. or administrator. Proceedings
Bottomline: Subsequent default of upon death, resignation, or
premium does not exonerate the removal. If an executor or
surety. Nevertheless, the administrator neglects to
administrator is still liable for the render his account and settle
premiums. Neither does expiration the estate according to law, or
of the term of the bond exonerate to perform an order or
the surety. The Rules are deemed judgment of the court, or a
written into the bond contract, i.e. duty expressly provided by
for the duration of the these rules, or absconds, or
adminstration proceedings. becomes insane, or otherwise
incapable or unsuitable to
12. Revocation of discharge the trust, the court
Administration, may remove him, or, in its
Death, Resignation, discretion, may permit him to
and Removal of resign. When an executor or
administrator dies, resigns, or
Executors and is removed the remaining
Administrators executor or administrator may
a. Rule 82 administer the trust alone,
unless the court grants letters
Sec. 1. Administration to someone to act with him. If
revoked if will discovered. there is no remaining executor
Proceedings thereupon. If after or administrator,
letters of administration have administration may be granted
been granted on the estate of a to any suitable person.
decedent as if he had died
intestate, his will is proved and When administration revoked
allowed by the court, the letters .1 (when administrator was
of administration shall be appointed in intestate
revoked and all powers proceedings) a will is
thereunder cease, and the subsequently probated
administrator shall forthwith
.2 neglects to render his account
surrender the letters to the
and settle the estate
court, and render his account
within such time as the court .3 absconds, or becomes insane,
directs. Proceedings for the or otherwise incapable or
issuance of letters unsuitable to discharge the
testamentary or of trust
administration under the will Sec. 3. Acts before
shall be as hereinbefore revocation, resignation, or
provided. removal to be valid. The lawful
acts an executor or

Remedial Law Reviewer Mark de Leon, JD 2001


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administrator before the in the name of the decedent. He


revocation of his letters secures a postponement of the
testamentary or of hearing of a motion to remove him.
administration, or before his Before the postponed hearing
resignation or removal, shall takes place, he withdraws money
have the like validity as if there from the decedent’s joint account
had been no such revocation, with him.
resignation, or removal. Held: The withdrawal, the failure
Sec. 4. Powers of new to account for the proceeds, and
executor or administrator. claim over the shares are enough
Renewal of license to sell real ground to remove the executor.
estate. The person to whom Mendiola v. CA, 190 SCRA 421
letters testamentary or of (1990) Failure to pay estate tax,
administration are granted failure to render an accounting of
after the revocation of former the estate, and causing the estate
letters, or the death, to be subject to needless litigation
resignation, or removal of a is sufficient ground to remove an
former executor or executor. d
administrator, shall have the
like powers to collect and settle Gonzales v. Aguinaldo, 190 SCRA
the estate not administered 112 (1990) Mere temporary
that the former executor or absence and/or disagreements
administrator had, and may with co-administrators, without
prosecute or defend actions misconduct, is not sufficient
commenced by or against the ground for removal of a co-
former executor or administrator. The removal of an
administrator, and have administrator does not lie on the
execution on judgments whims, caprices and dictates of the
recovered in the name of such heirs or beneficiaries of the estate.
former execution or 13. Inventory and
administrator. An authority Appraisal. Provision
granted by the court to the
former executor or
for Support of
administrator for the sale or Family [this was
mortgage of real estate may be summarized above]
renewed in favor of such person [not the same with
without further notice or accounting 1 year]
hearing. [Basta questions of
b. Case ownership sep
Borroeo v. Borromeo, 97 Phil. 549 action dapat!]
(1955) a. Rule 83
Facts: Executor fails to account Sec. 1. Inventory and
for proceeds of the estate and appraisal to be returned within
claims as his own shares that are

Remedial Law Reviewer Mark de Leon, JD 2001


44

three months. Within three (3) Garcia v. Garcia, 67 Phil. 353


months after his appointment (1939) For the purpose of
every executor or administrator determining whether a certain
shall return to the court a true property should or should not be
inventory and appraisal of all included in the inventory, the
the real and personal estate of probate court may pass upon the
the deceased which has come title thereto, but such
into his possession or determination is not conclusive
knowledge. In the and is subject to the final decision
appraisement of such estate, in a separate action to be
the court may order one or instituted between the parties.
more of the inheritance tax Cuizon v. Ramolete, 129 SCRA 495
appraisers to give his or their (1984) When the property in
assistance. question was in the possession of
Administrator should return an 3rd parties and more important,
inventory and appraisal of the covered by a TCT issued in the
estate within 3 months from his name of such 3rd parties, the court
appointment. should have denied the motion of
the administrator and excluded the
Sec. 2. Certain articles not
property in question from the
to be inventoried. The wearing
inventory of the property of the
apparel of the surviving
estate. It had no authority to
husband or wife and minor
deprive such 3rd persons of their
children, the marriage bed and
possession and ownership of the
bedding, and such provisions
property.
and other articles as will
necessarily be consumed in the Guinguing v. Abuton, 48 Phil. 144
subsistence of the family of the (1925) Where the claims of
deceased, under the direction ownership is between the
of the court, shall not be adminstrator and 3rd persons, such
considered as assets, nor should be settled in a separate
administered as such, and shall proceeding. Where the dispute is
not be included in the between the administrator and an
inventory. heir, the issue may be resolved in
the same proceedings. The
Sec. 3. Allowance to widow inclusion of a property in the
and family. The widow and inventory does not deprive the
minor or incapacitated children occupant of possession.
of a deceased person, during
the settlement of the estate, Bottomline: If the claimiant of the
shall receive therefrom, under party is an heir and the parties
the direction of the court, such agree, the probate court can
allowance as are provided by determine the issue of ownership
law. conclusively between them.
However, if the claimant is a
b. Cases stranger to the probate

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proceeding, the court can resolve Estate of Hilario Ruiz v. CA, 252
the issue of ownership only SCRA 540 (1996) Support pending
provisionally. (p. 83 Moran) estate proceedings should not be
limited to minor or incapacitated
Sebial v. Sebial, 64 SCRA 385
children of the decedent, but
(1975) The 3-month period to file
should be given to all children
an inventory is not mandatory.
entitled to support (e.g. education)
After the filing of a petition for
even those of majority age.
the issuance of letters of
However, substantive law (Art. 188
administration and the
NCC, now Art. 133 FC) limits such
publication of the notice of
support to only the surviving
hearing, the probate court
spouse and children. It does not
acquires jurisdiction over a
extend to grandchildren.
decedent's estate and retains
that jurisdiction until the cf Art. 133 FC
proceeding is closed. The fact Art. 133. From the common mass
that an inventory was filed after of property support shall be given
the 3-month period would not to the surviving spouse and to the
deprive the probate court of children during the liquidation of
the inventoried property and until
jurisdiction to approve it. However, what belongs to them is delivered;
an administrator's unexplained but from this shall be deducted
delay in filing the inventory may be that amount received for support
a ground for his removal which exceeds the fruits or rents
pertaining to them. (188a)
Pio Barretto Realty Development,
Inc. v. CA, 131 SCRA 606 (1984)
Questions of title or ownership, 14. General Powers
which result to inclusion in or and Duties of
exclusion from the inventory can
only be settled conclusively in a Executors and
separate action. Administrators
Santero v. CFI of Cavite, 153 SCRA
[order of court req
728 (1987) While the rules of court for selling,
limit allowances to the widow and continuance of
minor or incapacitated children, business, mortgage,
the Civil Code (now Family Code) Loan =
gives the surviving spouse and his unenforceable or
children support without
distinction. Hence, the fact that
void contract]
the children are of majority age, a. Rule 84
gainfully employed, or already
married is irrelevant in Sec. 1. Executor or
determining entitlement to support administrator to have access to
while the estate proceedings are partnership books and
being settled. property. How right enforced.
The executor or administrator
of the estate of a deceased

Remedial Law Reviewer Mark de Leon, JD 2001


46

partner shall at all times have b. Cases


access to, and may examine and
take copies of, books and Malahacan v. Ignacio, 19 Phil. 434
(1911) The executor or
papers relating to the
administrator has the right to take
partnership business, and may
possession of the estate so long as
examine and make invoices of
it is necessary for the payment of
the property belonging to such
debts and expenses of
partnership; and the surviving
administration. Where there are no
partner or partners, on request,
debts to be paid, there is no reason
shall exhibit to him all such
for the executor’ or administrator’
books, papers, and property in
taking possession of the estate
their hands or control. On the
which should pass to the heir. If
written application of such
other heirs have not received their
executor or administrator, the
participation, their remedy is an
court having jurisdiction of the
action for partition.
estate may order any such
surviving partner or partners to San Diego v. Nombre, 11 SCRA
freely permit the exercise of 165 (1964) Administrator has the
the rights, and to exhibit the power of administration over the
books, papers, and property, as estate. He may therefore enter
in this section provided, and into acts of administration like
may punish any partner failing leasing estate property without
to do so for contempt. securing any permission from the
probate court. Where the lease has
Sec. 2. Executor or formally been entered into, the
administrator to keep buildings court can not, in the same
in repair. An executor or proceeding, annul and lease.
administrator shall maintain in
tenantable repair the houses While the duties of a judicial
and other structures and fences administrator and an agent are in
belonging to the estate, and some respects identical, the
deliver the same in such repair provision on agency which limits
to the heirs or devisees when the activity of the agent to lease
directed so to do by the court. real property for more than 1 year
without special power from the
Sec. 3. Executor or principal does not apply to judicial
administrator to retain whole administrators who may lease
estate to pay debts, and to properties without any special
administer estate not willed. An authority from the court. A judicial
executor or administrator shall admininstrator is appointed by the
have the right to the possession court and is the representative not
and management of the real as only of the court, but also the heirs
well as the personal estate of and creditors of the estate. A
the deceased so long as it is judicial administrator before
necessary for the payment of entering into his duties, is required
the debts and the expenses of to file a bond. These circumstances
administration.

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47

is not true in cases of agency. The for the benefit of the estate. In
agent is only answerable to his case he does, he alone will be
principal. The protection which the responsible with his own property
law gives the principal, in limiting for the debts and obligations he
the powers and rights of an agent, has contracted. The fact that the
stems from the fact that control by money was used for the benefit
the principal can only be through and improvement of the estate
agreements, whereas the acts of a cannot affect a creditor's rights,
judicial administrator are subject nor is he obliged to direct his
to specific provisions of law and action against the estate, but it lies
orders of the appointing court. directly against the administrator
or executor who is alone
Jaroda v. Cusi, 28 SCRA 1008
personally responsible for the
(1969) An administrator can not
payment of the debt he contracted.
appoint himself as attorney-in-fact
to sell property of the estate. An 15. Accountability
order of the probate court and Compensation
approving such appointment is
of Executors and
void.
Administrators
Wilson v. Rear, 55 Phil. 44 (1930)
An administrator, without an order a. Rule 85
of the court, has no authority to Sec. 1. Executor or
continue the business in which the administrator chargeable with
deceased was engaged at the time all estate and income. Except
of his death. If he does so with the as otherwise expressly provided
funds of the estate, he is in the following sections, every
chargeable with all the losses executor or administrator is
incurred thereby without allowing chargeable in his account with
him to receive the benefit of any the whole of the estate of the
profits that he may make. deceased which has come into
Executors and administrators who his possession, at the value of
do not actively labor to close the the appraisement contained in
estate within 12 months can be the inventory; with all the
deprived of compensation. Harsher interest, profit, and income of
measures may be his removal or such estate; and with the
his liability for damage. The law proceeds of so much of the
does not impose upon the executor estate as is sold by him, at the
or administrator a high degree of price at which it was sold.
care, but it does impose upon him
ordinary and usual care, for the Sec. 2. Not to profit by
want of which he is personally increase or lose by decrease in
liable. value. No executor or
administrator shall profit by
Fabie v. Yulo, 24 Phil. 240 (1913)
the increase, or suffer loss by
The executor or administrator can
the decrease or destruction,
not borrow money without
without his fault, of any part of
authority of the court, even if it is

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48

the estate. He must account for he has in his hands, and the
the excess when he sells any value of the estate is thereby
part of the estate for more than lessened or unnecessary cost or
appraisement, and if any is sold interest accrues, or the persons
for less than the appraisement, interested suffer loss, the same
he is not responsible for the shall be deemed waste and the
loss, if the sale has been justly damage sustained may be
made. If he settles any claim charged and allowed against
against the estate for less than him in his account, and he shall
its nominal value, he is entitled be liable therefor on his bond.
to charge in his account only Sec. 6. When allowed money
the amount he actually paid on paid as costs. The amount paid
the settlement. by an executor or administrator
Sec. 3. When not for costs awarded against him
accountable for debts due shall be allowed in his
estate. No executor or administration account, unless
administrator shall be it appears that the action or
accountable for debts due the proceeding in which the costs
deceased which remain are taxed was prosecuted or
uncollected without his fault. resisted without just cause, and
not in good faith.
Sec. 4. Accountable for
income from realty used by Sec. 7. What expenses and
him. If the executor or fees allowed executor or
administrator uses or occupies administrator. Not to charge
any part of the real estate for services as attorney.
himself, he shall account for it Compensation provided by will
as may be agreed upon between controls unless renounced. An
him and the parties interested, executor or administrator shall
or adjusted by the court with be allowed the necessary
their assent; and if the parties expenses in the care,
do not agree upon the sum to management, and settlement of
be allowed, the same may be the estate, and for his services,
ascertained by the court, whose four pesos per day for the time
determination in this respect actually and necessarily
shall be final. employed, or a commission
upon the value of so much of
Sec. 5. Accountable if he
the estate as comes into his
neglects or delays to raise or
possession and is finally
pay money. When an executor
disposed of by him in the
or administrator neglects or
payment of debts, expenses,
unreasonably delays to raise
legacies, or distributive shares,
money, by collecting the debts
or by delivery to heirs or
or selling the real or personal
devisees, of two per centum of
estate of the deceased, or
the first five thousand pesos of
neglects to pay over the money
such value, one per centum of

Remedial Law Reviewer Mark de Leon, JD 2001


49

so much of such value as compensation provided by the


exceeds five thousand pesos will.
and does not exceed thirty Conditions when greater
thousand pesos, one-half per compensation may be given to the
centum of so much of such adminstrator
value as exceeds thirty
thousand pesos and does not .1 estate is large
exceed one hundred thousand .2 settlement has been attended
pesos and one-quarter per with great difficulty, and
centum of so much of such
value as exceed one hundred .3 settlement has required a high
thousand pesos. But in any degree or capacity on the part
special case, where the estate of the executor or administrator
is large, and the settlement has GR: Executor’s compensation
been attended with great provided in the will shall be a full
difficulty, and has required a satisfaction for his services.
high degree or capacity on the
Exception: Executor files a written
part of the executor or
renunciation of all claim to the
administrator, a greater sum
compensation provided in the will.
may be allowed. If objection to
the fees allowed be taken, the Sec. 8. When executor or
allowance may be re-examined administrator to render
on appeal. account. Every executor or
administrator shall render an
If there are two or more
account of his administration
executors or administrators,
the compensation shall be within one (1) year from the
apportioned among them by the time of receiving letters
court according to the services testamentary or of
actually rendered by them administration, unless the
respectively. court otherwise directs because
of extensions of time for
When the executor or presenting claims against, or
administrator is an attorney, he paying the debts of, the estate,
shall not charge against the or for disposing of the estate;
estate any professional fees for and he shall render such
legal services rendered by him. further accounts as the court
When the deceased by will may require until the estate is
makes some other provision for wholly settled.
the compensation of his Sec. 9. Examination on oath
executor, that provision shall with respect to account. The
be a full satisfaction for his court may examine the
services unless by a written executor or administrator upon
instrument filed in the court he oath with respect to every
renounces all claim to the matter relating to any account
rendered by him, and shall so

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50

examine him as to the accounts. This is more so when


correctness of his account according to the oppositors, the
before the same is allowed, administrator has committed in his
except when no objection is accounts a shortage which
made to the allowance of the certainly can not just be brushed
account and its correctness is aside by a mere technicality.
satisfactorily established by Rodriguez v. Silva, 90 Phil. 752
competent proof. The heirs, (1952) The amount of commission
legatees, distributees, and an executor or administrator may
creditors of the estate shall be allowed may be greater where
have the same privilege as the the estate is large, and the
executor or administrator of settlement has been attended with
being examined on oath of any great difficulty, and has required a
matter relating to an high degree of capacity on the part
administration. of the executor or administrator.
Sec. 10. Account to be The fact that the executor or
settled on notice. Before the administrator is a lawyer, or other
account of an executor or person especially qualified to deal
administrator is allowed, notice with intricate and difficult matters
shall be given to persons of law or business, is of itself
interested of time and place of insufficient ground for increasing
examining and allowing the the compensation except where
same; and such notice may be the executor-lawyer or
given personally to such administrator-lawyer was able to
persons interested or by stop what appeared to be an
advertisement in a newspaper improvident disbursement of a
or newspapers, or both, as the substantial amount without having
court directs. to employ outside legal help at an
additional expense to the estate.
Sec. 11. Surety on bond may Where an administrator is a
be party to accounting. Upon lawyer, his legal services while not
the settlement of the account compensable as such, is to be
of an executor or administrator, considered in the award of extra
a person liable as surety in compensation.
respect to such account may,
upon application, be admitted Albino v. Borromeo, 16 SCRA 247
as party to such accounting. (1966) The attorney who assists
the executor or administrator in
b. Cases the execution of his trust can not
Joson v. Joson, 2 SCRA 82 (1961) hold the estate directly liable for
Extrajudicial settlement and his fees, the liability for payment
partition of the estate is not a resting primarily on the executor
waiver of the objections of the or administrator. If the executor or
heirs to the accounts submitted by administrator has paid the fees, he
the adminstrator or a release of is entitled to reimbursement from
the latter’s obligation to prove his the estate. The payments made by

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51

the administrator should be than twelve (12) nor less


allowed upon notice. than six (6) months after
Phil. Trust Co. v. Luzon Surety Co., the date of the first publication
2 SCRA 122 (1961) Sureties (of the of the notice. However, at any
executor’s or administrator’s bond) time before an order of
are not entitled to notice but may distribution is entered, on
be allowed to intervene in the application of a creditor who
settlement of the account of the has failed to file his claim
executor or administrator if they within the time previously
ask for leave to do so in due time. limited, the court may, for
cause shown and on such terms
Lim Kalaw v. IAC, 213 SCRA 289
as are equitable, allow such
(1992) The rendering of an
claim to be filed within a time
accounting by an administrator of
his administration within one year not exceeding one (1) month.
from his appointment is Period which the court is allowed
mandatory. The only exception is to set for presentation of money
when the court otherwise directs claims: 6-12 months from 1st
because of extensions of time for publication.
presenting claims against, or
paying the debts of the estate.
Failure to do so is ground for Extension: Not exceeding 1 month
removal as administrator. if
16. Claims Against .1 before an order of distribution
is entered
Estate
.2 an application of a creditor who
a. Rule 86 has failed to file his claim within
Sec. 1. Notice to creditors to the period
be issued by court. Immediately .3 for cause shown
after granting letters
testamentary or of de Leon: What is the remedy if an
administration, the court shall order for distribution had already
issue a notice requiring all been entered?
persons having money claims Sec. 3. Publication of notice
against the decedent to file to creditors. Every executor or
them in the office of the clerk administrator shall,
of said court. immediately after the notice to
Sec. 2. Time within which creditors is issued, cause the
claims shall be filed. In the same to be published three (3)
notice provided in the weeks successively in a
preceding section, the court newspaper of general
shall state the time for the circulation in the province, and
filing of claims against the to be posted for the same
estate, which shall not be more period in four public places in
the province and in two public

Remedial Law Reviewer Mark de Leon, JD 2001


52

places in the municipality instead of presenting them


where the decedent last independently to the court as
resided. herein provided, and mutual
claims may be set off against
Sec. 4. Filing copy of printed
each other in such action; and
notice. Within ten (10) days
if final judgment is rendered in
after the notice has been
favor of the defendant, the
published and posted in
amount so determined shall be
accordance with the preceding
considered the true balance
section, the executor or
against the estate, as though
administrator shall file or cause
the claim had been presented
to be filed in the court a
directly before the court in the
printed copy of the notice
administration proceedings.
accompanied with an affidavit
Claims not yet due or
setting forth the dates of the
contingent, may be approved at
first and last publication
their present value. [if a
thereof and the name of the
claimaint claims against the
newspaper in which the same is
estate and it appears the
printed.
executor or administrator has
Sec. 5. Claims which must be discovered or knows that the
filed under the notice. If not claimant owes the decedent or
filed, barred; exceptions. All estate some debts, counter
claims for money against the claim maybe filed even outside
decedent, arising from statue of non-claims]
contract, express or implied,
Requirements for the statute of
whether the same be due, not
non-claims to apply
due, or contingent, all claims
for funeral expenses and .1 money claims (arising from
expenses for the last sickness contract whether due or not,
of the decedent, and judgment funeral expenses, expenses for
for money against the the last sickness of the
decedent, must be filed within decedent, money judgment)
the time limited in the notice; .2 property of the estate
otherwise they are barred inventoried
forever, except that they may
be set forth as counterclaims in .3 commissioner on claims
any action that the executor or regularly appointed
administrator may bring .4 publication of notice duly made
against the claimants. Where
an executor or administrator .5 no fraud in the proceedings.
commences an action, or Exception: Money claims
prosecutes an action already otherwise barred by the statute of
commenced by the deceased in non-claims may be set as a
his lifetime, the debtor may set counterclaim against the estate.
forth by answer the claims he
has against the decedent,

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53

When money claims need not be defendant, and if there is a


presented before the probate court judgment for a deficiency, after
.1 can be set-up as a counterclaim the sale of the mortgaged
in an action by the estate premises, or the property
pledged, in the foreclosure or
.2 already commenced at the time other proceeding to realize
of the decedent’s death (Rule 3, upon the security, he may claim
Sec. 20) his deficiency judgment in the
Claims not yet due or contingent, manner provided in the
may be approved at their present preceding section; or he may
value. rely upon his mortgage of other
security alone, and foreclose
Sec. 6. Solidary obligation of the same at any time within the
decedent. Where the obligation period of the statute of
of the decedent is solidary with limitations, and in that event
another debtor, the claim shall he shall not be admitted as a
be filed against the decedent as creditor, and shall receive no
if he were the only debtor, share in the distribution of the
without prejudice to the right other assets of the estate; but
of the estate to recover nothing herein contained shall
contribution form the other prohibit the executor or
debtor. In a joint obligation of administrator from redeeming
the decedent, the claim shall be the property mortgaged or
confined to the portion pledged, by paying the debt for
belonging to him. which it is held as security,
Note that this does not prevent the under the direction of the
creditor from claiming the whole court, if the court shall adjudge
debt against the surviving debtor. it to be for the best interest of
[Imperial Ins. Co. v. David, 133 the estate that such
SCRA 317 (1984)] redemption shall be made.
Sec. 7. Mortgage debt due Options of a mortgagee in case of
from estate. A creditor holding mortgagor’s death
a claim against the deceased .1 abandon the security and
secured by mortgage or other prosecute his claim in the
collateral security, may estate proceedings, and share
abandon the security and in the general distribution of
prosecute his claim in the the assets of the estate; or
manner provided in this rule,
and share in the general .2 foreclose the mortgage, and if
distribution of the assets of the there is a judgment for a
estate; or he may foreclose his deficiency, claim his deficiency
mortgage or realize upon his judgment in the estate
security, by action in court, proceedings; or
making the executor or .3 rely upon his mortgage of other
administrator a party security alone, and foreclose

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54

the same at any time within the therewith. On demand,


period of the statute of however, of the executor or
limitations, and in that event he administrator, or by order of
shall not be admitted as a the court or judge, the original
creditor, and shall receive no shall be exhibited, unless it be
share in the distribution of the lost or destroyed, in which case
other assets of the estate the claimant must accompany
Sec. 8. Claim of executor or his claim with affidavit or
administrator against an affidavits containing a copy or
estate. If the executor or particular description of the
administrator has a claim instrument and stating its loss
against the estate he or destruction. When the claim
represents, he shall give notice is due, it must be supported by
thereof, in writing, to the court, affidavit stating the amount
and the court shall appoint a justly due, that no payments
special administrator, who have been made thereon which
shall, in the adjustment of such are not credited, and that there
claim, have the same power and are no offsets to the same, to
be subject to the same liability the knowledge of the affiant. If
as the general administrator or the claim is not due, or is
executor in the settlement of contingent, when filed, it must
other claims. The court may also be supported by affidavit
order the executor or stating the particulars thereof.
administrator to pay to the When the affidavit is made by a
special administrator necessary person other than the claimant,
funds to defend such claim. he must set forth therein the
reason why it is not made by
This provides for the other ground the claimant. The claim once
for appointing a special filed shall be attached to the
administrator. record of the case in which the
Sec. 9. How to file a claim. letters testamentary or of
Contents thereof. Notice to administration were issued,
executor or administrator. A although the court, in its
claim may be filed by delivering discretion, and as a matter of
the same with the necessary convenience, may order all the
vouchers to the clerk of court claims to be collected in a
and by serving a copy thereof separate folder.
on the executor or Sec. 10. Answer of executor
administrator. If the claim be or administrator. Offsets.
founded on a bond, bill, note or Within fifteen (15) days after
any other instrument, the service of a copy of the claim
original need not be filed, but a on the executor or
copy thereof with all administrator, he shall file his
indorsements shall be attached answer admitting or denying
to the claim and filed the claim specifically, and

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55

setting forth the substance of Sec. 12. Trial of contested


the matters which are relied claim. Upon the filing of an
upon to support the admission answer to a claim, or upon the
or denial. If he has no expiration of the time for such
knowledge sufficient to enable filing, the clerk of court shall
him to admit or deny set the claim for trial with
specifically, he shall state such notice to both parties. The
want of knowledge. The court may refer the claim to a
executor or administrator in his commissioner.
answer shall allege in offset any Sec. 13. Judgment
claim which the decedent appealable. The judgment of
before death has against the the court approving or
claimant, and his failure to do disapproving a claim, shall be
so shall bar the claim forever. A filed with the record of the
copy of the answer shall be administration proceedings
served by the executor or with notice to both parties, and
administrator on the claimant. is appealable as in ordinary
The court in its discretion may cases. A judgment against the
extend the time for filing such executor or administrator shall
answer. be that he pay, in due course of
Note that failure of the executor or administration, the amount
administrator to raise even a ascertained to be due, and it
permissive counterclaim in his shall not create any lien upon
answer bars such counterclaim the property of the estate, or
forever. give to the judgment creditor
Sec. 11. Disposition of any priority of payment.
admitted claim. Any claim The remedy from a judgment
admitted entirely by the allowing a claim is appeal.
executor or administrator shall
Sec. 14. Costs. When the
immediately be submitted by
executor or administrator, in
the clerk to the court who may
his answer, admits and offers to
approve the same without
pay part of a claim, and the
hearing; but the court, in its
claimant refuses to accept the
discretion, before approving
amount offered in satisfaction
the claim, may order that
of his claim, if he fails to obtain
known heirs, legatees, or
a more favorable judgment, he
devisees be notified and heard.
cannot recover costs, but must
If upon hearing, an heir,
pay to the executor or
legatee, or devisee opposes the
administrator costs from the
claim, the court may, in its
time of the offer. Where an
discretion, allow him fifteen
action commenced against the
(15) days to file an answer to
deceased for money has been
the claim in the manner
discontinued and the claim
prescribed in the preceding
embraced therein presented as
section.

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56

in this rule provided, the recover property or an interest


prevailing party shall be therein, to enforce a lien on
allowed the costs of his action property, to recover damages for
up to the time of its injury to persons or property (now
discontinuance. Rule 87 Sec. 1).
b. Cases Aguas v. Llemos, 5 SCRA 959
(1962) An action for damages from
Afan v. De Guzman, 107 Phil. 839 tort is not a money claim but an
(1960) Negotiating with 1 of the action to recover damages for
heirs for payment is not a ground injury to property. Such damage
for extension of the period to file a suit survives defendant’s death
claim, more so if the claimant was and need not be separately filed in
aware that estate proceedings the estate proceedings. The
were underway. Requirements for remedy is to substituted the
an extension to be granted: 1) deceased with the administrator or
application, 2) show cause why it executor of his estate.
should be granted, 3) extension
not greater than 1 month, and 4) de Leon: Note that action for
order of distribution has not been money claims are now not abated
entered. by the death of the defendant
(Rule 3, Sec. 20).
Santos v. Manarang, 27 Phil. 209
(1914) Even a debt acknowledged E. Gaskell & Co. v. Tan Sit, 43 Phil.
and ordered paid in the will must 810 (1922) A claim that has been
be presented as a claim, otherwise discharged in bankruptcy
it will be barred by the statute of proceedings can not be recovered
nonclaims. in the estate proceedings.
Estate of Olave v. Reyes, 123 SCRA Imperial Ins. Co. v. David, 133
167 (1903) Where a claim against SCRA 317 (1984) If a solidary
a deceased arises from contract, it debtor dies, the creditor may sue
may be pursued only by filing the the surviving solidary debtor. He
same in the estate proceedings need not file his claim in the estate
within the period prescribed. proceedings, even if the solidary
Where the estate is subject of a debtors were married.
proceeding, administrator can not Bank of P.I. v. Concepcion & Hijos,
enter into any transaction without Inc., 53 Phil. 806 (1928) For a
prior approval from the courts. mortgagee to claim a deficiency
Gutierrez v. Barretto-Datu, 5 SCRA judgment on the estate, he must
757 (1962) The administrator can file a claim for the deficiency
not be sued for damages for within the period provided, even if
breach of a contract committed by the foreclosure proceedings have
the decedent. In such a case, the not yet been terminated.
claim should be filed before the Bayot v. Zurbito, 39 Phil. 650
estate proceedings. The (1919) The probate court has no
administrator may be sued only to jurisdiction to entertain a claim in

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57

favor of the estate against a 3rd Vda. de Jacob v. CA, 184 SCRA 294
person, except when such claim is (1990) Mortgagee does not lose its
made in the form of a right to extrajudicially foreclose
counterclaim. This counterclaim is the mortgage even after the death
proper in an answer by the of the mortgagor. Filing a claim
executor or administrator to a with the probate court is merely an
claim of a creditor. The probate option, not a requirement, for the
court can resolve the counterclaim mortgagee to recover his credit.
even if the original claim is denied.
17. Actions By and
Villanueva v. Ramos, 161 SCRA Against Executors
(1988)
and Administrators
Intestate Estate of Dominador
Danan v. Buencamino, 110 SCRA a. Rule 87
352 (1981) The court has Sec. 1. Actions which may
discretion to entertain a claim filed and which may not be brought
beyond the period prescribed in against executor or
the notice, provided it is filed administrator. No action upon a
within 1 month from expiration of claim for the recovery of money
such period but in no case beyond or debt or interest thereon
the date of entry of the order of shall be commenced against
distribution Objection as to the executor or administrator;
timeliess of a claim is waived by but actions to recover real or
laches and estoppel (e.g. by filing personal property, or an
of an answer, by asking for a interest therein, from the
postponement of hearings on the estate, or to enforce a lien
claim) thereon, and actions to recover
Jaucian v. Querol, 39 Phil. 707 damages for an injury to person
(1918) Where two persons are or property, real or personal,
bound in solidum for the same may be commenced against
debt and one of them dies, the him.
whole indebtedness must be cf Rule 3, Sec. 16 and 20, RoC
proved against the estate of the
Sec. 16. Death of party; duty of
deceased. If the claim is not thus counsel. — Whenever a party to a
presented, the same will be barred pending action dies, and the claim
as against that estate. is not thereby extinguished, it shall
be the duty of his counsel to
Buan. v. Laya, 102 Phil. 682 (1957) inform the court within thirty (30)
A contingent properly filed before days after such death of the fact
the probate court subsists until the thereof, and to give the name and
contingency has been finally address of his legal representative
or representatives. Failure of
decided or determined. Dismissal
counsel to comply with this duty
of the contingent claim prior to shall be a ground for disciplinary
such final determination is action.
premature. The heirs of the deceased may be
allowed to be substituted for the

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58

deceased, without requiring the .a already instituted [ na filed


appointment of an executor or na in court tapos namatay] –
administrator and the court may
appoint a guardian ad litem for the
the decedent is substituted,
minor heirs. case continues until final
judgment, then the judgment
The court shall forthwith order
said legal representative or is presented as a claim
representatives to appear and be before the estate
substituted within a period of proceedings (de Leon: The
thirty (30) days from notice. creditor must file a
If no legal representative is named contingent claim under the
by the counsel for the deceased statute of non-claims)
party, or if the one so named shall
fail to appear within the specified .b not yet instituted – file a
period, the court may order the claim in the estate
opposing party, within a specified proceedings within the
time, to procure the appointment
statute of non-claims
of an executor or administrator for
the estate of the deceased and the .2 to recover real or personal
latter shall immediately appear for property, or an interest therein,
and on behalf of the deceased. The
court charges in procuring such from the estate, or to enforce a
appointment, if defrayed by the lien thereon, and actions to
opposing party, may be recovered recover damages for an injury
as costs. (16a, 17a) to person or property, real or
Sec. 20. Action on contractual personal
money claims. — When the action
is for recovery of money arising .a already instituted [ na filed
from contract, express or implied, na in court tapos namatay]–
and the defendant dies before the decedent is substituted,
entry of final judgment in the court case continues until final
in which the action was pending at judgment, then the judgment
the time of such death, it shall not
be dismissed but shall instead be is presented as a claim
allowed to continue until entry of before the estate
final judgment. A favorable proceedings (de Leon: The
judgment obtained by the plaintiff creditor must file a
therein shall be enforced in the contingent claim under the
manner especially provided in
these Rules for prosecuting claims statute of non-claims)
against the estate of a deceased .b not yet instituted – sue the
person. (21a)
executor or administrator in
If the claim against a deceased is a separate action (de Leon:
.1 a money claim (liquidated) [BE The creditor must file a
CAREFUL IN QUESTIONS contingent claim under the
NOT STATING THE STATUS statute of non-claims)
OF THE DEBTOR OR de Leon: Note that under the
OWNER OF THE ESTATE IF 1997 Rules of Civil Procedure,
IT WAS INSTITUTED OR there is now no distinction
NOT] between money claims and non-
money claims already instituted

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before the death of the decedent. of the court, an executor or


In both cases, the action survives, administrator may compound
the decedent is substituted, the with the debtor of the deceased
claim is filed as a contingent claim, for a debt due, and may give a
and the final judgment is claimed discharge of such debt on
in the estate proceedings. The receiving a just dividend of the
difference lies when the action has estate of the debtor.
not yet been instituted. In money
Sec. 5. Mortgage due estate
claims, it should be presented
may be foreclosed. A mortgage
under the statute of non-claims. In
belonging to the estate of a
non-money claims, the claimant
deceased person, as mortgagee
must sue the executor or
or assignee of the right of a
administrator in a separate action,
mortgagee, may be foreclosed
but he must file a contingent claim
by the executor or
under the statute of non-claims
administrator.
[there must be final
judgement?] Sec. 6. Proceedings when
property concealed, embezzled,
Sec. 2. Executor or
or fraudulently conveyed. If an
administrator may bring or
executor or administrator, heir,
defend actions which survive.
legatee, creditor, or other
For the recovery or protection
individual interested in the
of the property or rights of the
estate of the deceased,
deceased, an executor or
complains to the court having
administrator may bring or
jurisdiction of the estate that a
defend, in the right of the
person is suspected of having
deceased, actions for causes
concealed, embezzled, or
which survive.
conveyed away any of the
Sec. 3. Heir may not sue money, goods, or chattels of the
until have share assigned. deceased, or that such person
When an executor or has in his possession or has
administrator is appointed and knowledge of any deed,
assumes the trust, no action to conveyance, bond, contract, or
recover the title or possession other writing which contains
of lands or for damages done to evidence of or tends to disclose
such lands shall be maintained the right, title, interest, or
against him by an heir or claim of the deceased to real or
devisee until there is an order personal estate, or the last will
of the court assigning such and testament of the deceased,
lands to such heir or devisee or the court may cite such
until the time allowed for suspected person to appear
paying debts has expired. before it and may examine him
Sec. 4. Executor or on oath on the matter of such
administrator may compound complaint; and if the person so
with debtor. With the approval cited refuses to appear, or to
answer on such examination or

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60

such interrogatories as are put Sec. 8. Embezzlement before


to him, the court may punish letters issued. If a person,
him for contempt, and may before the granting of letters
commit him to prison until he testamentary or of
submits to the order of the administration on the estate of
court. The interrogatories put the deceased, embezzles or
to any such person, and his alienates any of the money,
answers thereto, shall be in goods, chattels, or effects of
writing and shall be filed in the such deceased, such person
clerk's office. [MODES OF shall be liable to an action in
DISCOVERY] favor of the executor or
Note that the court may not order administrator of the estate for
the witness to deliver property in double the value of the
his possession to the court unless property sold, embezzled, or
the witness does not assert a claim alienated, to be recovered for
adverse to the estate and express the benefit of such estate.
willingness to deliver the property Sec. 9. Property fraudulently
to the court. Absent these conveyed by deceased may be
conditions, the administrator must recovered. When executor or
file a separate ation torecover the administrator must bring
property. [Valera v. Inserto, 149 action. When there is deficiency
SCRA 533 (1987)] of assets in the hands of an
Sec. 7. Person entrusted executor or administrator for
with estate compelled to render the payment of debts and
account. The court, on expenses of administration, and
complaint of an executor or the deceased in his lifetime had
administrator, may cite a conveyed real or personal
person entrusted by an property, or a right or interest
executor or administrator with therein, or a debt or credit,
any part of the estate of the with intent to defraud his
deceased to appear before it, creditors or to avoid any right,
and may require such person to debt, or duty; or had so
render a full account, on oath, conveyed such property, right,
of the money, goods, chattels, interest, debt, or credit that by
bonds, accounts, or other law the conveyance would be
papers belonging to such estate void as against his creditors,
as came to his possession in and the subject of the
trust for such executor or attempted conveyance would be
administrator, and of his liable to attachment by any of
proceedings thereon; and if the them in his lifetime, the
person so cited refuses to executor or administrator may
appear to render such account, commence and prosecute to
the court may punish him for final judgment an action for the
contempt as having disobeyed a recovery of such property,
lawful order of the court. right, interest, debt, or credit

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for the benefit of the creditors; expenses incurred therein as


but he shall not be bound to the court deems equitable.
commence the action unless on Where the conveyance or
application of the creditors of attempted conveyance has been
the deceased, nor unless the made by the deceased in his
creditors making the lifetime in favor of the executor
application pay such part of the or administrator, the action
costs and expenses, or give which a creditor may bring
security therefor to the shall be in the name of all the
executor or administrator, as creditors, and permission of
the court deems equitable. the court and filing of bond as
above prescribed, are not
Sec. 10. When creditor may
necessary.
bring action. Lien for costs.
When there is such a deficiency b. Cases
of assets, and the deceased in
his lifetime had made or Lopez v. Garcia Lopez, 40 Phil, 184
(1919) An administrator may be
attempted such a conveyance,
compelled by the probate court to
as is stated in the last
account for the period prior to her
preceding section, and the
appointment when she was then an
executor or administrator has
extrajudicial administrator.
not commenced the action
therein provided for, any Pascual v. Pascual, 73 Phil. 561
creditor of the estate may, with (1942) The general rule is, it is the
the permission of the court, executor or adminstrator, not the
commence and prosecute to heirs, who has standing in court to
final judgment, in the name of recover estate property. The
the executor or administrator, a exception is if the executor or
like action for the recovery of administrator refuses to act, e.g.
the subject of the conveyance the executor is a defendant.
or attempted conveyance for Velasquez v. George, 125 SCRA
the benefit of the creditors. But 456 (1983) The heirs have
the action shall not be standing to question the action of
commenced until the creditors the BoD of a corporation owned by
has filed in a court a bond the estate if the the administrator
executed to the executor or himself had participated in the
administrator, in an amount questioned act.
approved by the judge,
conditioned to indemnify the De la Cruz v. Camon, 16 SCRA 886
executor or administrator (1966) The remedy to collect from
against the costs and expenses a debtor of the estate (who is a
incurred by reason of such stranger to the proceedings) is by
action. Such creditor shall have independent action, not motion in
a lien upon any judgment the probate proceedings.
recovered by him in the action de Leon: cf with Bayot v. Zurbito,
for such costs and other 39 Phil. 650 (1919) where the

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62

estate may collect from a claimant themselves after posting a bond to


through a counterclaim even if the indemnify the administrator.
original claim was denied. de Leon: Note that Rule 87 Sec. 10
Modesto v. Modesto, 105 Phil. provides that if the defendant is
1066 (1959) The probate court has the administrator, the creditors
no authority to decide whether or need not post a bond.
not properties belong to the estate Valera v. Inserto, 149 SCRA 533
or to the persons examined (to (1987) A probate court has no
determine if they have concealed power to take cognizance of and
any property of the estate). This is determine the issue of title to
true even if the witness admitted property claimed by a 3rd person
possession of the properties. If, adversely to the decedent, unless
after such examination there is the claimant and all the other
good reason to believe that said parties having legal interest in the
person or persons examined are property consent, expressly or
keeping properties belonging to impliedly, to the submission of the
the estate, then the next step to be question to the probate court for
taken should be for the adjudgment, or the interests of 3rd
administrator to file an ordinary persons are not thereby
action in court to recover the prejudiced. The examination of 3rd
same. The estate may not recover persons is intended merely to elicit
the property by mere motion. evidence relevant to property of
Leon & Ghezzi v. Manufacturers the decedent from persons
Life Ins. Co, 90 Phil. 459 (1951) suspected of having possession or
The 3rd person who may be knowledge thereof, or of having
compelled to render an account is concealed, embezzled, or conveyed
a person who had in possession of away the same. If he lays no claim
estate property entrusted to him to the property and manifests
by, or in trust for, the executor or willingness to turn it over to the
administrator. estate, the probate court simply
issues the appropriate direction for
de Leon: Note the court was
the delivery of the property to the
apparently invoking the now Rule
estate. However, if he asserts a
87 Sec. 7. However, Rule 87 Sec. 6
right to the property contrary to
does not require that the witness
the decedent's, the probate court
was a trustee. Could Ghezzi have
would have no authority to resolve
used such provision instead?
the issue and a separate action
Heirs of Gregoire v. Baker, 51 Phil. must be instituted by the
75 (1927) Where the decendent administrator to recover the
executed a transaction in fraud of property. [GEN RULE: COURT
creditors, and the administrator NO JURISDICTION TO RULE
refuses to sue to recover the ON OWNERSHIP. EXCEPT:
property, the remedy is for the WHEN EVERYONE AGREES so
creditors to sue for recovery long as 3rd persons not
prejudiced]

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63

Bernardo v. CA, 7 SCRA 367 estate. It had no authority to


(1963) When the parties interested deprive such 3rd persons of their
are all heirs of the deceased, it is possession and ownership of the
optional to them to submit to the property.
probate court a question as to title Circa Nila Development
to property, and when so Corporation v. Baylen, 157 SCRA
submitted, said probate court may 609 (1988) Though the probate
definitely pass judgment thereon. court has the power to approve
With the consent of the parties, contracts entered into by the
matters affecting property under estate, it has no jurisdiction to
judicial administration may be compel the other contracting party
taken cognizance of by the court in to abide contract. The remedy is to
the course of intestate proceeding file a specific performance with a
provided interests of third persons court of general jurisdiction.
are not prejudiced.
Aguas v. Llemos, 5 SCRA 959
Uy v. Dizon-Capulong, 221 SCRA (1962) An action for damages from
87 (1993) When questions arise as tort is not a money claim but an
to ownership of property alleged to action to recover damages for
be part of the estate of a deceased injury to property. Such damage
person, but claimed by some other suit survives defendant’s death
person to be his property, not by and need not be separately filed in
virtue of any right of inheritance the estate proceedings. The
from the deceased but by title remedy is to substitute the
adverse to that of the deceased deceased with the administrator or
and his estate, such questions executor of his estate.
cannot be determined in
Climaco v. Siy Uy, 19 SCRA 858
the courts of (1967) An action for damages from
administration tort is for a sum of money which
proceedings. The probate does not survive the death of the
court, has no jurisdiction to defendant. Neither could the
adjudicate such contentions, which action be directed against the
must be submitted to the trial administrator because it is not for
court in the exercise of its general recovery of real or personal
jurisdiction. property, or an interest therein, or
to enforce a lien thereon or to
Cuizon v. Ramolete, 129 SCRA 495
recover damages for an injury to
(1984) When the property in
person or property.
question was in the possession of
3rd parties and more important, de Leon: There is an irreconcilable
covered by a TCT issued in the conflict between Aguas and
name of such 3rd parties, the court Climaco. Though Climaco is the
should have denied the motion of later case, I would side with Aguas
the administrator and excluded the because it cites an authority for its
property in question from the ruling that damages from tort is
inventory of the property of the damage to property and that an

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64

action for damages from tort is made by the will or the estate
similar to recovery of property, appropriated, is not sufficient
enforcing a lien on property and to for that purpose, such part of
recover damages, an action for the estate of the testator, real
damages from tort seeks to or personal, as is not disposed
recover an unliquidated amount, of by will, if any, shall be
unlike money claims which are appropriated for that purpose.
specific in amount.
Sec. 3. Personalty first
Guanco v. PNB, 54 Phil. 244 (1930) chargeable for debts, then
A proceeding for examining realty. The personal estate of
persons suspected of having the deceased not disposed of by
concealed, embezzled, or conveyed will shall be first chargeable
away property of the estate is to with the payment of debts and
elicit evidence. It does not expenses; and if said personal
authorize the court to enforce estate is not sufficient for that
delivery of possession of the things purpose, or its sale would
involved. The remedy is to file an redound to the detriment of the
separate action. participants of the estate, the
whole of the real estate not
18. Payment of the
disposed of by will, or so much
Debts of the Estate thereof as is necessary, may be
a. Rule 88 sold, mortgaged, or otherwise
encumbered for that purpose
Sec. 1. Debts paid in full if by the executor or
estate sufficient. If, after administrator, after obtaining
hearing all the money claims the authority of the court
against the estate, and after therefor. Any deficiency shall be
ascertaining the amount of met by contributions in
such claims, it appears that accordance with the provisions
there are sufficient assets to of section 6 of this rule.
pay debts, the executor or
administrator shall pay the Sec. 4. Estate to be retained
same within the time limited to meet contingent claims. If
for that purpose. the court is satisfied that a
contingent claim duly filed is
Sec. 2. Part of estate from valid, it may order the executor
which debt paid when provision or administrator to retain in his
made by will. If the testator hands sufficient estate to pay
makes provision by his will, or such contingent claim when the
designates the estate to be same becomes absolute, or, if
appropriated for the payment of the estate is insolvent,
debts, the expenses of sufficient to pay a portion equal
administration, or the family to the dividend of the other
expenses, they shall be paid creditors. [CONNECT WITH P.
according to the provisions of 38] [huwag mo I benta ito!
the will; but if the provisions Security for contigent claim!]

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65

Sec. 5. How contingent claim How maturing contingent claim


becoming absolute in two years settled
allowed and paid. Action .1 matures and presented to the
against distributees later. If probate court within 2 years
such contingent claim becomes from the time provided for filing
absolute and is presented to claims – paid with assets
the court, or to the executor or ordered by the court to be
administrator, within two (2) retained by the executor or
years from the time limited for administrator
other creditors to present their
claims, it may be allowed by the .2 matures and presented to the
court if not disputed by the probate court after 2 years
executor or administrator, and, from the time provided for
if disputed, it may be proved filing claims ***
and allowed or disallowed by .a assets that had been
the court as the facts may retained by the executor or
warrant. If the contingent administrator may still be
claim is allowed, the creditor applied to the payment of the
shall receive payment to the claim even if already
same extent as the other distributed to the
creditors if the estate retained distributees in the meantime
by the executor or
administrator is sufficient. But .b the creditor may maintain an
if the claim is not so presented, action against the
distributees to recover the
after having become absolute,
debt, and such distributees
within said two (2) years, and
and their estates shall be
allowed, the assets retained in
liable for the debt in
the hands of the executor or
proportion to the estate they
administrator, not exhausted in
have respectively received
the payment of claims, shall be
from the property of the
distributed by the order of the
deceased
court to the persons entitled to
the same; but the assets so Sec. 6. Court to fix
distributed may still be applied contributive shares where
to the payment of the claim devisees, legatees, or heirs
when established, and the have been in possession. Where
creditor may maintain an devisees, legatees, or heirs
action against the distributees have entered into possession of
to recover the debt, and such portions of the estate before
distributees and their estates the debts and expenses have
shall be liable for the debt in been settled and paid, and have
proportion to the estate they become liable to contribute for
have respectively received from the payment of such debts and
the property of the deceased. expenses, the court having
jurisdiction of the estate may,
by order for that purpose, after

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66

hearing, settle the amount of CHAPTER 2


their several liabilities, and CLASSIFICATION OF CREDITS
order how much and in what Art. 2241. With reference to
manner each person shall specific movable property of the
contribute, and may issue debtor, the following claims or
execution as circumstances liens shall be preferred:
require. [EXECUTION WILL (1) Duties, taxes and fees due
ISSUE] thereon to the State or any
subdivision thereof;
Sec. 7. Order of payment if
(2) Claims arising from
estate insolvent. If the assets misappropriation, breach of trust,
which can be appropriated for or malfeasance by public officials
the payment of debts are not committed in the performance of
sufficient for that purpose, the their duties, on the movables,
executor or administrator shall money or securities obtained by
them;
pay the debts against the
estate, observing the provisions (3) Claims for the unpaid price of
movables sold, on said movables,
of Articles 1059 and 2239 to
so long as they are in the
2251 of the Civil Code. possession of the debtor, up to the
[INSOLVENCY ORDER OF value of the same; and if the
PRIORITY!] movable has been resold by the
debtor and the price is still unpaid,
cf Arts. 1059 and 2239 to 2251 the lien may be enforced on the
NCC price; this right is not lost by the
immobilization of the thing by
Art. 1059. If the assets of the destination, provided it has not
estate of a decedent which can be lost its form, substance and
applied to the payment of debts identity; neither is the right lost by
are not sufficient for that purpose, the sale of the thing together with
the provisions of articles 2239 to other property for a lump sum,
2251 on Preference of Credits when the price thereof can be
shall be observed, provided that determined proportionally;
the expenses referred to in article
2244, No. 8, shall be those (4) Credits guaranteed with a
involved in the administration of pledge so long as the things
the decedent's estate. (n) pledged are in the hands of the
creditor, or those guaranteed by a
Art. 2239. If there is property, chattel mortgage, upon the things
other than that mentioned in the pledged or mortgaged, up to the
preceding article, owned by two or value thereof;
more persons, one of whom is the
insolvent debtor, his undivided (5) Credits for the making, repair,
share or interest therein shall be safekeeping or preservation of
among the assets to be taken personal property, on the movable
possession of by the assignee for thus made, repaired, kept or
the payment of the insolvent possessed;
debtor's obligations. (n)
(6) Claims for laborers' wages, on
Art. 2240. Property held by the the goods manufactured or the
insolvent debtor as a trustee of an work done;
express or implied trust, shall be
(7) For expenses of salvage, upon
excluded from the insolvency
the goods salvaged;
proceedings. (n)

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(8) Credits between the landlord (2) For the unpaid price of real
and the tenant, arising from the property sold, upon the immovable
contract of tenancy on shares, on sold;
the share of each in the fruits or
(3) Claims of laborers, masons,
harvest;
mechanics and other workmen, as
(9) Credits for transportation, well as of architects, engineers
upon the goods carried, for the and contractors, engaged in the
price of the contract and incidental construction, reconstruction or
expenses, until their delivery and repair of buildings, canals or other
for thirty days thereafter; works, upon said buildings, canals
or other works;
(10) Credits for lodging and
supplies usually furnished to (4) Claims of furnishers of
travellers by hotel keepers, on the materials used in the construction,
movables belonging to the guest as reconstruction, or repair of
long as such movables are in the buildings, canals or other works,
hotel, but not for money loaned to upon said buildings, canals or
the guests; other works;
(11) Credits for seeds and (5) Mortgage credits recorded in
expenses for cultivation and the Registry of Property, upon the
harvest advanced to the debtor, real estate mortgaged;
upon the fruits harvested;
(6) Expenses for the preservation
(12) Credits for rent for one year, or improvement of real property
upon the personal property of the when the law authorizes
lessee existing on the immovable reimbursement, upon the
leased and on the fruits of the immovable preserved or improved;
same, but not on money or
(7) Credits annotated in the
instruments of credit;
Registry of Property, in virtue of a
(13) Claims in favor of the judicial order, by attachments or
depositor if the depositary has executions, upon the property
wrongfully sold the thing affected, and only as to later
deposited, upon the price of the credits;
sale.
(8) Claims of co-heirs for warranty
In the foregoing cases, if the in the partition of an immovable
movables to which the lien or among them, upon the real
preference attaches have been property thus divided;
wrongfully taken, the creditor may
(9) Claims of donors or real
demand them from any possessor,
property for pecuniary charges or
within thirty days from the
other conditions imposed upon the
unlawful seizure. (1922a)
donee, upon the immovable
Art. 2242. With reference to donated;
specific immovable property and
(10) Credits of insurers, upon the
real rights of the debtor, the
property insured, for the insurance
following claims, mortgages and
premium for two years. (1923a)
liens shall be preferred, and shall
constitute an encumbrance on the Art. 2243. The claims or credits
immovable or real right: enumerated in the two preceding
articles shall be considered as
(1) Taxes due upon the land or
mortgages or pledges of real or
building;
personal property, or liens within
the purview of legal provisions
governing insolvency. Taxes

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mentioned in No. 1, article 2241, (10) Taxes and assessments due


and No. 1, article 2242, shall first any province, other than those
be satisfied. (n) referred to in articles 2241, No. 1,
and 2242, No. 1;
Art. 2244. With reference to other
property, real and personal, of the (11) Taxes and assessments due
debtor, the following claims or any city or municipality, other than
credits shall be preferred in the those indicated in articles 2241,
order named: No. 1, and 2242, No. 1;
(1) Proper funeral expenses for the (12) Damages for death or
debtor, or children under his or personal injuries caused by a
her parental authority who have no quasi-delict;
property of their own, when
(13) Gifts due to public and private
approved by the court;
institutions of charity or
(2) Credits for services rendered beneficence;
the insolvent by employees,
(14) Credits which, without special
laborers, or household helpers for
privilege, appear in (a) a public
one year preceding the
instrument; or (b) in a final
commencement of the proceedings
judgment, if they have been the
in insolvency;
subject of litigation. These credits
(3) Expenses during the last illness shall have preference among
of the debtor or of his or her themselves in the order of priority
spouse and children under his or of the dates of the instruments and
her parental authority, if they have of the judgments, respectively.
no property of their own; (1924a)
(4) Compensation due the laborers Art. 2245. Credits of any other
or their dependents under laws kind or class, or by any other right
providing for indemnity for or title not comprised in the four
damages in cases of labor preceding articles, shall enjoy no
accident, or illness resulting from preference. (1925)
the nature of the employment;
CHAPTER 3
(5) Credits and advancements
ORDER OF PREFERENCE OF
made to the debtor for support of
CREDITS
himself or herself, and family,
during the last year preceding the Art. 2246. Those credits which
insolvency; enjoy preference with respect to
specific movables, exclude all
(6) Support during the insolvency
others to the extent of the value of
proceedings, and for three months
the personal property to which the
thereafter;
preference refers.
(7) Fines and civil indemnification
Art. 2247. If there are two or more
arising from a criminal offense;
credits with respect to the same
(8) Legal expenses, and expenses specific movable property, they
incurred in the administration of shall be satisfied pro rata, after the
the insolvent's estate for the payment of duties, taxes and fees
common interest of the creditors, due the State or any subdivision
when properly authorized and thereof. (1926a)
approved by the court;
Art. 2248. Those credits which
(9) Taxes and assessments due the enjoy preference in relation to
national government, other than specific real property or real
those mentioned in articles 2241, rights, exclude all others to the
No. 1, and 2242, No. 1; extent of the value of the

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69

immovable or real right to of his death an inhabitant of


which the preference refers. another country, and who died
Art. 2249. If there are two or more insolvent, his estate found in
credits with respect to the same the Philippines shall, as far as
specific real property or real
practicable, be so disposed of
rights, they shall be satisfied pro
rata, after the payment of the that his creditors here and
taxes and assessments upon the elsewhere may receive each an
immovable property or real right. equal share, in proportion to
(1927a) their respective credits.
Art. 2250. The excess, if any, after
the payment of the credits which
Sec. 10. When and how
enjoy preference with respect to claim proved outside the
specific property, real or personal, Philippines against insolvent
shall be added to the free property resident's estate paid. If it
which the debtor may have, for the appears to the court having
payment of the other credits.
(1928a) jurisdiction that claims have
been duly proven in another
Art. 2251. Those credits which do
country against the estate of an
not enjoy any preference with
respect to specific property, and insolvent who was at the time
those which enjoy preference, as of his death an inhabitant of
to the amount not paid, shall be the Philippines, and that the
satisfied according to the following executor or administrator in
rules:
the Philippines had knowledge
(1) In the order established in of the presentation of such
article 2244;
claims in such country and an
(2) Common credits referred to in opportunity to contest their
article 2245 shall be paid pro rata allowance, the court shall
regardless of dates. (1929a)
receive a certified list of such
Sec. 8. Dividends to be paid claims, when perfected in such
in proportion to claims. If there country, and add the same to
are no assets sufficient to pay the list of claims proved
the credits of any one class of against the deceased person in
creditors after paying the the Philippines so that a just
credits entitled to preference distribution of the whole estate
over it, each creditor within may be made equally among all
such class shall be paid a its creditors according to their
dividend in proportion to his respective claims; but the
claim. No creditor of any one benefit of this and the
class shall receive any payment preceding sections shall not be
until those of the preceding extended to the creditors in
class are paid. another country if the property
Sec. 9. Estate of insolvent of such deceased person there
nonresident, how disposed of. found is not equally
In case administration is taken apportioned to the creditors
in the Philippines of the estate residing in the Philippines and
of a person who was at the time

Remedial Law Reviewer Mark de Leon, JD 2001


70

the other creditors, according that purpose among the


to their respective claims. creditors, as the circumstances
How foreign claims against of the estate require and in
insolvent resident decedent settled accordance with the provisions
of this rule.
.1 the foreign claims have been
duly proven in another country Sec. 12. Orders relating to
payment of debts where appeal
.2 the executor or administrator in is taken. If an appeal has been
the Philippines had taken from a decision of the
.a knowledge of the court concerning a claim, the
presentation of such claims court may suspend the order
in such country and for the payment of the debts or
may order the distribution
.b an opportunity to contest among the creditors whose
their allowance, claims are definitely allowed,
.3 the court shall receive a leaving in the hands of the
certified list of such claims, executor or administrator
when perfected in such country, sufficient assets to pay the
and claim disputed and appealed.
When a disputed claim is finally
.4 add the same to the list of local
settled the court having
claims proved
jurisdiction of the estate shall
.5 a just distribution of the whole order the same to be paid out
estate equally among all its of the assets retained to the
creditors according to their same extent and in the same
respective claims; proportion with the claims of
The benefit of this and the other creditors.
preceding sections shall not be Sec. 13. When subsequent
extended to the creditors in distribution of assets ordered.
another country if the property of If the whole of the debts are
such deceased person there found not paid on the first
is not equally apportioned to the distribution, and if the whole
creditors residing in the assets are not distributed, or
Philippines and the other other assets afterwards come to
creditors, according to their the hands of the executor or
respective claims. administrator, the court may
Sec. 11. Order for payment from time to time make further
of debts. Before the expiration orders for the distribution of
of the time limited for the assets.
payment of the debts, the court Sec. 14. Creditors to be paid
shall order the payment in accordance with terms of
thereof, and the distribution of order. When an order is made
the assets received by the for the distribution of assets
executor or administrator for among the creditors, the

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71

executor or administrator shall, executor or administrator, not


as soon as the time of payment exceeding six (6) months at a
arrives, pay the creditors the time and not exceeding six (6)
amounts of their claims, or the months beyond the time which
dividend thereon, in the court might have allowed to
accordance with the terms of such original executor or
such order. administrator; and notice shall
be given of the time and place
Sec. 15. Time for paying
for hearing such application, as
debts and legacies fixed, or
required in the last preceding
extended after notice, within
section.
what periods. On granting
letters testamentary or b. Cases
administration the court shall
allow to the executor or Aldamiz v. Judge of CFI-Mindoro,
85 Phil. 228 (1949) For legal
administrator a time for
services rendered for the estate, it
disposing of the estate and
is the administrator who is liable
paying the debts and legacies
in his personal capacity, not as
of the deceased, which shall
administrator of the estate.
not, in the first instance,
Furthermore, writ of execution is
exceed one (1) year; but the
not the proper remedy for payment
court may, on application of the
of debts and expenses of
executor or administrator and
administration. The proper
after hearing on such notice of
procedure is for the court to order
the time and place therefor
the sale of property of the estate
given to all persons interested
and use the proceeds to pay for
as it shall direct, extend the
the debts and expenses. Execution
time as the circumstances of
may issue only where the devisees,
the estate require not
legatees or heirs have entered into
exceeding six (6) months for a
possession of their respective
single extension nor so that the
portions in the estate prior to
whole period allowed to the
settlement and payment of debts
original executor or
and expenses.
administrator shall exceed two
(2) years. Buan. v. Laya, 102 Phil. 682 (1957)
A contingent properly filed before
Sec. 16. Successor of dead the probate court subsists until the
executor or administrator may contingency has been finally
have time extended on notice decided or determined. Dismissal
within certain period. When an of the contingent claim prior to
executor or administrator dies, such final determination is
and a new administrator of the premature.
same estate is appointed, the
court may extend the time Ignacio v. Elchico, 20 SCRA 100
allowed for the payment of the (1967) Where the distributees
debts or legacies beyond the have taken possession of the estate
time allowed to the original before the debts and expenses are

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72

settled and paid, the probate court a claim against the estate. The
may, after hearing, settle the remedy is for the probate court to
amount of liability corresponding order the slae of property of the
to distributee and order how much estate and all debts should be paid
and in what manner each of them out of the proceeds of the sale.
shall contribute, and may issue
execution against them or their 19. Sales, Mortgages,
bond, if any. Without hearing, any and Other
order for return of property Encumbrances of
distributed is premature. Property of
Dinglasan v. Ang Chia, 88 Phil. 476 Decedent
(1951) Administration proceedings
a. Rule 89
may not be closed if there is an
action by 3rd persons against the Sec. 1. Order of sale of
administrator and the heirs for personalty. Upon the
recovery of property involved in application of the executor or
the proceedings, and in such case, administrator, and on written
the closure must wait until the notice to the heirs and other
ordinary civil action is finally persons interested, the court
terminated. may order the whole or a part
of the personal estate to be
Intestate of Januaria Gonzales, 72
sold, if it appears necessary for
Phil. 245 (1941) Sales ordered by
the purpose of paying debts,
the probate court for payment of
expenses of administration, or
debts are final and not subject to
legacies, or for the preservation
legal redemption.
of the property.
Echaus v. Blanco, 179 SCRA 704
(1989) Under the 1964 Rules of Sec. 2. When court may
Civil Procedure action for money authorize sale, mortgage, or
claims pending against a deceased other encumbrance of realty to
should be dismissed and instituted pay debts and legacies through
as a money claim in the estate personalty not exhausted.
proceedings. Failure of the estate When the personal estate of the
to move to dismiss is a waiver of deceased is not sufficient to
its objections. The money pay the debts, expenses of
judgment may be claimed in the administration, and legacies, or
estate proceedings, even outside where the sale of such personal
the statute of non-claims. estate may injure the business
Furthermore, the court has or other interests of those
discretion to entertain a claim interested in the estate, and
beyond the statute of non-claims where a testator has not
provided an order of distribution is otherwise made sufficient
yet to be entered. Pendency of a provision for the payment of
case is good excuse for tardiness such debts, expenses, and
in the filing of the claim. However, legacies, the court, on the
execution is not proper to enforce application of the executor or

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73

administrator and on written such debts, expenses, and


notice to the heirs, devisees, legacies
and legatees residing in the But if the sale is purportedly
Philippines, may authorize the “beneficial” to the distributees (i.e.
executor or administrator to not among the above instances),
sell, mortgage, or otherwise notice must be to all the
encumber so much as may be distributees and creditors,
necessary of the real estate, in whether resident or not. (Rule 89
lieu of personal estate, for the Sec. 4)
purpose of paying such debts,
expenses, and legacies, if it Sec. 3. Persons interested
clearly appears that such sale, may prevent such sale, etc., by
mortgage, or encumbrances giving bond. No such authority
would be beneficial to the to sell, mortgage, or otherwise
persons interested; and if a encumber real or personal
part cannot be sold, estate shall be granted if any
mortgaged, or otherwise person interested in the estate
encumbered without injury to gives a bond, in a sum to be
those interested in the fixed by the court, conditioned
remainder, the authority may to pay the debts, expenses of
be for the sale, mortgage, or administration, and legacies
other encumbrance of the within such time as the court
whole of such real estate, or so directs; and such bond shall be
much thereof as is necessary or for the security of the
beneficial under the creditors, as well as of the
circumstances. executor or administrator, and
may be prosecuted for the
When real property may be sold benefit of either.
ahead of personal property to pay
debts and legacies (instances when Only a person interested in the
application for authority to sell estate may oppose the sale of
requires written notice only to estate property, but he must post a
resident distributees) bond.
.1 personal estate of the deceased Sec. 4. When court may
is not sufficient to pay the authorize sale of estate as
debts, expenses of beneficial to interested
administration, and legacies, or persons. Disposal of proceeds.
When it appears that the sale
.2 where the sale of such personal of the whole or a part of the
estate may injure the business real or personal estate, will be
or other interests of those beneficial to the heirs,
interested in the estate, and
devisees, legatees, and other
.3 where a testator has not interested persons, the court
otherwise made sufficient may, upon application of the
provision for the payment of executor or administrator and
on written notice to the heirs,

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74

devisees and legatees who are Sec. 6. When court may


interested in the estate to be authorize sale, mortgage, or
sold, authorize the executor or other encumbrance of realty
administrator to sell the whole acquired on execution or
or a part of said estate, foreclosure. The court may
although not necessary to pay authorize an executor or
debts, legacies, or expenses of administrator to sell, mortgage,
administration; but such or otherwise encumber real
authority shall not be granted estate acquired by him on
if inconsistent with the execution or foreclosure sale,
provisions of a will. In case of under the same circumstances
such sale, the proceeds shall be and under the same regulations
assigned to the persons as prescribed in this rule for
entitled to the estate in the the sale, mortgage, or other
proper proportions. encumbrance of other real
estate.
Sec. 5. When court may
authorize sale, mortgage, or Sec. 7. Regulations for
other encumbrance of estate to granting authority to sell,
pay debts and legacies in other mortgage, or otherwise
countries. When the sale of encumber estate. The court
personal estate, or the sale, having jurisdiction of the estate
mortgage, or other of the deceased may authorize
encumbrance of real estate is the executor or administrator
not necessary to pay the debts, to sell personal estate, or to
expenses of administration, or sell, mortgage, or otherwise
legacies in the Philippines, but encumber real estate; in cases
it appears from records and provided by these rules and
proceedings of a probate court when it appears necessary or
in another country that the beneficial, under the following
estate of the deceased in such regulations:
other country is not sufficient (a) The executor or
to pay the debts, expenses of administrator shall file a
administration, and legacies written petition setting forth
there, the court here may the debts due from the
authorize the executor or deceased, the expenses of
administrator to sell the administration, the legacies,
personal estate or to sell, the value of the personal
mortgage, or otherwise estate, the situation of the
encumber the real estate for estate to be sold, mortgaged, or
the payment of debts or otherwise encumbered, and
legacies in the other country, in such other facts as show that
the same manner as for the the sale, mortgage, or other
payment of debts or legacies in encumbrance is necessary or
the Philippines. beneficial;

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75

(b) The court shall governed by the provisions


thereupon fix a time and place concerning notice of execution
for hearing such petition, and sale;
cause notice stating the nature (f) There shall be recorded in
of the petition, the reason for the registry of deeds of the
the same, and the time and province in which the real
place of hearing, to be given estate thus sold, mortgaged, or
personally or by mail to the otherwise encumbered is
persons interested, and may situated, a certified copy of the
cause such further notice to be order of the court, together
given, by publication or with the deed of the executor or
otherwise, as it shall deem administrator for such real
proper; estate, which shall be as valid
(c) If the court requires it, as if the deed had been
the executor or administrator executed by the deceased in his
shall give an additional bond, lifetime.
in such sum as the court Sec. 8. When a court may
directs, conditioned that such authorize conveyance or realty
executor or administrator will which deceased contracted to
account for the proceeds of the convey. Notice. Effect of deed.
sale, mortgage, or other Where the deceased was in his
encumbrance; lifetime under contract,
(d) If the requirements in binding in law, to deed real
the preceding subdivisions of property, or an interest therein,
this section have been complied the court having jurisdiction of
with, the court, by order stating the estate may, on application
such compliance, may for that purpose, authorize the
authorize the executor or executor or administrator to
administrator to sell, mortgage, convey such property according
or otherwise encumber, in to such contract, or with such
proper cases, such part of the modifications as are agreed
estate as is deemed necessary, upon by the parties and
and in case of sale the court approved by the court; and if
may authorize it to be public or the contract is to convey real
private, as would be most property to the executor or
beneficial to all parties administrator, the clerk of the
concerned. The executor or court shall execute the deed.
administrator shall be The deed executed by such
furnished with a certified copy executor, administrator, or
of such order; clerk of court shall be as
effectual to convey the property
(e) If the estate is to be
as if executed by the deceased
sold at auction, the mode of
in his lifetime; but no such
giving notice of the time and
conveyance shall be authorized
place of the sale shall be
until notice of the application

Remedial Law Reviewer Mark de Leon, JD 2001


76

for that purpose has been given jurisdiction, does not confer on the
personally or by mail to all purchaser a title.
persons interested, and such Estate of Gamboa v. Floranza, 12
further notice has been given, Phil. 191 (1908) The probate court
by publication or otherwise, as has no power to order the sale of a
the court deems proper; nor if specific piece of real estate for the
the assets in the hands of the purpose of paying a mortgage debt
executor or administrator will which is a lien thereon. It may be
thereby be reduced so as to that the court would have
prevent a creditor from authority to sell the property,
receiving his full debt or subject to the mortgage lien, for
diminish his dividend. the purpose of paying other debts
Sec. 9. When court may of the estate, but there is nothing
authorize conveyance of lands giving the court authority to sell it
which deceased held in trust. for the purpose of paying that
Where the deceased in his specific debt. An order made by
lifetime held real property in the probate court for the sale of
trust for another person, the real property of the estate is void
court may, after notice given as when no notice of the hearing
required in the last preceding upon the petition for such sale is
section, authorize the executor given. The sale made pursuant to
or administrator to deed such such order is also void.
property to the person, or his CFI of Rizal v. CA, 106 SCRA 114
executor or administrator, for (1981) Sale of estate property may
whose use and benefit it was so not be disapproved on the sole
held; and the court may order ground that there is a higher offer.
the execution of such trust, For a person to be able to
whether created by deed or by intervene in an administration
law. proceeding concerning the estate
b. Cases of a deceased person, it is
necessary for him to have an
Godoy v. Orellano, 42 Phil. 347 interest in such estate. A
(1921) The court has exclusive prospective buyer of estate
jurisdiction to authorize the sale of property is not an interested party
properties of the estate. A power in the estate and has no right to
of attorney executed by the heirs intervene either in the proceedings
in favor of the administrator, brought in connection with the
without authority of court, has no estate or in the settlement of the
legal effect. A sale by an succession. Lastly, to prevent sale
administrator of the personal of estate property, the oppositor
property of the estate, without the must post a bond.
authority of an order of court, or of
a will, or under an order of court Jaroda v. Cusi, 28 SCRA 1008
which is void for want of (1969) If even to sell for valuable
consideration property of the
estate requires prior written notice

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77

of the application to the required by said §2, the personal


distributees, such notice is equally, properties were insufficient to pay
if not more, indispensable for the debts and expenses of
disposing gratuitously of assets of administration. There is not even a
the decedent in favor of strangers. showing that the sale was made
An order approving a contract for the purpose of paying debts or
without notice to the expenses of administration (or
distributees is void. legacies), a condition which
circumscribes the applicability
Bonaga v. Soler, 2 SCRA 755
of that section. On the face of
(1961)
the reamended complaint at
Facts: Administrator sells land any rate, it does not appear
without notice to the heirs of the that the contested sale was one
hearing of the application to sell. under said §2; and the same
Some of the heirs were in Spain can not be invoked to sustain
and never got their share of the the motion to dismiss.
proceeds. After the WWII, new
administrator is appointed who A decedent's representative
questions the sale. (administrator) is not estopped
from questioning the validity of his
Held: A sale of properties of an own void deed purporting to
estate as beneficial to the convey land; and if this be true of
interested parties must comply the administrator as to his own
with the requisites of the fixing of acts, a fortiori, his successor can
the time and place of hearing for not be estopped to question the
an application to sell, and the acts of hie predecessor that are
notice thereof to the heirs. Without not conformable to law.
them, the authority to sell, the sale
itself, and the order approving it, 20. Distribution and
would be null and void ab initio. Partition of the
The rule does not distinguish Estate
between heirs residing in and
residing outside the Philippines. a. Rule 90
Its requirements should apply Sec. 1. When order for
regardless of the place of distribution of residue made.
residence of those required to be When the debts, funeral
notified under said rule. charges, and expenses of
The contention that the sale was administration, the allowance
made under now §2, Rule 89 to the widow, and inheritance
(wherein notice is required only to tax, if any, chargeable to the
those heirs, etc., residing in the estate in accordance with law,
Philippines), is not substantiated have been paid, the court, on
by the record. Neither the deed of the application of the executor
sale, nor the orders issued by the or administrator, or of a person
probate court in connection interested in the estate, and
therewith, show whether, as after hearing upon notice, shall

Remedial Law Reviewer Mark de Leon, JD 2001


78

assign the residue of the estate Sec. 3. By whom expenses of


to the persons entitled to the partition paid. If at the time of
same, naming them and the the distribution the executor or
proportions, or parts, to which administrator has retained
each is entitled, and such sufficient effects in his hands
person may demand and which may lawfully be applied
recover their respective shares for the expenses of partition of
from the executor or the properties distributed, such
administrator, or any other expenses of partition may be
person having the same in his paid by such executor or
possession. If there is a administrator when it appears
controversy before the court as equitable to the court and not
to who are the lawful heirs of inconsistent with the intention
the deceased person or as to of the testator [BAYAD ANG
the distributive shares to which SOBRA]; otherwise, they shall
each person is entitled under be paid by the parties in
the law, the controversy shall proportion to their respective
be heard and decided as in shares or interest in the
ordinary cases. premises, and the
apportionment shall be settled
No distribution shall be
and allowed by the court, and,
allowed until the payment of
if any person interested in the
the obligations above
partition does not pay his
mentioned has been made or
proportion or share, the court
provided for, unless the
may issue an execution in the
distributees, or any of them,
name of the executor or
give a bond, in a sum to be
administrator against the party
fixed by the court, conditioned
not paying for the sum
for the payment of said
assessed.
obligations within such time as
the court directs. Sec. 4. Recording the order
of partition of estate. Certified
Sec. 2. Questions as to
copies of final orders and
advancement to be determined.
judgments of the court relating
Questions as to advancement
to the real estate or the
made, or alleged to have been
partition thereof shall be
made, by the deceased to any
recorded in the registry of
heir may be heard and
deeds of the province where the
determined by the court having
property is situated.
jurisdiction of the estate
proceedings; and the final b. Cases
order of the court thereon shall
be binding on the person Gatmaitan v. Medina, 109 Phil. 108
(1960) Partial partition and
raising the questions and on
distribution may be had only after
the heir.
posting of a bond and after the
inventory and appraisal must has

Remedial Law Reviewer Mark de Leon, JD 2001


79

been approved, notices for declared an heir. This petition was


presentation of claims have been opposed by the nephews and
published, the period for nieces. Probate court eventually
presentation of claims elapsed. declares her as an heir.
Torres v. Encarnacion, 89 Phil. 678 Held: A person claiming to be an
(1951) acknowledged natural child of a
deceased need not maintain a
Facts: Project of partition includes
separate action for recognition but
land possessed and claimed by the
may simply intervene in the
heirs of an heir. Such heirs won an
intestate proceedings, by alleging
execution of the partition before
and proving therein his or her
the SC. Such heirs now seek to
status as such, and claiming
exclude the land in their
accordingly the right to share in
possession.
the inheritance.
Held: Where a partition had not
Inasmuch as the recognition of the
only been approved and thus
status of the petitioner as a natural
become a judgment of the court,
child is a prerequisite to her right
but distribution of the estate in
or heirship, her prayer that she be
pursuance of such partition had
declared universal heirs implies a
fully been carried out, and the
like prayer that she be recognized
heirs had received the property
as an acknowledged natural child.
assigned to them, they are
Furthermore, the prayer for relief,
precluded from subsequently
though part of the pleading, is not
attacking its validity or any part of
part of the cause of action or
it. Where a piece of land has been
defense alleged therein, and the
included in a partition, and there is
pleader is entitled to as much
no allegation that the inclusion
relief as the facts duly pleaded
was effected through improper
may warrant.
means or without the claimant's
knowledge, the partition barred Oppositors claim that they had no
any further litigation on the title to notice either of the petition for the
said land, and operated to bring declaration of heirs or of the date
the property under the control and set for the hearing thereof. We find
jurisdiction of the court for proper in the record no evidence
disposition according to the tenor affirmatively showing that they
of the partition. had no such notice; therefore, the
presumption of regularity of
Lopez v. Lopez, 68 Phil. 227 (1939)
proceedings should stand. In the
Facts: A person filed a petition in motion for reconsideration filed by
the intestate proceedings to be them, the lack of notice is alleged;
adjudged as the universal heiress but the motion is not even verified.
of the deceased. There were Besides, according to the record
allegations that she was an Attorney Simplicio B. Peña was the
acknowledged natural child of a counsel for both the administrator
deceased, but there was no and the oppositors. The petition
specific prayer that she be for declaration of heirs, although

Remedial Law Reviewer Mark de Leon, JD 2001


80

signed by Attorney Simplicio B. the remainder delivered to the


Peña as "abogado del distributees. The probate court
administrador", was, in fact, a approving a contract has the
petition filed in behalf of the power to order its revocation or
oppositors as their right to reduction.
succession is therein asserted and Solivio v. CA, 182 SCRA 119 (1990)
prayed for. Under these It is the order of distribution
circumstances, there exists directing the delivery of the
sufficient ground for holding, as residue of the estate to the
we do hold, that the oppositors had distributees, not approval of
notice of the petition as well as of project of partition, that brings to
the hearing where the said a close the estate proceedings.
attorney was present. [so
acknowledgment pwede sa probate Prior to this, an excluded
proceeding] heir can and should move
to set aside the declaration
Imperial v. Muñoz, 58 SCRA 678
(1974) of heirs. A separatee action is
improper. The remedy in case of
Facts: Probate court approved denial of the motion for reopening
project of partition where widower is review on certiorari to the CA.
awarded 5/8 of the estate, and
adopted daughter, 3/8. Nearly 2 de Leon: I think the proper remedy
months later, administrator- is appeal (Rule 109 Sec. 1 [b])
widower seeks to correct the 21. Escheats
sharing to ¾ widower and ¼
adopted daughter. Probate court a. Rule 91 [do not
grants the correction. skip the rules
Held: An order which determines there needs to be
the distributive shares of the heirs a petition and
is appealable and not interlocutory. publication
If not appealed within the 30-day otherwise
reglementary period, it becomes
premature]
final. An erroneous decree or
judgment although granted Sec. 1. When and by whom
without legal authority and petition filed. When a person
contrary to the express provision dies intestate, seized of real or
of the statute, is not void. Here, as personal property in the
no appeal was taken, the decree Philippines, leaving no heir or
must be conceded to have full person by law entitled to the
force and effect. An erroneous same, the Solicitor General or
decree is not a void decree. his representative in behalf of
Timbol v. Cano, 1 SCRA 1271 the Republic of the Philippines,
(1961) The probate court loses may file a petition in the Court
jurisdiction of an estate only after of First Instance of the
the payment of all the debts and province where the deceased

Remedial Law Reviewer Mark de Leon, JD 2001


81

last resided or in which he had municipalities or cities,


estate, if he resided out of the respectively, in which the same
Philippines, setting forth the is situated. If the deceased
facts, and praying that the never resided in the
estate of the deceased be Philippines, the whole estate
declared escheated. may be assigned to the
respective municipalities or
Sec. 2. Order for hearing. If
cities where the same is
the petition is sufficient in
located. Such estate shall be
form and substance, the court,
for the benefit of public
by an order reciting the
schools, and public charitable
purpose of the petition, shall fix
institutions and centers in said
a date and place for the
municipalities or cities.
hearing thereof, which date
shall be not more than six (6) The court, at the instance of
months after the entry of the an interested party, or on its
order, and shall direct that a own motion, may order the
copy of the order be published establishment of a permanent
before the hearing at least once trust, so that only the income
a week for six (6) successive from the property shall be
weeks in some newspaper of used.
general circulation published Sec. 4. When and by whom
in the province, as the court claim to estate filed. If a
shall deem best. devisee, legatee, heir, widow,
Sec. 3. Hearing and widower or other person
judgment. Upon the entitled to such estate appears
satisfactory proof in open court and files a claim thereto with
on the date fixed in the order the court within five (5) years
that such order has been from the date of such
published as directed and that judgment, such person shall
the person died intestate, have possession of and title to
seized of real or personal the same, or if sold, the
property in the Philippines, municipality or city shall be
leaving no heir or person accountable to him for the
entitled to the same, and no proceeds, after deducting
sufficient cause being shown to reasonable charges for the care
the contrary, the court shall of the estate; but a claim not
adjudge that the estate of the made within said time shall be
deceased in the Philippines, forever barred.
after the payment of just debts Sec. 5. Other actions for
and charges, shall escheat; and escheat. Until otherwise
shall, pursuant to law, assign provided by law, actions for
the personal estate to the reversion or escheat of
municipality or city where he properties alienated in
last resided in the Philippines, violation of the Constitution or
and the real estate to the

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82

of any statute shall be governed .1 municipality files a petition for


by this rule, except that the an inquisition in the premises;
action shall be instituted in the .2 the court appoints a time and
province where the land lies in place of hearing, cause a notice
whole or in part. to be published
b. Cases .3 The notice shall recite the
De Guzman v. Sevilla, 47 Phil. 991 substance of the facts and
(1924) request set forth in the petition,
the time and place at which
Facts: Decedent was an persons claiming the estate may
acknowledged natural child (father appear and be heard before the
was married to someone else). The court, and shall be published at
law at that time provides that the least 6 successive weeks
intestate heirs of an acknowledged
natural child are the parents or the On record, there was no such
siblings. Petitioners and oppositors inquisition conducted, there was
are neither parents nor siblings of no certified copy of the inventory.
the decedent. Thus, the probate Neither was there any showing
court awarded the estate to the that no will was executed, or that
state. there are no relatives entitled to
inherit from him. The notice was
Held: Although there are no published only for 3, not 6, weeks
relatives entitled to succeed the It is indispensable that the
deceased, it is, however, requisites under the Code are met.
premature to award the estate to
the State before the requirements Republic v. CFI of Manila, 165
of sections 750 to 752 of the Code SCRA 11 (1988) The depositary
of Civil Procedure are complied bank of dorman accounts is a real
with. (Case didn’t say what party in interest in the escheat
sections 750 to 752 of the Code of proceedings. It was the personality
Civil Procedure required) to file a motion to dismiss the
escheat proceedings on the ground
de Leon: I think it was referring to
of improper venue. Escheat
the filing of the petition and
publication of the notice of proceedings are actions in
hearing. rem which must be brought in the
province or city where the rem is
In re estate of Lao Sayco, 21 Phil.
located. The rule concerning venue
445 (1912)
of personal actions in civil
Facts: Municipal Council seeks to procedure (where any of the
succeed to the intestate estate. principal defendants resides) is
Opposed by nephew. inapplicable.
Held: The Code of Civil Procedure
provides for the procedure in
escheat proceedings

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83

.1 resident ward – where the ward


resides
.2 non-resident ward – where
Guardianship [de Leon: Note ward’s property is situated
that there is no publication
requirement for guardianship Jurisdiction
proceedings unlike in estate and .1 depends on the value of the
adoption proceedings. However, in ward’s property
guardianship proceedings for non-
resident wards, publication of .2 if in Manila – instituted Juvenile
notice is an option (Rule 93 Sec. and Domestic Relations Court
6). de Leon: Note that in estate
proceedings “residence” is the
C.
physical presence of the decedent
1. Rule 92: Venue with intent to stay indefinitely. In
guardianship “residence” is
Sec. 1. Where to institute
domicile (p. 198 Herrera).
proceedings. Guardianship of
the person or estate of a minor Sec. 2. Meaning of word
or incompetent may be "incompetent." Under this rule,
instituted in the Court of First the word "incompetent"
Instance of the province, or in includes persons suffering the
the justice of the peace court of penalty of civil interdiction or
the municipality, or in the who are hospitalized lepers,
municipal court of the prodigals, deaf and dumb who
chartered city where the minor are unable to read and write,
or incompetent person resides those who are of unsound
[domiciled], and if he resides in mind, even though they have
a foreign country, in the Court lucid intervals, and persons not
of First Instance of the being of unsound mind, but by
province wherein his property reason of age, disease, weak
or part thereof is situated; mind, and other similar causes,
provided, however, that where cannot, without outside aid,
the value of the property of take care of themselves and
such minor or incompetent manage their property,
exceeds the jurisdiction of the becoming thereby an easy prey
justice of the peace or for deceit and exploitation.
municipal court, the “Incompetent” includes persons
proceedings shall be instituted who are
in the Court of First Instance.
.1 suffering civil interdiction or
In the City of Manila the
proceedings shall be instituted .2 hospitalized lepers
in the Juvenile and Domestic .3 prodigals
Relations Court.
.4 deaf and dumb who are unable
Venue of guardianship proceedings to read and write

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.5 of unsound mind, even though Philippines may also file a


they have lucid intervals, and petition in favor of a ward
.6 by reason of age, disease, weak thereof, and the Director of
mind, and other similar causes, Health, in favor of an insane
cannot, without outside aid, person who should be
take care of themselves and hospitalized, or in favor of an
manage their property, isolated leper.
becoming thereby an easy prey cf Rule 93 Sec. 6 for non-resident
for deceit and exploitation. wards
Sec. 3. Transfer of venue. Sec. 6. When and how guardian
The court taking cognizance of for nonresident appointed. Notice.
When a person liable to be put
a guardianship proceeding, under guardianship resides
may transfer the same to the without the Philippines but has
court of another province or estate therein, any relative or
municipality wherein the ward friend of such person, or any one
has acquired real property, if interested in his estate, in
expectancy or otherwise, may
he has transferred thereto his petition a court having jurisdiction
bona-fide residence, and the for the appointment of a guardian
latter court shall have full for the estate, and if, after notice
jurisdiction to continue the given to such person and in such
proceedings, without requiring manner as the court deems proper,
by publication or otherwise, and
payment of additional court hearing, the court is satisfied that
fees. such nonresident is a minor or
incompetent rendering a guardian
2. Rule 93: necessary or convenient, it may
Appointment of appoint a guardian for such estate.
Guardians (connect Who may petition for appointment
with ART 1389) of guardian for
Sec. 1. Who may petition for .1 resident ward
appointment of guardian for .a Any relative, friend, or other
resident. Any relative, friend, or person on behalf of a ward
other person on behalf of a who has no parent or lawful
resident minor or incompetent guardian
who has no parent or lawful
guardian, or the minor himself .b the minor himself if 14 years
if fourteen years of age or over, of age or over
may petition the court having .c an officer of the Federal
jurisdiction for the Administration of the US in
appointment of a general the Philippines may also file
guardian for the person or a petition in favor of a ward
estate, or both, of such minor thereof
or incompetent. An officer of
.d the Director of Health, in
the Federal Administration of
favor of an insane person
the United States in the
who should be hospitalized,

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85

or in favor of an isolated persons mentioned in the


leper. petition residing in the
.2 non-resident ward province, including the minor if
above 14 years of age or the
.a any relative or friend of such incompetent himself, and may
person, or direct other general or special
.b any one interested in his notice thereof to be given.
estate, in expectancy or de Leon: Note that there is no
otherwise publication requirement for
Sec. 2. Contents of petition. guardianship proceedings unlike in
A petition for the appointment estate and adoption proceedings.
of a general guardian must However, in guardianship
show, so far as known to the proceedings for non-resident
petitioner: wards, publication of notice is an
option (Rule 93 Sec. 6).
(a) The jurisdictional facts;
Sec. 4. Opposition to
(b) The minority or petition. Any interested person
incompetency rendering the may, by filing a written
appointment necessary or opposition, contest the petition
convenient; on the ground of majority of
(c) The names, ages, and the alleged minor, competency
residences of the relatives of of the alleged incompetent, or
the minor or incompetent, and the unsuitability of the person
of the persons having him in for whom letters are prayed,
their care; and may pray that the petition
be dismissed, or that letters of
(d) The probable value and
guardianship issue to himself,
character of his estate;
or to any suitable person
(e) The name of the person named in the opposition.
for whom letters of
Grounds for opposition
guardianship are prayed.
.1 majority of the alleged minor
The petition shall be
verified; but no defect in the .2 competency of the alleged
petition or verification shall incompetent, or
render void the issuance of .3 unsuitability of the person for
letters of guardianship. whom letters are prayed
Sec. 3. Court to set time for Sec. 5. Hearing and order
hearing. Notice thereof. When for letters to issue. At the
a petition for the appointment hearing of the petition the
of a general guardian is filed, alleged incompetent must be
the court shall fix a time and present if able to attend, and it
place for hearing the same, and must be shown that the
shall cause reasonable notice required notice has been given.
thereof to be given to the Thereupon the court shall hear

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86

the evidence of the parties in the unemancipated common child


support of their respective without the necessity of a court
appointment. In case of
allegations, and, if the person disagreement, the father's
in question is a minor, or decision shall prevail, unless
incompetent it shall appoint a there is a judicial order to the
suitable guardian of his person contrary.
or estate, or both, with the Where the market value of the
powers and duties hereinafter property or the annual income of
specified. the child exceeds P50,000, the
parent concerned shall be required
Note that it is the incompetent to furnish a bond in such amount
wards, if able, who is required to as the court may determine, but
attend the guardianship hearings. not less than ten per centum (10%)
of the value of the property or
Minors wards are not required to
annual income, to guarantee the
attend. performance of the obligations
Sec. 6. When and how prescribed for general guardians.
guardian for nonresident A verified petition for approval of
appointed. Notice. When a the bond shall be filed in the
proper court of the place where
person liable to be put under the child resides, or, if the child
guardianship resides without resides in a foreign country, in the
the Philippines but has estate proper court of the place where
therein, any relative or friend the property or any part thereof is
of such person, or any one situated.
interested in his estate, in The petition shall be docketed as a
expectancy or otherwise, may summary special proceeding in
which all incidents and issues
petition a court having
regarding the performance of the
jurisdiction for the obligations referred to in the
appointment of a guardian for second paragraph of this Article
the estate, and if, after notice shall be heard and resolved.
given to such person and in The ordinary rules on guardianship
such manner as the court shall be merely suppletory except
deems proper, by publication or when the child is under substitute
otherwise, and hearing, the parental authority, or the guardian
is a stranger, or a parent has
court is satisfied that such remarried, in which case the
nonresident is a minor or ordinary rules on guardianship
incompetent rendering a shall apply. (320a)
guardian necessary or Art. 220. The parents and those
convenient, it may appoint a exercising parental authority shall
guardian for such estate. have with the respect to their
unemancipated children on wards
Sec. 7. Parents as guardians. the following rights and duties:
xxx (repealed by the Arts. 225 and (1) To keep them in their company,
220 of the Family Code) to support, educate and instruct
Art. 225. The father and the them by right precept and good
mother shall jointly exercise legal example, and to provide for their
guardianship over the property of upbringing in keeping with their
means;

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(2) To give them love and affection, parental authority, or the guardian
advice and counsel, companionship is a stranger, or a parent has
and understanding;
remarried, in which case the
(3) To provide them with moral and ordinary rules on guardianship
spiritual guidance, inculcate in
shall apply.
them honesty, integrity, self-
discipline, self-reliance, industry Sec. 8. Service of judgment.
and thrift, stimulate their interest Final orders or judgments
in civic affairs, and inspire in them
compliance with the duties of under this rule shall be served
citizenship; upon the civil registrar of the
(4) To furnish them with good and
municipality or city where the
wholesome educational materials, minor or incompetent person
supervise their activities, resides or where his property or
recreation and association with part thereof is situated.
others, protect them from bad
company, and prevent them from 3. Rule 94: Bonds of
acquiring habits detrimental to
their health, studies and morals;
Guardians
(5) To represent them in all Sec. 1. Bond to be given
matters affecting their interests; before issuance of letters.
(6) To demand from them respect Amount. Conditions. Before a
and obedience; guardian appointed enters
(7) To impose discipline on them as
upon the execution of his trust,
may be required under the or letters of guardianship issue,
circumstances; and he shall give a bond, in such
(8) To perform such other duties as sum as the court directs,
are imposed by law upon parents conditioned as follows:
and guardians. (316a)
(a) To make and return to
Parents are the joint legal the court, within three (3)
guardians over the property of the months, a true and complete
child, without the necessity of a inventory of all the estate, real
court appointment. In case of and personal, of his ward which
disagreement, the father's decision shall come to his possession or
shall prevail, unless there is a knowledge or to the possession
judicial order to the contrary. or knowledge of any other
If the value of the child’s property person for him; [Sounds
or annual income exceeds familiar? Same with estate
P50,000, the parents are still the proceedings]
guardians without necessity of (b) To faithfully execute
court appointment, but they must the duties of his trust, to
post a bond to guarantee the manage and dispose of the
performance of the obligations estate according to these rules
prescribed for general guardians. for the best interests of the
The ordinary rules on guardianship ward, and to provide for the
shall be merely suppletory except proper care, custody, and
when the child is under substitute education of the ward;

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(c) To render a true and hands, or due from him on such


just account of all the estate of settlement, to the person
the ward in his hands, and of lawfully entitled thereto;
all proceeds or interest derived .4 to perform all orders of the
therefrom, and of the court by him to be performed.
management and disposition of
the same, at the time Sec. 2. When new bond may
designated by these rules and be required and old sureties
such other times as the court discharged. Whenever it is
directs; and at the expiration of deemed necessary, the court
his trust to settle his accounts may require a new bond to be
with the court and deliver and given by the guardian, and may
pay over all the estate, effects, discharge the sureties on the
and moneys remaining in his old bond from further liability,
hands, or due from him on such after due notice to interested
settlement, to the person persons, when no injury can
lawfully entitled thereto; result therefrom to those
interested in the estate.
(d) To perform all orders of
the court by him to be Sec. 3. Bonds to be filed.
performed. Actions thereon. Every bond
given by a guardian shall be
Conditions of the guardian’s bond filed in the office of the clerk of
.1 to make and return an the court, and, in case of the
inventory to the court, within 3 breach of a condition thereof,
months may be prosecuted in the same
proceeding or in a separate
.2 to faithfully execute the duties
of his trust, to manage and action for the use and benefit
dispose of the estate for the of the ward or of any other
best interests of the ward, and person legally interested in the
to provide for the proper care, estate.
custody, and education of the The guardian’s bond may be held
ward; liable in the same proceeding or in
.3 to render an account of all the a separate action.
estate of the ward in his hands, 4. Selling and
and of all proceeds or interest Encumbering
derived therefrom, and of the
management and disposition of
Property of Ward
the same, at the time a. Rule 95
designated by these rules and
such other times as the court Sec. 1. Petition of guardian
directs, and at the expiration of for leave to sell or encumber
his trust to settle his accounts estate. When the income of an
with the court and deliver and estate under guardianship is
pay over all the estate, effects, insufficient to maintain the
and moneys remaining in his ward and his family, or to

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maintain and educate the ward Sec. 2. Order to show cause


when a minor, or when it thereupon. If it seems probable
appears that it is for the benefit that such sale or encumbrance
of the ward that his real estate is necessary, or would be
or some part thereof be sold, or beneficial to the ward, the
mortgaged or otherwise court shall make an order
encumbered, and the proceeds directing the next of kin of the
thereof put out at interest, or ward, and all persons
invested in some productive interested in the estate, to
security, or in the improvement appear at a reasonable time
or security of other real estate and place therein specified to
of the ward, the guardian may show cause why the prayer of
present a verified petition the petition should not be
to the court by which he was granted.
appointed setting forth such Sec. 3. Hearing on return of
facts, and praying that an order order. Costs. At the time and
issue authorizing the sale or place designated in the order to
encumbrance. show cause, the court shall
[UNENFORCEABLE if no hear the proofs and allegations
authority approved by court] of the petitioner and next of
Grounds for allowing sale or kin, and other persons
encumbrance over property of the interested, together with their
ward witnesses, and grant or refuse
the prayer of the petition as the
.1 the income of the estate is
best interests of the ward
insufficient to
require. The court shall make
.a maintain the ward and his such order as to costs of the
family, or hearing as may be just.
.b to maintain and educate the Sec. 4. Contents of order for
ward when a minor, or sale or encumbrance, and how
.2 when it appears that it is for the long effective. Bond. If, after
benefit of the ward that his real full examination, it appears
estate or some part thereof be that it is necessary, or would be
sold, or mortgaged or otherwise beneficial to the ward, to sell or
encumbered, and the proceeds encumber the estate, or some
thereof put out at interest, or portion of it, the court shall
invested in some productive order such sale or
security, or encumbrance and that the
proceeds thereof be expended
.3 in the improvement or security for the maintenance of the
of other real estate of the ward ward and his family, or the
The petition for leave to sell ward’s education of the ward, if a
property must be verified. minor, or for the putting of the
same out at interest, or the
investment of the same as the

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circumstances may require. the estate and effects, as


The order shall specify the circumstances may require.
causes why the sale or
encumbrance is necessary or
b. Cases
beneficial, and may direct that Lindain v. CA, 212 SCRA 725
estate ordered sold be disposed (1992) A parent, acting merely as
of at either public or private the legal adminisntrator of the
sale, subject to such conditions property of his minor childrent,
as to the time and manner of does not have the power to
payment, and security where a dispose of or alienate the
part of the payment is deferred, property of said children
as in the discretion of the court without judicial approval,
are deemed most beneficial to regardless of amount.
the ward. The original bond of Maneclang v. Baun, 208 SCRA 179
the guardian shall stand as (1992) Though parents are the
security for the proper legal administrator of their
appropriation of the proceeds children, it does not follow that
of the sale, but the judge may, notice to the parent is notice to the
if deemed expedient, require an children. To properly notify minor
additional bond as a condition children, a guardian ad litem
for the granting of the order of must be appointed and notice
sale. No order of sale granted served on him.
in pursuance of this section
shall continue in force more 5. General Powers and
than one (1) year after granting Duties of Guardians
the same, without a sale being [GR guardianship
had.
court no juris for
A court order allowing sale of the recovery of
ward’s property is effective for at property. Except if
most 1 year.
title is clear and to
Sec. 5. Court may order protect ward]
investment of proceeds and
direct management of estate. a. Rule 96
The court may authorize and Sec. 1. To what guardianship
require the guardian to invest shall extend. A guardian
the proceeds of sales or appointed shall have the care
encumbrances, and any other and custody of the person of his
of his ward's money in his ward, and the management of
hands, in real estate or his estate, or the management
otherwise, as shall be for the of the estate only, as the case
best interest of all concerned, may be. The guardian of the
and may make such other estate of a nonresident shall
orders for the management, have the management of all the
investment, and disposition of estate of the ward within the

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91

Philippines, and no court other guardian must manage the


than that in which such estate of his ward frugally and
guardian was appointed shall without waste, and apply the
have jurisdiction over the income and profits thereon, so
guardianship. far as may be necessary, to the
Scope of guardianship, either comfortable and suitable
maintenance of the ward and
.1 person of his ward and his family, if there be any; and
management of the ward’s if such income and profits be
estate, or insufficient for that purpose,
.2 management of the ward’s the guardian may sell or
estate only encumber the real estate, upon
being authorized by order so to
Sec. 2. Guardian to pay do, and apply so much of the
debts of ward. Every guardian proceeds as may be necessary
must pay the ward's just debts to such maintenance.
out of his personal estate and
the income of his real estate, if Sec. 5. Guardian may be
sufficient; if not, then out of his authorized to join in partition
real estate upon obtaining an proceedings after hearing. The
order for the sale or court may authorize the
encumbrance thereof. guardian to join in an assent to
[ Unenforceable if no court a partition of real or personal
order] estate held by the ward jointly
or in common with others, but
Sec. 3. Guardian to settle such authority shall only be
accounts, collect debts, and granted after hearing, upon
appear in actions for ward. A such notice to relatives of the
guardian must settle all ward as the court may direct,
accounts of his ward, and and a careful investigation as
demand, sue for, and receive all to the necessity and propriety
debts due him, or may, with the of the proposed action.
approval of the court,
compound for the same and Sec. 6. Proceedings when
give discharges to the debtor, person suspected of
on receiving a fair and just embezzling or concealing
dividend of the estate and property of ward. Upon
effects; and he shall appear for complaint of the guardian or
and represent his ward in all ward, or of any person having
actions and special actual or prospective interest
proceedings, unless another in the estate of the ward as
person be appointed for that creditor, heir, or otherwise,
purpose. that anyone is suspected of
having embezzled, concealed,
Sec. 4. Estate to be managed or conveyed away any money,
frugally, and proceeds applied goods, or interest, or a written
to maintenance of ward. A instrument, belonging to the

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ward or his estate, the court inventory and appraisement


may cite the suspected person thereof within three (3) months
to appear for examination after such discovery,
[written interrogatories] succession, or acquisition.
touching such money, goods, Sec. 8. When guardian's
interest, or instrument, and accounts presented for
make such orders as will secure settlement. Expenses and
the estate against such compensation allowed. Upon
embezzlement, concealment or the expiration of a year from
conveyance. the time of his appointment,
Note that similar to a probate and as often thereafter as may
court, the guardianshp court has be required, a guardian must
no authority to order delivery of present his account to the
the ward’s property in the court for settlement and
possession of another who claims allowance. In the settlement of
an adverse interest. A separate the account, the guardian,
ordinary action is required [Cui v. other than a parent, shall be
Piccio, 91 Phil 712 (1952)]. allowed the amount of his
Sec. 7. Inventories and reasonable expenses incurred
accounts of guardians, and in the execution of his trust
appraisement of estates. A and also such compensation for
guardian must render to the his services as the court deems
court an inventory of the estate just, not exceeding fifteen per
of his ward within three (3) centum of the net income of
months after his appointment, the ward.
and annually after such b. Case
appointment an inventory and
account, the rendition of any of Cui v. Piccio, 91 Phil.712 (1952)
which may be compelled upon GR: The guardianshp court has no
the application of an interested authority to order delivery of the
person. Such inventories and ward’s property in the possession
accounts shall be sworn to by of another who claims an adverse
the guardian. All the estate of interest. A separate ordinary
the ward described in the first action is required. Exception: in
inventory shall be appraised. In extreme cases wehre
the appraisement the court property clear and
may request the assistance of indisputable belongs to the
one or more of the inheritance ward, or where his title
tax appraisers. And whenever
any property of the ward not thereot has already been
included in an inventory judicially decided, may the
already rendered is discovered, court direct its delivery to
or succeeded to, or acquired by the guardian.
the ward, like proceedings shall
be had for securing an

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6. Rule 97: by the court on its own motion.


Termination of If it be found that the person is
no longer incompetent, his
Guardianship
competency shall be adjudged
Instances of termination of and the guardianship shall
guardianship cease.
.1 judicial determination of the Petition for determination of
competency of the ward ward’s competency must be
.2 removal of the guardian verified.

.3 resignation of the guardian


.4 marriage or voluntary Sec. 2. When guardian
emancipation of a minor ward removed or allowed to
resign. New appointment.
.5 judicial discharge upon ward’s When a guardian becomes
application that the insane or otherwise
guardianship is no longer incapable of discharging his
necessary trust or unsuitable therefor,
Sec. 1. Petition that or has wasted or
competency of ward be mismanaged the estate, of
adjudged, and proceedings failed for thirty (30) days
thereupon. A person who has after it is due to render an
been declared incompetent for account or make a return,
any reason, or his guardian, the court may, upon
relative, or friend, may petition reasonable notice to the
the court to have his present guardian, remove him, and
competency judicially compel him to surrender the
determined. The petition shall estate of the ward to the
be verified by oath, and shall person found to be lawfully
state that such person is then entitled thereto. A guardian
competent. Upon receiving the may resign when it appears
petition, the court shall fix a proper to allow the same;
time for hearing the questions and upon his resignation or
raised thereby, and cause removal the court may
reasonable notice thereof to be appoint another in his place.
given to the guardian of the Grounds for removal of a guardian
person, so declared
incompetent, and to the ward. .1 insanity
On the trial, the guardian or .2 incapable of discharging his
relatives of the ward, and, in trust
the discretion of the court, any
.3 unsuitable therefore
other person, may contest the
right to the relief demanded, .4 wasted or mismanaged the
and witnesses may be called estate
and examined by the parties or

Remedial Law Reviewer Mark de Leon, JD 2001


94

.5 failed to render an account or wards below twenty-one years of


make a return for 30 days [30 age mentioned in the second and
third paragraphs of Article 2180 of
day allowance] after it is due the Civil Code. (as amended by RA
Sec. 3. Other termination of 6809)
guardianship. The marriage or Sec. 4. Record to be kept by
voluntary emancipation of a the justice of the peace or
minor ward terminates the municipal judge. When a
guardianship of the person of justice of the peace or
the ward, and shall enable the municipal court takes
minor to administer his cognizance of the proceedings
property as though he were of in pursuance of the provisions
age, but he cannot borrow of these rules, the record of the
money or alienate or encumber proceedings shall be kept as in
real property without the the court of first instance.
consent of his father or mother,
Sec. 5. Service of judgment.
or guardian. He can sue and be
Final orders or judgments
sued in court only with the
under this rule shall be served
assistance of his father, mother
upon the civil registrar of the
or guardian. The guardian of
municipality or city where the
any person may be discharged
minor or incompetent person
by the court when it appears,
resides or where his property or
upon the application of the
part thereof is situated.
ward or otherwise, that the
guardianship is no longer 7. Cases
necessary.
Francisco v. CA, 127 SCRA 371
cf Art. 234 and 236 FC (1984) Protection of the ward is
Art. 234. Emancipation takes place more than sufficient reason for the
by the attainment of majority. immediate execution pending
Unless otherwise provided, appeal of a judgment for the
majority commences at the age of
replacement of the first guardian.
eighteen years (as amended by RA
6809). While age alone is not a
controlling criterion in
Art. 236. Emancipation shall
terminate parental authority over
determining a person's fitness or
the person and property of the qualification to be appointed or be
child who shall then be qualified retained as guardian, it may be a
and responsible for all acts of civil factor for consideration.
life, save the exceptions
established by existing laws in Tavera v. El Hogar Fil., Inc., 98
special cases. Phil. 481 (1956) The petition for
Contracting marriage shall require the sale of real property belonging
parental consent until the age of to the estate of a minor must be
twenty-one. verified but lack of verification is
Nothing in this Code shall be not a jurisdictional defect.
construed to derogate from the Furthermore, it is not necessary
duty or responsibility of parents for a grant of authority to the
and guardians for children and

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guardian to sell the estate of the dispute, the determination of said


ward to state that the income from title or right whether in favor of
the property "is insufficient to the persons said to have
maintain the ward and his family embezzled, concealed or conveyed
or to maintain or educate the ward the property must be determined
when a minor." It is enough that it in a separate ordinary action and
is for the benefit of the ward that not in a guardianship
his real estate should be sold, and proceedings."
the proceeds thereof put out at
In the present case the right or
interest, or invested in some
title of the two minors to the
productive security.
property is clear and
Paciente v. Dacuycuy, 114 SCRA indisputable. They inherited a
924 (1982) part of the land in question from
Facts: Widow sold land of an their father. The sale of this land,
estate. Widow later appointed where they are co-owners, by their
guardian of her 2 minor children. mother without the authority of
Vendee sells to Paciente. Paciente the guardianship court is illegal.
mortgages to Consolidated Bank. The respondent court in issuing
RoD notifies guardianship court of the order to the Register of Deeds
the transfers. Guardianship court to cancel the TCT of Paciente and
orders cancellation of Paciente’s to order the issuance of a new title
TCT and orders issuance of new to include the minors as co-owners
one in favor Paciente and the 2 with the petitioner, did not exceed
minor children with 1/3 share its jurisdiction but merely
each. exercised its duty to protect
persons under disability.
Held: While the Supreme Court
has ruled that where title to any Gamboa v. Lopez Vito, 62 Phil. 550
property said to be embezzled, (1935)
concealed or conveyed is in Facts: Guardian leases the land to
question, the determination of said the creditor without court
title or right whether in favor of approval. Thereafter, the creditor
the ward or in favor of the person sought court approval of the lease.
said to have embezzled, concealed Court awarded the lease contract
or conveyed the property must be to somebody else. Creditor
determined in a separate appeals. Pending appeal, creditor
ordinary action and not in took possession. Court order
guardianship proceedings, it was creditor to return possession to
also emphasized that if the right or guardian.
title of the ward to the property is
Held: The leasing of a realty
clear and indisputable the court
belonging to the guardianship of a
may issue an order directing its
minor forms part of the acts of
delivery or return. Where title to
administration of the guardian
any property said to be embezzled,
who, in said administration, is
concealed or conveyed is in
subject to the direction,

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supervision and jurisdiction of the and that the transfer to the PNB
court having cognizance of the branch at San Fernando, La Union
guardianship. Hence, the court has would be more convenient to all
jurisdiction to pass upon the concerned for the proper
application for approval of the administration of the estate. PNB
lease contract. The order denying and Veteran’s Administration
such approval is appealable. appeals.
Moran: A guardian has no power Held: Sec. 2, Rule 97 of the
to lease realty for more than 6 current Rules provides
years, for that would not be a mere Sec. 2. When guardian removed or
act of adminstration. (p. 728) allowed to resign. New
appointment. When a guardian
de Leon: Among the authorities becomes insane or otherwise
cited by Moran is Gamboa v. Lopez incapable of discharging his trust
Vito. However, the case expressly or unsuitable therefor, or has
stated that it was resolving the wasted or mismanaged the estate,
case “without anticipating whether of failed for thirty (30) days after it
is due to render an account or
the respondent guardian could make a return, the court may, upon
enter into a valid contract of lease reasonable notice to the guardian,
for six (6) years without the remove him, and compel him to
authority or approval of the court surrender the estate of the ward to
having cognizance of the the person found to be lawfully
entitled thereto. A guardian may
guardianship.” resign when it appears proper to
Bengzon v. PNB, 3 SCRA 751 allow the same; and upon his
resignation or removal the court
(1961) may appoint another in his place.
Facts: The ward was the mother of A guardian cannot be legally
a veteran who died in WWII. She removed from office except for the
was a beneficiary of accrued cause therein mentioned. To the
insurance benefits and to a extent that a court uses its
monthly death compensation for discretion in appraising whether or
the rest of her life, all extended by not a person is unsuitable or
the United States Veterans incapable of discharging his trust,
Administration. PNB was that much it can be said that
appointed as her guardian. 2 years removal is discretionary. But the
and 7 months later, upon motion, discretion must be exercised
the court removed PNB and within the law, and when the latter
appointed the ward’s son, has laid down the grounds for
Francisco Bengson, as her removal of a guardian, discretion
guardian on the grounds that the is limited to inquiring as to the
ward was living with Francisco existence of any of those grounds.
Bengson in the latter's capacity as
personal guardian; that the No pretense is made in this case,
appointment of Bengson in place and nothing in the record would
of the PNB would save the indicate, that there was any legal
compensation being paid to PNB; ground upon which the removal of

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97

the PNB as guardian was founded. instrument shall be appointed


Neither in Francisco Bengson's by the Court of First Instance
manifestation nor in the orders of in which the will was allowed if
the lower court is it made to it be a will allowed in the
appear that the Philippine National Philippines, otherwise by the
Bank had become incapable of Court of First Instance of the
discharging its trust or was province in which the property,
unsuitable therefor, or that it had or some portion thereof,
committed anything which the affected by the trust is situated.
Rules includes as grounds for [Compare with administrator
removal. On the contrary, it and executor as well as spec
appears incontestable that all admin]
throughout, the PNB has
Venue of appointment of a trustee
discharged its trust satisfactorily.
That it has received commissions .1 if required by a probated will –
allowed by law for its services is RTC wqhere the will was
no ground to remove it, especially probated
since the Bank's commission .2 Otherwise – province where the
averages no more than P100 a property or some part thereof is
year and is offset by interest on located
the ward's deposit and the sum
that the son would probably have Sec. 2. Appointment and
to disburse in bond premiums powers of trustee under will.
Neither is it sufficient to base Executor of former trustee
removal on the unsubstantiated need not administer trust. If a
opinion that it would be more testator has omitted in his will
beneficial to the interests of the to appoint a trustee in the
ward and more convenient for the Philippines, and if such
administration of the estate. A appointment is necessary to
guardian should not be removed carry into effect the provisions
except for the most cogent of the will, the proper Court of
reasons; otherwise, the removal is First Instance may, after notice
unwarranted and illegal. to all persons interested,
appoint a trustee who shall
Moran: Conflict of interest is
have the same rights, powers,
sufficient ground for the removal
and duties, and in whom the
of a guardian, premised on the
estate shall vest, as if he had
logic that antagonistic interests
been appointed by the testator.
would render a guardian
No person succeeding to a trust
unsuitable for the trust.
as executor or administrator of
D. Rule 98: Trustees a former trustee shall be
required to accept such trust.
Sec. 1. Where trustee
appointed. A trustee necessary The executor or administrator of
to carry into effect the the estate of a deceased trustee is
provisions of a will or written not required to accept the trust.

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Sec. 3. Appointment and ordered to apply to the court


powers of new trustee under for appointment as trustee; and
written instrument. When a upon his neglect or refusal to
trustee under a written comply with such order, the
instrument declines, resigns, court shall declare such trust
dies, or is removed before the vacant, and shall appoint a new
objects of the trust are trustee in whom the trust
accomplished, and no adequate estate shall vest in like manner
provision is made in such as if he had been originally
instrument for supplying the appointed by such court.
vacancy, the proper Court of A trustee appointed abroad for
First Instance may, after due Philippine land for residents may
notice to all persons interested, be required, upon petition in the
appoint a new trustee to act RTC wehre the land is situated, to
alone or jointly with the others, apply for court appointment as
as the case may be. Such new trustee. Failure to do so when
trustee shall have and exercise required results in the trust being
the same powers, rights, and declared vacant and new trustee
duties as if he had been being appointed.
originally appointed, and the
trust estate shall vest in him in Sec. 5. Trustee must file
like manner as it had vested or bond. Before entering on the
would have vested, in the duties of his trust, a trustee
trustee in whose place he is shall file with the clerk of the
substituted; and the court may court having jurisdiction of the
order such conveyance to be trust a bond in the amount
made by the former trustee or fixed by the judge of said court,
his representatives, or by the payable to the Government of
other remaining trustees, as the Philippines and sufficient
may be necessary or proper to and available for the protection
vest the trust estate in the new of any party in interest, and a
trustee, either alone or jointly trustee who neglects to file
with the others. such bond shall be considered
to have declined or resigned
Sec. 4. Proceedings where the trust; but the court may
trustee appointed abroad. until further order exempt a
When land in the Philippines is trustee under a will from giving
held in trust for persons a bond when the testator has
resident here by a trustee who directed or requested such
derives his authority from exemption, and may so exempt
without the Philippines, such any trustee when all persons
trustee shall, on petition filed beneficially interested in the
in the Court of First Instance of trust, being of full age, request
province where the land is the exemption. Such exemption
situated, and after due notice may be cancelled by the court
to all persons interested, be at any time and the trustee

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99

required to forthwith file a (c) That he will render


bond. upon oath at least once a year
GR: Like executors, administrators until his trust is fulfilled,
and guardians, trustees are also unless he is excused therefrom
required to post a bond. in any year by the court, a true
account of the property in his
Exceptions: court may exempt a a hands and of the management
trustee under a will from giving a and disposition thereof, and
bond when will render such other accounts
.1 the testator has directed or as the court may order;
requested such exemption, or (d) That at the expiration
.2 all persons beneficially of his trust he will settle his
interested in the trust, being of accounts in court and pay over
full age, request the exemption. and deliver all the estate
remaining in his hands, or due
de Leon: Note that unlike trustees, from him on such settlement,
executors may not be wholly to the person or persons
exempt from posting a bond, even entitled thereto.
if directed by the testator. The
wishes of the testator go only so But when the trustee is
far as to lessen the conditions of appointed as a successor to a
the bond (Rule 81 Sec. 2). prior trustee, the court may
dispense with the making and
Sec. 6. Conditions included return of an inventory, if one
in bond. The following has already been filed, and in
conditions shall be deemed to such case the condition of the
be a part of the bond whether bond shall be deemed to be
written therein or not: altered accordingly.
(a) That the trustee will
make and return to the court,
at such time as it may order, a Conditions of the trustee’s bond
true inventory of all the real .1 the trustee will make and
and personal estate belonging return to the court, at such time
to him as trustee, which at the as it may order, a true inventory
time of the making of such of all the real and personal
inventory shall have come to estate belonging to him as
his possession or knowledge; trustee, which at the time of the
(b) That he will manage making of such inventory shall
and dispose of all such estate, have come to his possession or
and faithfully discharge his knowledge;
trust in relation thereto, .2 he will manage and dispose of
according to law and the will of all such estate, and faithfully
the testator or the provisions of discharge his trust in relation
the instrument or order under thereto, according to law and
which he is appointed; the will of the testator or the

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100

provisions of the instrument or proper Court of First Instance


order under which he is may, upon petition of the
appointed; parties beneficially interested
.3 he will render upon oath at and after due notice to the
least once a year until his trust trustee and hearing, remove a
is fulfilled, unless he is excused trustee if such removal appears
therefrom in any year by the essential in the interests of the
court, a true account of the petitioners. The court may also,
property in his hands and of the after due notice to all persons
management and disposition interested, remove a trustee
thereof, and will render such who is insane or otherwise
other accounts as the court may incapable of discharging his
order; trust or evidently unsuitable
therefor. A trustee, whether
.4 at the expiration of his trust he appointed by the court or under
will settle his accounts in court a written instrument, may
and pay over and deliver all the resign his trust if it appears to
estate remaining in his hands, the court proper to allow such
or due from him on such resignation.
settlement, to the person or
persons entitled thereto. Grounds for removal of a trustee

But when the trustee is appointed .1 essential in the interests of the


as a successor to a prior trustee, petitioners (parties beneficially
the court may dispense with the interested)
making and return of an inventory, .2 insanity
if one has already been filed, and
.3 incapability of discharging his
in such case the condition of the
trust or
bond shall be deemed to be altered
accordingly. .4 evidently unsuitability [THIS IS
STRICT YOU CAN NOT JUST
Sec. 7. Appraisal.
REMOVE A TRUSTEE FOR
Compensation of trustee. When
NO REASON LIKE
an inventory is required to be
GUARDIANS]
returned by a trustee, the
estate and effects belonging to Sec. 9. Proceedings for sale
the trust shall be appraised and or encumbrance of trust estate.
the court may order one or When the sale or encumbrance
more inheritance tax appraisers of any real or personal estate
to assist in the appraisement. held in trust is necessary or
The compensation of the expedient, the court having
trustee shall be fixed by the jurisdiction of the trust may, on
court, if it be not determined in petition and after due notice
the instrument creating the and hearing, order such sale or
trust. encumbrance to be made, and
the reinvestment and
Sec. 8. Removal or
application of the proceeds
resignation of trustee. The

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101

thereof in such manner as will adopter to improve his/her


best effect the objects of the status to that of legitimacy;
trust. The petition, notice, (d) A person of legal age if,
hearing, order of sale or prior to the adoption, said
encumbrance, and record of person has been consistently
proceedings, shall conform as considered and treated by the
nearly as may be to the adopter(s) as his/her own child
provisions concerning the sale since minority;
or encumbrance by guardians
of the property of minors or (e) A child whose adoption
other wards. has been previously rescinded;
or
(f) A child whose biological
or adoptive parent(s) has died:
Provided, That no proceedings
shall be initiated within six (6)
months from the time of death
E. Adoption of said parent(s).
cf RA 8552: Domestic (DAA) and The following may be adopted
RA 8043: Inter-Country (ICA) domestically
Adoptions Acts
.1 minor who has been
1. Who may be administratively or judicially
Adopted [BATMAN declared available for adoption;
LOL] .2 legitimate child of one spouse
by the other spouse;
a. Domestic
Adoption (Sec. 8 .3 illegitimate child by a qualified
adopter to improve his/her
DAA) status to that of legitimacy;
Sec. 8. Who May Be .4 anyone who has been
Adopted. — The following may consistently considered and
be adopted: treated by the adopter as his
(a) Any person below child since minority
eighteen (18) years of age who .5 child whose adoption has been
has been administratively or previously rescinded; or
judicially declared available for
adoption; .6 a child whose biological or
adoptive parent has died
(b) The legitimate
son/daughter of one spouse by No proceedings shall be initiated
the other spouse; within 6 months from the death of
said parent.
(c) An illegitimate
son/daughter by a qualified

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b. Inter-country (a) The jurisdictional facts;


Adoption (Sec. 8 (b) The qualifications of
and 3 [f]ICA) the adopter;
Sec. 8. Who May be Adopted. (c) That the adopter is not
- Only a legally free child may disqualified by law;
be the subject of inter-country (d) The name, age, and
adoption. xxx residence of the person to be
Sec. 3. Definition of Terms. - adopted and of his relatives or
As used in this Act, the term of the persons who have him
under their care;
f) Legally-free child means a
child who has been voluntarily (e) The probable value and
or involuntarily committed to character of the estate of
the Department, in accordance the person to be adopted.
with the Child and Youth cf Sec. 7 DAA
Welfare Code.
Sec. 7. Who May Adopt. — The
2. Rule 99: Adoption following may adopt:
and Custody of (a) Any Filipino citizen of legal
age, in possession of full civil
Minors capacity and legal rights, of good
Sec. 1. Venue. A person moral character, has not been
desiring to adopt another or convicted of any crime involving
moral turpitude, emotionally and
have the custody of a minor psychologically capable of caring
shall present his petition to the for children, at least sixteen (16)
Court of First Instance of the years older than the
province, or the municipal or adoptee, and who is in a position
justice of the peace court of the to support and care for his/her
city or municipality in which he children in keeping with the means
of the family. The requirement of
resides. sixteen (16) year difference
In the City of Manila, the between the age of the adopter
proceedings shall be instituted and adoptee may be waived
when the adopter is the
in the Juvenile and Domestic
biological parent of the
Relations Court. adoptee, or is the spouse of
Venue of adoption proceedings the adoptee's parent;
.1 RTC of the prospective adopted (b) Any alien possessing the same
qualifications as above stated for
.2 In the City of Manila – Juvenile Filipino nationals: Provided, That
and Domestic Relations Court. his/her country has diplomatic
relations with the Republic of the
Sec. 2. Contents of petition. Philippines, that he/she has been
The petition for adoption shall living in the Philippines for at least
contain the same allegations three (3) continuous years prior to
the filing of the application for
required in a petition for adoption and maintains such
guardianship, to wit: residence until the adoption

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103

decree is entered, that he/she has cf Sec. 9 ICA


been certified by his/her
diplomatic or consular office or .3 Sec. 9. Who May Adopt. - An
any appropriate government alien or a Filipino citizen
agency that he/she has the legal permanently residing abroad
capacity to adopt in his/her
may file an application for inter-
country, and that his/her
government allows the adoptee to country adoption of a Filipino
enter his/her country as his/her child if he/she: [spouses must
adopted son/daughter: Provided, jointly adopt (de Leon: no
Further, That the requirements on exceptions)
residency and certification of the
alien's qualification to adopt in
his/her country may be waived for a) is at least twenty-seven (27)
the following: years of age and at least sixteen
(i) a former Filipino citizen who (16) years older than the child to
seeks to adopt a relative within the be adopted, at the time of
fourth (4th) degree of application unless the adoptor is
consanguinity or affinity; or the parent by nature of the child to
be adopted or the spouse of such
(ii) one who seeks to adopt the parent:
legitimate son/daughter of his/her
Filipino spouse; or b) if married, his/her spouse must
jointly file for the adoption;
(iii) one who is married to a
Filipino citizen and seeks to adopt c) has the capacity to act and
jointly with his/her spouse a assume all rights and
relative within the fourth (4th) responsibilities of parental
degree of consanguinity or affinity authority under his national laws,
of the Filipino spouse; or and has undergone the appropriate
counseling from an accredited
(c) The guardian with respect to counselor in his/her country;
the ward after the termination of
the guardianship and clearance of d) has not been convicted of a
his/her financial accountabilities. crime involving moral turpitude;
Husband and wife shall jointly e) is eligible to adopt under his/her
adopt, except in the following national law;
cases: f) is in a position to provide the
(i) if one spouse seeks to adopt the proper care and support and to
legitimate son/daughter of the give the necessary moral values
other; or and example to all his children,
including the child to be adopted;
(ii) if one spouse seeks to adopt
his/her own illegitimate g) agrees to uphold the basic
son/daughter: Provided, However, rights of the child as embodied
that the other spouse has signified under Philippine laws, the U.N.
his/her consent thereto; or Convention on the Rights of the
Child, and to abide by the rules
(iii) if the spouses are legally and regulations issued to
separated from each other. implement the provisions of this
In case husband and wife jointly Act;
adopt, or one spouse adopts the h) comes from a country with
illegitimate son/daughter of the whom the Philippines has
other, joint parental authority shall diplomatic relations and whose
be exercised by the spouses. government maintains a similarly

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104

authorized and accredited agency .b Philippine resident for at


and that adoption is allowed under least 3 continuous years
his/her national laws; and
prior to the filing of the
i) possesses all the qualifications application for adoption until
and none of the disqualifications
the adoption decree is
provided herein and in other
applicable Philippine laws. entered
Who may adopt domestically .c has been certified by his
diplomatic or consular office
.1 The guardian with respect to or any appropriate
the ward after the termination government agency that
of the guardianship and
clearance of his financial )1 he has the legal
accountabilities. capacity to adopt in his
country
.2 Qualifications for all non-
guardian adopter )2 his government allows
the adoptee to enter his
.a legal age country as his adopted
.b in possession of full civil child
capacity and legal rights .d Residency and certification
.c good moral character may be waived for the
following:
.d not been convicted of any
crime involving moral )1 a former Filipino who
turpitude seeks to adopt a relative
within the 4th degree of
.e emotionally and
consanguinity or affinity;
psychologically capable of
or
caring for children
)2 one who seeks to adopt
.f at least 16 years older than
the legitimate child of his
the adoptee; may be waived
Filipino spouse; or
when the adopter is
)3 one who is married to
)1 the biological parent of
a Filipino and seeks to
the adoptee, or
adopt jointly with his
)2 the spouse of the spouse a relative within
adoptee's parent; the 4th degree of
.g in a position to support and consanguinity or affinity
care for his/her children in of the Filipino spouse
keeping with the means of GR: In domestic adoption, husband
the family and wife shall jointly adopt
.3 Additional qualifications for Exceptions:
non-guardian aliens
.1 spouse seeks to adopt the
.a His country has diplomatic legitimate child of the other; or
relations with the Philippines

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105

.2 spouse seeks to adopt his own .10 agrees to uphold the basic
illegitimate child: Provided, rights of the child as embodied
However, that the other spouse under
has signified his consent .a Philippine laws
.3 spouses are legally separated .b the U.N. Convention on the
from each other. Rights of the Child
In case husband and wife jointly .c the rules and regulations
adopt, or one spouse adopts the issued to implement the
illegitimate child of the other, joint provisions of the ICA;
parental authority shall be
exercised by the spouses. .11 comes from a country
Qualifications of inter-country .a with whom the Philippines
adopter has diplomatic relations and
.1 non-Philippine resident .b whose government maintains
a similarly authorized and
.2 at least 27 years old accredited agency
.3 at least 16 years older than the .c whose laws allow adoption
child to be adopted, unless the
adoptor is the biological parent .12 possesses all the
or the spouse of such parent: qualifications and none of the
disqualifications provided
.4 spouses must jointly adopt (de herein and in other applicable
Leon: no exceptions) Philippine laws.
.5 capacity to act and assume all de Leon: Note that in domestic
rights and responsibilities of adoption, there are exceptiosn to
parental authority under his the rule that spouses must jointly
national laws adopt. In inter-country adoption,
.6 has undergone the appropriate spouses must always adopt jointly,
counseling from an accredited NO EXCEPTIONS.
counselor in his country; Sec. 3. Consent to adoption.
.7 has not been convicted of a There shall be filed with the
crime involving moral petition a written consent to
turpitude; the adoption signed by xxx each
of its (the child’s) known living
.8 eligible to adopt under his
national law; parents who is not insane or
hopelessly intemperate or has
.9 in a position to provide the not abandoned such child, or if
proper care and support and to there are no such parents by
give the necessary moral values the general guardian or
and example to all his children, guardian ad litem of the child,
including the child to be or if the child is in the custody
adopted; of an orphan asylum, children's
home, or benevolent society or

Remedial Law Reviewer Mark de Leon, JD 2001


106

person, by the proper officer or )2 is not hopelessly


officers of such asylum, home, intemperate or
or society, or by such person; )3 has not abandoned
but if the child is illegitimate such child
and has not been recognized,
the consent of its father to the .b legal guardian, or
adoption shall not be required. .c proper government
If the person to be adopted instrumentality which has
is of age, only his or her legal custody
consent and that of the spouse, .3 legitimate and adopted children
if any, shall be required. of the adopter and adoptee at
cf Sec. 9 DAA least 10 years old
Sec. 9. Whose Consent is .4 illegitimate children, at least 10
Necessary to the Adoption. — After years old, of the adopter if
being properly counseled and living with said adopter and the
informed of his/her right to give or
withhold his/her approval of the
latter's spouse,
adoption, the written consent of .5 spouse of the adopter and
the following to the adoption is adopted
hereby required:
(a) The adoptee, if ten (10) years of If the adopted is illegitimate and
age or over; has not been recognized, the
(b) The biological parent(s) of the
consent of its father to the
child, if known, or the legal adoption shall not be required. If
guardian, or the proper the person to be adopted is of age,
government instrumentality which only his or her consent and that of
has legal custody of the child; the spouse, if any, shall be
(c) The legitimate and adopted required. (de Leon: it is unclear
sons/daughters, ten (10) years of whether these provisions have
age or over, of the adopter(s) and been repealed by the Domestic
adoptee, if any;
Adoption Act).
(d) The illegitimate
sons/daughters, ten (10) years of de Leon: Note that there are no
age or over, of the adopter if living specific consent requirements
with said adopter and the latter's in the Inter-country Adoption
spouse, if any; and
Acts. It is submitted that the
(e) The spouse, if any, of the consent requirements under
person adopting or to be adopted. the Domestic Adoption Act
Consents required in domestic applies as well.
adoption Sec. 4. Order for hearing. If
.1 adoptee at least 10 years old the petition and consent filed
are sufficient in form and
.2 either (in order of priority)
substance, the court, by an
.a biological parents who order reciting the purpose of
)1 is not insane the petition, shall fix a date and
place for the hearing thereof,

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107

which date shall not be more The case study on the adoptee
than six (6) months after the shall establish that he/she is
legally available for adoption and
entry of the order, and shall that the documents to support this
direct that a copy of the order fact are valid and authentic.
be published before the Further, the case study of the
hearing at least once a week for adopter(s) shall ascertain his/her
genuine intentions and that the
three (3) successive weeks in
adoption is in the best interest of
some newspaper of general the child.
circulation published in the
The Department shall intervene on
province, as the court shall behalf of the adoptee if it finds,
deem best. after the conduct of the case
studies, that the petition should be
cf Secs. 10-12 DAA
denied. The case studies and other
Sec. 10. Hurried Decisions. — In relevant documents and records
all proceedings for adoption, the pertaining to the adoptee and the
court shall require proof that the adoption shall be preserved by the
biological parent(s) has been Department.
properly counseled to prevent
Sec. 12. Supervised Trial Custody.
him/her from making hurried
— No petition for adoption shall be
decisions caused by strain or
finally granted until the adopter(s)
anxiety to give up the child, and to
has been given by the court a
sustain that all measures to
supervised trial custody period for
strengthen the family have been
at least six (6) months within
exhausted and that any prolonged
which the parties are expected to
stay of the child in his/her own
adjust psychologically and
home will be inimical to his/her
emotionally to each other and
welfare and interest.
establish a bonding relationship.
Sec. 11. Case Study. — No petition During said period, temporary
for adoption shall be set for parental authority shall be vested
hearing unless a licensed social in the adopter(s). [dry run]
worker of the Department, the
The court may motu proprio or
social service office of the local
upon motion of any party reduce
government unit, or any child-
the trial period if it finds the same
placing or child-caring agency has
to be in the best interest of the
made a case study of the adoptee,
adoptee, stating the reasons for
his/her biological parent(s), as well
the reduction of the period.
as the adopter(s), and has
However, for alien adopter(s),
submitted the report and
he/she must complete the six (6)-
recommendations on the matter to
month trial custody except for
the court hearing such petition.
those enumerated in Sec. 7 (b) (i)
At the time of preparation of the (ii) (iii) [alien adopters whose
adoptee's case study, the residency and certification
concerned social worker shall requirements may be waived].
confirm with the Civil Registry the
If the child is below seven (7)
real identity and registered name
years of age and is placed with the
of the adoptee. If the birth of the
prospective adopter(s) through a
adoptee was not registered with
pre-adoption placement authority
the Civil Registry, it shall be the
issued by the Department, the
responsibility of the concerned
prospective adopter(s) shall enjoy
social worker to ensure that the
all the benefits to which biological
adoptee is registered.
parent(s) is entitled from the date

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the adoptee is placed with the The Rules of Court shall apply in
prospective adopter(s). case of adoption by judicial
proceedings.
cf Secs. 10-15 ICA
Sec. 11. Family
Sec. 10. Where to File Application. Selection/Matching. - No child
- An application to adopt a Filipino shall be matched to a foreign
child shall be filed either with the adoptive family unless it is
Philippine Regional Trial Court satisfactorily shown that the child
having jurisdiction over the child, cannot be adopted locally. The
or with the Board, through an clearance, as issued by the Board,
intermediate agency, whether with the copy of the minutes of the
governmental or an authorized and meetings, shall form part of the
accredited agency, in the country records of the child to be adopted.
of the prospective adoptive When the Board is ready to
parents, which application shall be transmit the Placement Authority
in accordance with the to the authorized and accredited
requirements as set forth in the inter-country adoption agency and
implementing rules and all the travel documents of the
regulations to be promulgated by child are ready, the adoptive
the Board. parents, or any one of them, shall
The application shall be supported personally fetch the child in the
by the following documents Philippines.
written and officially translated in Sec. 12. Pre-adoptive Placement
English. Costs. - The applicant(s) shall bear
a) Birth certificate of applicant(s); the following costs incidental to
the placement of the child;
b) Marriage contract, if married,
and divorce decree, if applicable; a) The cost of bringing the child
from the Philippines to the
c) Written consent of their residence of the applicant(s)
biological or adoptive children abroad, including all travel
above ten (10) years of age, in the expenses within the Philippines
form of sworn statement; and abroad; and
d) Physical, medical and b) The cost of passport, visa,
psychological evaluation by a duly medical examination and
licensed physician and psychological evaluation required,
psychologist; and other related expenses.
e) Income tax returns or any Sec. 13. Fees, Charges and
document showing the financial Assessments. - Fees, charges, and
capability of the applicant(s); assessments collected by the
f) Police clearance of applicant(s); Board in the exercise of its
functions shall be used solely to
g) Character reference from the process applications for inter-
local church/minister, the country adoption and to support
applicant's employer and a the activities of the Board.
member of the immediate
community who have known the Sec. 14. Supervision of Trial
applicant(s) for at least five (5) Custody. - The governmental
years; and agency or the authorized and
accredited agency in the country
h) Recent postcard-size pictures of of the adoptive parents which filed
the applicant(s) and his immediate the application for inter-country
family; adoption shall be responsible for
the trial custody and the care of

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the child. It shall also provide order has been published as


family counseling and other directed, that the allegations of
related services. The trial custody
shall be for a period of six (6) the petition are true, and that
months from the time of it is a proper case for adoption
placement. Only after the lapse of and the petitioner or
the period of trial custody shall a petitioners are able to bring up
decree of adoption be issued in the and educate the child properly,
said country a copy of which shall
be sent to the Board to form part the court shall adjudge that
of the records of the child. thenceforth the child is freed
During the trial custody, the
from all legal obligations of
adopting parent(s) shall submit to obedience and maintenance
the governmental agency or the with respect to its natural
authorized and accredited agency, parents, except the mother
which shall in turn transmit a copy when the child is adopted by
to the Board, a progress report of
the child's adjustment. The her husband, and is, to all legal
progress report shall be taken into intents and purposes, the child
consideration in deciding whether of the petitioner or petitioners,
or not to issue the decree of and that its surname is
adoption.
changed to that of the
The Department of Foreign Affairs petitioner or petitioners. The
shall set up a system by which adopted person or child shall
Filipino children sent abroad for
trial custody are monitored and
thereupon become the legal
checked as reported by the heir of his parents by adoption
authorized and accredited inter- and shall also remain the legal
country adoption agency as well as heir of his natural parents. In
the repatriation to the Philippines case of the death of the
of a Filipino child whose adoption
has not been approved. adopted person or child, his
parents and relatives by nature,
Sec. 15. Executive Agreements. -
The Department of Foreign Affairs,
and not by adoption, shall be
upon representation of the Board, his legal heirs.
shall cause the preparation of
cf Secs. 13 and 16-18 DAA
Executive Agreements with
countries of the foreign adoption Sec. 13. Decree of Adoption. — If,
agencies to ensure the legitimate after the publication of the order
concurrence of said countries in of hearing has been complied with,
upholding the safeguards provided and no opposition has been
by this Act. interposed to the petition, and
after consideration of the case
de Leon: Note that adoption studies, the qualifications of the
and estate proceedings are adopter(s), trial custody report and
required to be published, the evidence submitted, the court
unlike in guardianship is convinced that the petitioners
are qualified to adopt, and that the
proceedings. adoption would redound to the
Sec. 5. Hearing and best interest of the adoptee, a
decree of adoption shall be
judgment. Upon satisfactory
entered which shall be effective as
proof in open court on the date of the date the original petition
fixed in the order that such was filed. This provision shall also

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apply in case the petitioner(s) dies .3 adoptee shall be considered the


before the issuance of the decree legitimate child of the adopters
of adoption to protect the interest
of the adoptee. The decree shall .4 In legal and intestate
state the name by which the child succession, the adopters and
is to be known.
the adoptee shall have
Sec. 16. Parental Authority. — reciprocal rights of succession
Except in cases where the without distinction from
biological parent is the spouse of
the adopter, all legal ties between legitimate filiation.
the biological parent(s) and the de Leon: Note that even under
adoptee shall be severed and the
same shall then be vested on the
the Domestic Adoption Act, the
adopter(s). adopted can not represent the
adopter in terms of
Sec. 17. Legitimacy. — The
adoptee shall be considered the successional rights.
legitimate son/daughter of the Sec. 6. Proceedings as to
adopter(s) for all intents and
purposes and as such is entitled to
child whose parents are
all the rights and obligations separated. Appeal. When
provided by law to legitimate husband and wife are divorced
sons/daughters born to them or living separately and apart
without discrimination of any kind. from each other, and the
To this end, the adoptee is entitled
to love, guidance, and support in question as to the care,
keeping with the means of the custody, and control of a child
family. or children of their marriage is
Sec. 18. Succession. — In legal and brought before a Court of First
intestate succession, the Instance by petition or as an
adopter(s) and the adoptee shall incident to any other
have reciprocal rights of proceeding, the court, upon
succession without distinction
from legitimate filiation. However, hearing the testimony as may
if the adoptee and his/her be pertinent, shall award the
biological parent(s) had left a will, care, custody, and control of
the law on testamentary each such child as will be for
succession shall govern. [NO
RIGHT OF REPRESENTATION IN its best interest, permitting
ADOPTION] the child to choose which
Effects of Adoption parent it prefers to live with if
it be over ten years of age,
.1 The decree shall state the name unless the parent so chosen be
by which the child is to be unfit to take charge of the child
known. by reason of moral depravity,
.2 all legal ties between the habitual drunkenness,
biological parents and the incapacity, or poverty. If, upon
adoptee shall be severed and such hearing, it appears that
the same shall then be vested both parents are improper
on the adopters, except in cases persons to have the care,
where the biological parent is custody, and control of the
the spouse of the adopter child, the court may either

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111

designate the paternal or No child under seven years of age


maternal grandparent of the shall be separated from the
mother, unless the court finds
child, or his oldest brother or compelling reasons to order
sister, or some reputable and otherwise.
discreet person to take charge Art. 214. In case of death, absence
of such child, or commit it to or unsuitability of the parents,
any suitable asylum, children's substitute parental authority shall
home, or benevolent society. be exercised by the surviving
The court may in conformity grandparent. In case several
survive, the one designated by the
with the provisions of the Civil court, taking into account the
Code order either or both same consideration mentioned in
parents to support or help the preceding article, shall
support said child, irrespective exercise the authority. (355a)
of who may be its custodian, Sec. 7. Proceedings as to
and may make any order that is vagrant or abused child. When
just and reasonable permitting the parents of any minor child
the parent who is deprived of are dead, or by reason of long
its care and custody to visit the absence or legal or physical
child or have temporary disability have abandoned it, or
custody thereof. Either parent cannot support it through
may appeal from an order made vagrancy, negligence, or
in accordance with the misconduct, or neglect or
provisions of this section. No refuse to support it, or treat it
child under seven years of age with excessive harshness or
shall be separated from its give it corrupting orders,
mother, unless the court finds counsels, or examples, or cause
there are compelling reasons or allow it to engage in
therefor. [kaso hi abu and begging, or to commit offenses
omar] against the law, the proper
cf Arts. 63 (3), 213 and 214 FC Court of First Instance, upon
petition filed by some reputable
Art. 63. The decree of legal
separation shall have the following resident of the province setting
effects: forth the facts, may issue an
(3) The custody of the minor
order requiring such parents to
children shall be awarded to the show cause, or, if the parents
innocent spouse, subject to the are dead or cannot be found,
provisions of Article 213 of this requiring the fiscal of the
Code; and province to show cause, at a
Art. 213. In case of separation of time and place fixed in the
the parents, parental authority order, why the child should not
shall be exercised by the parent
designated by the Court. The
be taken from its parents, if
Court shall take into account all living; and if upon the hearing
relevant considerations, especially it appears that the allegations
the choice of the child over seven of the petition are true, and
years of age, unless the parent that it is for the best interest of
chosen is unfit. (n)

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the child, the court may make If the court finds that the
an order taking it from its disclosure of the information to a
third person is necessary for
parents, if living; and purposes connected with or arising
committing it to any suitable out of the adoption and will be for
orphan asylum, children's the best interest of the adoptee,
home, or benevolent society or the court may merit the necessary
information to be released,
person to be ultimately placed,
restricting the purposes for which
by adoption or otherwise, in a it may be used.
home found for it by such
asylum, children's home,
society or person.
Sec. 8. Service of judgment.
Final orders or judgments 3. Rule 100:
under this rule shall be served Rescission and
by the clerk upon the civil
Revocation of
registrar of the city or
municipality wherein the court Adoption
issuing the same is situated. Sec. 1. Who may file
cf Secs. 14-15 DAA petition; grounds. xxx (repealed
by Sec. 19, Domestic Adoption Act)
Sec. 14. Civil Registry Record. —
An amended certificate of birth cf Sec. 19 DAA
shall be issued by the Civil
Sec. 19. Grounds for Rescission of
Registry, as required by the Rules
Adoption. — Upon petition of the
of Court, attesting to the fact that
adoptee, with the assistance of the
the adoptee is the child of the
Department if a minor or if over
adopter(s) by being registered
eighteen (18) years of age but is
with his/her surname. The original
incapacitated, as
certificate of birth shall be
guardian/counsel, the adoption
stamped "cancelled" with the
may be rescinded on any of the
annotation of the issuance of an
following grounds committed by
amended birth certificate in its
the adopter(s): (a) repeated
place and shall be sealed in the
physical and verbal maltreatment
civil registry records. The new
by the adopter(s) despite having
birth certificate to be issued to the
undergone counseling; (b) attempt
adoptee shall not bear any
on the life of the adoptee; (c)
notation that it is an amended
sexual assault or violence; or (d)
issue.
abandonment and failure to
Sec. 15. Confidential Nature of comply with parental obligations.
Proceedings and Records. — All
Adoption, being in the best
hearings in adoption cases shall be
interest of the child, shall not be
confidential and shall not be open
subject to rescission by the
to the public. All records, books,
adopter(s). However, the
and papers relating to the
adopter(s) may disinherit the
adoption cases in the files of the
adoptee for causes provided in
court, the Department, or any
Article 919 of the Civil Code.
other agency or institution
participating in the adoption Grounds for revocation of adoption
proceedings shall be kept strictly (can only be filed by adopted)
confidential.

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113

.1 repeated physical and verbal adopter(s) and the adoptee to each


maltreatment by the adopters other shall be extinguished.
despite having undergone The court shall order the Civil
counseling; Registrar to cancel the amended
certificate of birth of the adoptee
.2 attempt on the life of the and restore his/her original birth
adoptee; certificate.

.3 sexual assault or violence; or Succession rights shall revert to its


status prior to adoption, but only
.4 abandonment and failure to as of the date of judgment of
comply with parental judicial rescission. Vested rights
acquired prior to judicial
obligations. rescission shall be respected.
The adopter can not rescind the All the foregoing effects of
adoption, but he may disinherit the rescission of adoption shall be
adopted. without prejudice to the penalties
imposable under the Penal Code if
Sec. 2. Order to answer. The the criminal acts are properly
court in which the petition is proven.
filed shall issue an order Sec. 4. Service of judgment.
requiring the adverse party to A certified copy of the
answer the petition within judgment rendered in
fifteen (15) days from receipt of accordance with the next
a copy thereof. The order and a preceding section shall be
copy of the petition shall be served upon the civil registrar
served on the adverse party in concerned, within thirty (30)
such manner as the court may days from rendition thereof,
direct. who shall forthwith enter the
Sec. 3. Judgment. If upon action taken by the court in the
trial, on the day set therefor, register.
the court finds that the Sec. 5. Time within which to
allegations of the petition are file petition. A minor or other
true, it shall render judgment incapacitated person must file
ordering the rescission or the petition for rescission or
revocation of the adoption, with revocation of adoption within
or without costs, as justice the five (5) years following his
requires. majority, or if he was
cf Sec. 20 DAA incompetent at the time of the
Sec. 20. Effects of Rescission. — If adoption, within the five (5)
the petition is granted, the years following the recovery
parental authority of the adoptee's from such incompetency.
biological parent(s), if known, or
the legal custody of the The adopter must also file
Department shall be restored if the the petition to set aside the
adoptee is still a minor or adoption within five (5) years
incapacitated. The reciprocal from the time the cause or
rights and obligations of the
causes giving rise to the

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rescission or revocation of the proceeding for adoption. It is an


same took place. entirely new one, dependent on
facts which have happened since
Time to file petition to rescind
the decree of adoption. The venue
adoption
of this new case, applying Rule 99
.1 by the minor or incompetent – in a suppletory character, is also
within 5 years from majority, or the place of the residence of the
if he was incompetent at the petitioner.
time of the adoption, within 5
The doctrine that no court has the
years from the recovery from
power to interfere by injunction
such incompetency.
with the judgments or decrees of a
.2 by adopter – within 5 years court of coordinate jurisdiction is
from the cause not applicable. The validity and
effectiveness of the decree of
4. Cases
adoption is not in question and
De la Cruz v. De la Cruz, 12 SCRA such decree is not sought to be
47 (1964) The proceedings for enjoined nor its execution
adoption and revocation of restrained but what is sought is its
adoption are separate and distinct revocation because of
from each other. In the first what circumstances subsequently
is determined is the propriety of supervening which, under the law,
establishing the relationship of render the continuation of the
parent and child between two adoptive relationship unjustified
persons not so related by nature. and impractical.
In the other proceeding, either the
de Leon: Note that in de la Cruz, it
adopting parent or the adopted
was the adopter’s residence that
seeks to severe the relationship
was considered in determining
previously established, and the
venue. At that time, the adopter
inquiry refers to the truth of the
can petition for rescission of
grounds upon which the revocation
adoption. Now, it is only the
is sought. Once the proper court
adopted who can petition for
has granted a petitioner for
rescission. Hence, it is always the
adoption and the decree has
residence of the adopted that is
become final the proceedings is
considered in determining venue
terminated and closed. §1 Rule 99
of rescission of adoption
designates the venue of a
proceedings.
proceeding for adoption, which is
the place where the petitioner Nieto v. Magat, 136 SCRA 533
resides, but is silent with respect (1985)
to the venue of proceeding for Facts: Couple in Guam (husband
rescission and revocation of works there) seeks to adopt
adoption (Rule 100). A subsequent nephew in the Philippines. Lower
petition for revocation of the court denies because the couple
adoption is neither a continuation are non-residents and trial custody
of nor an incident in the could not be had.

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Held: The fact that the prospective adoption court has the power to
adopters reside temporarily in a delegate reception of evidence to
foreign country does not disqualify the clerk of court.
them from adopting a minor child.
F. Rule 101:
Besides, the law specifically Hospitalization of
authorizes the court, either upon
Insane Persons
its own or on petitioner's motion,
to dispense with the trial custody if Sec. 1. Venue. Petition for
it finds that it is to the best commitment. A petition for the
interest of the child. In this case, commitment of a person to a
the Minister of Social Services and hospital or other place for the
Development suggests that trial insane may be filed with the
custody is unnecessary because Court of First Instance of the
the child was already comfortable province where the person
with the couple and the couple was alleged to be insane is found.
capable of disciplining the child. The petition shall be filed by
Bobanovic v. Montes, 142 SCRA the Director of Health in the all
485 (1986) cases where, in his opinion,
such commitment is for the
Facts: Order granting adoption public welfare, or for the
became final. Adopting parents welfare of said person who, in
applied for travel clearance with his judgment, is insane, and
the MSSD for the adopted to travel such person or the one having
with them to Australia. MSSD charged of him is opposed to
refused on the ground that it was his being taken to a hospital or
not notified of the petition nor of other place for the insane.
the order granting adoption.
Venue for petition for the
Held: The fact that the order commitment of an insane person to
setting the petition for adoption a hospital – RTC of the province
was published is ground to where the person alleged to be
presume that MSSD had insane is found
knowledge of the adoption
proceedings and could have The petition shall be filed by the
intervened. Director of Health

Monserrate v. CA, 178 SCRA 153 Sec. 2. Order for hearing. If


(1989) There is no existing law or the petition filed is sufficient in
rule that requires notice to the form and substance, the court,
Solicitor General as a condition by an order reciting the
precedent or as a jurisdicitional purpose of the petition, shall fix
requirement for the valid exercise a date for the hearing thereof,
of the court’s jurisdiction in an and copy of such order shall be
adoption case. MTCs and RTCs served on the person alleged to
have concurrent jurisdiction on be insane, and to the one
adoption cases (de Leon: cf with having charge of him, or on
the new adoption RAs). The such of his relatives residing in

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the province or city as the in the City of Manila the fiscal


judge may deem proper. The of the city, to prepare the
court shall furthermore order petition for the Director of
the sheriff to produce the Health and represent him in
alleged insane person, if court in all proceedings arising
possible, on the date of the under the provisions of this
hearing. rule.
de Leon: Note that there is no G. Habeas Corpus
publication requirement for [APPLIES TO BOTH
hospitalization of insane persons.
CIVIL AND CRIMINAL
Sec. 3. Hearing and CASES]
judgment. Upon satisfactory
proof, in open court on the date 1. Rule 102
fixed in the order, that the Sec. 1. To what habeas
commitment applied for is for corpus extends. Except as
the public welfare or for the otherwise expressly provided by
welfare of the insane person, law, the writ of habeas corpus
and that his relatives are shall extend to all cases of
unable for any reason to take illegal confinement or
proper custody and care of him, detention by which any person
the court shall order his is deprived of his liberty, or by
commitment to such hospital or which the rightful custody of
other place for the insane as any person is withheld from the
may be recommended by the person entitled thereto. [no
Director of Health. The court basis from imprisonment,
shall make proper provisions serious illegal detention /
for the custody of property or unlawful arrest] [if there is
money belonging to the insane basis, violation of speedy trial]
until a guardian be properly
appointed. Scope of habeas corpus – all cases
of illegal confinement or detention
Sec. 4. Discharge of insane. by which
When, in the opinion of the
Director of Health, the person .1 any person is deprived of his
ordered to be committed to a liberty, or
hospital or other place for the .2 the rightful custody of any
insane is temporarily or person is withheld from the
permanently cured, or may be person entitled thereto.
released without danger he may
Sec. 2. Who may grant the
file the proper petition with the
writ. The writ of habeas corpus
Court of First Instance which
may be granted by the Supreme
ordered the commitment.
Court, or any member thereof,
Sec. 5. Assistance of fiscal in on any day and at any time, or
the proceeding. It shall be the by the Court of Appeals or any
duty of the provincial fiscal or member thereof in the

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instances authorized by law, relief it is intended, or by some


and if so granted it shall be person on his behalf, and shall
enforceable anywhere in the set forth:
Philippines, and may be made (a) That the person in
returnable before the court or whose behalf the application is
any member thereof, or before made is imprisoned or
the Court of First Instance, or restrained of his liberty;
any judge thereof for the
hearing and decision on the (b) The officer or name of
merits. It may also be granted the person by whom he is so
by a Court of First Instance, or imprisoned or restrained; or, if
a judge thereof, on any day and both are unknown or uncertain,
at any time, and returnable such officer or person may be
before himself, enforceable described by an assumed
only within his judicial district. appellation, and the person
[file it in court, if the person is who is served with the writ
detained WITH BASIS, di shall be deemed the person
pwede ang HC] intended;
Who may grant the writ of habeas (c) The place where he is
corpus so imprisoned or restrained, if
known;
.1 enforceable anywhere in the
Philippines, and may be made (d) A copy of the
returnable before the court or commitment or cause of
any member thereof, or before detention of such person, if it
the RTC, or any judge thereof can be procured without
for the hearing and decision on impairing the efficiency of the
the merits. remedy; or, if the imprisonment
or restraint is without any legal
.a the SC or any member
authority, such fact shall
thereof – on any day and at
appear.
any time, or
Requisites of application for the
.b the CA or any member
writ of habeas corpus
thereof – in the instances
authorized by law .1 petition signed and verified
either by the party for whose
.2 enforceable only within the
relief it is intended, or by some
judicial district and returnable
person on his behalf
before himself – the RTC, or a
judge thereof, on any day and at .2 shall set forth:
any time .a the person in whose behalf
Sec. 3. Requisites of the application is made is
application therefor. imprisoned or restrained of
Application for the writ shall be his liberty;
by petition signed and verified .b the officer or name of the
either by the party for whose person by whom he is so

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imprisoned or restrained; or, be held to authorize the


if both are unknown or discharge of a person charged
uncertain, such officer or with or convicted of an offense
person may be described by in the Philippines, or of a
an assumed appellation, and person suffering imprisonment
the person who is served under lawful judgment.
with the writ shall be
Grounds for denial of the writ of
deemed the person intended;
habeas corpus
.c the place where he is so
.1 the person alleged to be
imprisoned or restrained, if
restrained of his liberty is in the
known;
custody of an officer
.d a copy of the commitment or
.a under process issued by a
cause of detention of such
court or judge or
person, if it can be procured
without impairing the .b by virtue of a judgment or
efficiency of the remedy; or, order of a court of record,
if the imprisonment or and either
restraint is without any legal )1 the court or judge had
authority, such fact shall jurisdiction to issue the
appear. process, render the
Sec. 4. When writ not judgment, or make the
allowed or discharge order, or
authorized. If it appears that )2 the jurisdiction
the person alleged to be appears after the writ is
restrained of his liberty is in allowed, or
the custody of an officer )3 mere informality or
under process issued by a defect in the process,
court or judge or by virtue judgment, or order
of a judgment or order of a .2 the petitioner is charged with
court of record, and that or convicted of an offense in the
the court or judge had Philippines, or of a person
jurisdiction to issue the suffering imprisonment under
process, render the lawful judgment.
judgment, or make the Sec. 5. When the writ must
order, the writ shall not be be granted and issued. A court
or judge authorized to grant
allowed; or if the jurisdiction
the writ must, when a petition
appears after the writ is
therefor is presented and it
allowed, the person shall not be
appears that the writ ought to
discharged by reason of any
issue, grant the same forthwith,
informality or defect in the
and immediately thereupon the
process, judgment, or order.
clerk of the court shall issue
Nor shall anything in this rule
the writ under the seal of the

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119

court; or in case of emergency, preserving a copy on which to


the judge may issue the writ make return of service. If that
under his own hand, and may person cannot be found, or has
depute any officer or person to not the prisoner in his custody,
serve it. then the service shall be made
on any other person having or
Sec. 6. To whom writ
exercising such custody.
directed, and what to require.
In case of imprisonment or Sec. 8. How writ executed
restraint by an officer, the writ and returned. The officer to
shall be directed to him, and whom the writ is directed shall
shall command him to have the convey the person so
body of the person restrained imprisoned or restrained, and
of his liberty before the court named in the writ, before the
or judge designated in the writ judge allowing the writ, or, in
at the time and place therein case of his absence or
specified. In case of disability, before some other
imprisonment or restraint by a judge of the same court, on the
person not an officer, the writ day specified in the writ,
shall be directed to an officer, unless, from sickness or
and shall command him to take infirmity of the person directed
and have the body of the person to be produced, such person
restrained of his liberty before cannot, without danger, be
the court or judge designated brought before the court or
in the writ at the time and judge; and the officer shall
place therein specified, and to make due return of the writ,
summon the person by whom together with the day and the
he is restrained then and there cause of the caption and
to appear before said court or restraint of such person
judge to show the cause of the according to the command
imprisonment or restraint. thereof.
Sec. 7. How prisoner Sec. 9. Defect of form. No
designated and writ served. The writ of habeas corpus can be
person to be produced should disobeyed for defect of form, if
be designated in the writ by his it sufficiently appears
name, if known, but if his name therefrom in whose custody or
is not known he may be under whose restraint the party
otherwise described or imprisoned or restrained is
identified. The writ may be held and the court or judge
served in any province by the before whom he is to be
sheriff or other proper officer, brought.
or by a person deputed by the Sec. 10. Contents of return.
court or judge. Service of the When the person to be
writ shall be made by leaving produced is imprisoned or
the original with the person to restrained by an officer, the
whom it is directed and

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person who makes the return the prisoner is not produced,


shall state therein, and in other and in all other cases unless
cases the person in whose the return is made and signed
custody the prisoner is found by a sworn public officer in his
shall state, in writing to the official capacity.
court or judge before whom the Sec. 12. Hearing on return.
writ is returnable, plainly and Adjournments. When the writ is
unequivocably: returned before one judge, at a
(a) Whether he has or has time when the court is in
not the party in his custody or session, he may forthwith
power, or under restraint; adjourn the case into the court,
there to be heard and
(b) If he has the party in
determined. The court or judge
his custody or power, or under
before whom the writ is
restraint, the authority and the
returned or adjourned must
true and whole cause thereof,
immediately proceed to hear
set forth at large, with a copy of
and examine the return, and
the writ, order, execution, or
such other matters as are
other process, if any, upon
properly submitted for
which the party is held;
consideration, unless for good
(c) If the party is in his cause shown the hearing is
custody or power or is adjourned, in which event the
restrained by him, and is not court or judge shall make such
produced, particularly the order for the safekeeping of the
nature and gravity of the person imprisoned or
sickness or infirmity of such restrained as the nature of the
party by reason of which he case requires. If the person
cannot, without danger, be imprisoned or restrained is not
brought before the court or produced because of his
judge; alleged sickness or infirmity,
(d) If he has had the party the court or judge must be
in his custody or power, or satisfied that it is so grave that
under restraint, and has such person cannot be
transferred such custody or produced without danger,
restraint to another, before proceeding to hear and
particularly to whom, at what dispose of the matter. On the
time, for what cause, and by hearing the court or judge shall
what authority such transfer disregard matters of form and
was made. technicalities in respect to any
warrant or order of
Sec. 11. Return to be signed commitment of a court or
and sworn to. The return or officer authorized to commit by
statement shall be signed by law.
the person who makes it; and
shall also be sworn to by him if Sec. 13. When the return
evidence, and when only a plea.

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If it appears that the prisoner proceedings, together with the


is in custody under a warrant of bond, forthwith to the proper
commitment in pursuance of court. If such bond is not so
law, the return shall be filed, the prisoner shall be
considered prima facie recommitted to confinement.
evidence of the cause of If it appears that the prisoner was
restraint [no questions asked lawfully committed, and is plainly
derecho na di pwede ang HC]; and specifically charged in the
but if he is restrained of his warrant of commitment with an
liberty by any alleged private offense punishable by
authority, the return shall be
considered only as a plea of the .1 death – he shall not be released,
facts therein set forth, and the discharged, or bailed
party claiming the custody .2 less than death – he may be
must prove such facts. either
Sec. 14. When person .a recommitted to
lawfully imprisoned imprisonment or
recommitted, and when let to
bail. If it appears that the .b admitted to bail – he shall
prisoner was lawfully file a bond conditioned for
committed, and is plainly and his appearance before the
specifically charged in the court where the offense is
warrant of commitment with an properly cognizable to abide
offense punishable by death, he its order or judgment; if such
bond is not so filed, the
shall not be released,
prisoner shall be
discharged, or bailed. If he is
recommitted to confinement.
lawfully imprisoned or
restrained on a charge of Sec. 15. When prisoner
having committed an offense discharged if no appeal. When
not so punishable, he may be the court or judge has
recommitted to imprisonment examined into the cause of
or admitted to bail in the caption and restraint of the
discretion of the court or judge. prisoner, and is satisfied that
If he be admitted to bail, he he is unlawfully imprisoned or
shall forthwith file a bond in restrained, he shall forthwith
such sum as the court or judge order his discharge from
deems reasonable, considering confinement, but such
the circumstances of the discharge shall not be effective
prisoner and the nature of the until a copy of the order has
offense charged, conditioned been served on the officer or
for his appearance before the person detaining the prisoner.
court where the offense is If the officer or person
properly cognizable to abide its detaining the prisoner does not
order or judgment; and the desire to appeal, the prisoner
court or judge shall certify the shall be forthwith released.

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[WHAT IF HE FILES party aggrieved the sum of one


INFORMATION LOL] thousand pesos, to be
recovered in a proper action,
Sec. 16. Penalty for refusing
notwithstanding any colorable
to issue writ, or for disobeying
pretense or variation in the
the same. A clerk of a court
warrant of commitment, and
who refuses to issue the writ
may also be punished by the
after allowance thereof and
court or judge granting writ as
demand therefor, or a person to
for contempt. [Person can file
whom a writ is directed, who
for serious illegal detention?
neglects or refuses to obey or
vong navaro]
make return of the same
according to the command Sec. 18. When prisoner may
thereof, or makes false return be removed from one custody
thereof, or who, upon demand to another. A person committed
made by or on behalf of the to prison, or in custody of an
prisoner, refuses to deliver to officer, for any criminal matter,
the person demanding, within shall not be removed therefrom
six (6) hours after the demand into the custody of another
therefor, a true copy of the officer unless by legal process,
warrant or order of or the prisoner be delivered to
commitment, shall forfeit to an inferior officer to carry to
the party aggrieved the sum of jail, or, by order of the proper
one thousand pesos, to be court or judge, be removed
recovered in a proper action, from one place to another
and may also be punished by within the Philippines for trial,
the court or judge as for or in case of fire, epidemic,
contempt. insurrection, or other necessity
or public calamity; and a
Sec. 17. Person discharged
person who, after such
not to be given imprisoned. A
commitment, makes, signs, or
person who is set at liberty
countersigns any order for such
upon a writ of habeas corpus
removal contrary to this
shall not be again imprisoned
section, shall forfeit to the
for the same offense unless by
party aggrieved the sum of one
the lawful order or process of a
thousand pesos, to be
court having jurisdiction of the
recovered in a proper action.
cause or offense; and a person
who knowingly, contrary to the Sec. 19. Record of writ, fees
provisions of this rule, and costs. The proceedings
recommits or imprisons, or upon a writ of habeas corpus
causes to be committed or shall be recorded by the clerk
imprisoned, for the same of the court, and upon the final
offense, or pretended offense, disposition of such proceedings
any person so set at liberty, or the court or judge shall make
knowingly aids or assists such order as to costs as the
therein, shall forfeit to the case requires. The fees of

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officers and witnesses shall be effectively as if they had been


included in the costs taxed, but imprisoned.
no officer or person shall have In fact, it is the duty of a court or
the right to demand payment in judge to grant a writ of habeas
advance of any fees to which he corpus if there is evidence that
is entitled by virtue of the within the court's jurisdiction a
proceedings. When a person person is unjustly imprisoned or
confined under color of restrained of his liberty, though no
proceedings in a criminal case application be made therefor.
is discharged, the costs shall be
taxed against the Republic of The mere fact that the officer to
the Philippines, and paid out of whom the writ is addressed has
its Treasury; when a person in illegally parted with the custody of
custody by virtue or under a person prior to the filing of the
color of proceedings in a civil application for the writ, is no
case is discharged, the costs reason why the writ should not
shall be taxed against him, or issue. He was bound to use every
against the person who signed effort to get the person back. He
the application for the writ, or must do much more than write
both, as the court shall direct. letters for the purpose. He must
advertise, and even if necessary
2. Cases himself go after the person, and do
Gonzales v. Viola, 61 Phil. 824 everything that mortal man could
(1935) Where the petitioner is out do in the matter. The court would
on bail, habeas corpus is not only accept clear proof of an
available. The restraint of liberty absolute impossibility by way of
which would justify the issuance of excuse.
the writ must be more than a mere An officer's failure to produce the
moral restraint; it must be actual body of a person in obedience to a
or physical. There must be writ of habeas corpus, without
actual confinement or the legal excuse therefore, when he
present means of enforcing it. has power to do so, constitutes
Villavicencio v. Lukban, 39 Phil. contempt.
778 (1919) Imprisonment is not Velasco v. CA, 245 SCRA 677
the only restraint of liberty for (1995) Though habeas corpus may
which a writ of habeas corpus may be available when the arrest was
issue. Deprivation of freedom of illegal, supervening events may
action is enough. The forcible bar release, e.g. filing of a
taking of these women from complaint or information for the
Manila by officials of that city, who offense for which the accused is
handed them over to other parties, detained. [JUST LIKE IN
who deposited them in a distant PRACTICE REFER TO FB POST]
region, deprived these women of
de Leon: Note that under the 2000
freedom of locomotion just as
Rules of Criminal Procedure, an
application for bail is not a waiver

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of objections to the illegality of his order; except for clerical or


arrest (Rule 114, Sec. 26). In this typographical errors and
sense, Velasco was modified. change of first name or
Alimpoos v. CA, 106 SCRA 159 nickname which can be
(1981) Where the petitioner was corrected or changed by
arrested by virtue of a warrant was concerned city or municipal
irregularly issued, the remedy is civil registrar or consul general
not habeas corpus, but to move to in accordance with the
set aside the warrant of arrest or provisions of this Act and its
to petition for a reinvestigation. implementing rules and
The only respondent in a habeas regulations.
corpus case is the person who has GR: No entry in a civil register
legal custody of the petitioner. The shall be altered without a judicial
complaining witnesses in the order
criminal case are not proper
Exceptions: city or municipal civil
respondents in a habeas corpus
registrar or consul general can
case, neither can they appeal.
alter
Lastly, there can be no damages
awarded in habeas corpus .1 clerical or typographical errors
proceedings. and
H. Correction of .2 change of first name or
clerical errors or nickname
change name Sec. 2. Definitions of Terms.
— As used in this Act, the
1. Extra-judicial (RA following terms shall mean:
9048, approved 22
(1) "City or municipal civil
March 2001) registrar" [registrar is person]
This act claims to amend Arts. 376 refers to the head of the local
and 412 NCC civil registry office of the city
Art. 376. No person can change his
or municipality, as the case may
name or surname without judicial be, who is appointed as such by
authority. the city or municipal mayor in
Art. 412. No entry in a civil accordance with the provisions
register shall be changed or of existing laws.
corrected, without a judicial order.
(n) [MEANING PWEDE NA (2) "Petitioner" refers to a
WITHOUT JUDICIAL ORDER] natural person filing the
petition and who has direct and
Section 1. Authority to
personal interest in the
Correct Clerical or
correction of a clerical or
Typographical Error and
typographical error in an entry
Change of First Name or
or change of first name or
Nickname. — No entry in a civil
nickname in the civil register.
register shall be changed or
corrected without a judicial

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(3) "Clerical or of the local civil registry


typographical error" refers to a offices, Philippine Consulates
mistake committed in the and of the Office of the Civil
performance of clerical work in Register General.
writing, copying, transcribing (5) "Civil registrar general"
or typing an entry in the civil refers to the administrator of
register that is harmless and the National Statistics Office
innocuous, such as misspelled which is the agency mandated
name or misspelled place of to carry out and administer the
birth or the like, which is provision of laws on civil
visible to the eyes or obvious to registration.
the understanding, and can be
corrected or changed only by (6) "First name" refers to a
reference to other existing name or nickname given to a
record or records: Provided, person which may consist of
however, That no correction one or more names in addition
must involve the change of to the middle and last names.
nationality, age, status or sex of Sec. 3. Who may File the
the petitioner. Petition and Where. — Any
Requisites for a clerical or person having direct and
typographical error personal interest in the
correction of a clerical or
.1 a mistake committed in the
typographical error in an entry
performance of clerical work in
and/or change of first name or
writing, copying, transcribing
nickname in the civil register
or typing
may file, in person, a verified
.2 harmless and innocuous petition with the local civil
.3 visible to the eyes or obvious to registry office of the city or
the understanding municipality where the record
being sought to be corrected or
.4 can be corrected or changed changed is kept.
only by reference to other
existing record or records In case the petitioner has
already migrated to another
Can not be subject of correction - place in the country and it
change of would not be practical for such
.1 nationality party, in terms of
transportation expenses, time
.2 age and effort to appear in person
.3 status or before the local civil registrar
keeping the documents to be
.4 sex
corrected or changed, the
(4) "Civil register" refers to petition may be filed, in person,
the various registry books and with the local civil registrar of
related certificates and the place where the interested
documents kept in the archives party is presently residing or

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domiciled. The two (2) local his present residence or


civil registrars concerned will domicile
then communicate to facilitate .2 Philippine citizens presently
the processing of the petition. residing or domiciled abroad –
Citizens of the Philippines filed in person with the nearest
who are presently residing or Philippine Consulates.
domiciled in foreign countries Sec. 4. Grounds for Change
may file their petition, in of First Name or Nickname. —
person, with the nearest The petition for change of first
Philippine Consulates. name or nickname may be
The petitions filed with the allowed in any of the following
city or municipal civil registrar cases:
or the consul general shall be (1) The petitioner finds the
processed in accordance with first name or nickname to be
this Act and its implementing ridiculous, tainted with
rules and regulations. dishonor or extremely difficult
All petitions for the to write or pronounce;
correction of clerical or (2) The new first name or
typographical errors and/or nickname has been habitually
change of first names or and continuously used by the
nicknames may be availed of petitioner and he has been
only once. publicly known by the first
Requisites for a Petition to correct name or nickname in the
clerical error or change of 1st or community; or
nicknames (3) The change will avoid
.1 petitioner has direct and confusion.
personal interest in the Grounds for Change of First Name
alteration or Nickname
.2 filed in person .1 petitioner finds the first name
.3 verified petition or nickname to be
.4 with the local civil registry .a ridiculous
office of the city or municipality .b tainted with dishonor or
where the record being sought
to be altered is kept. .c extremely difficult to write or
pronounce;
.5 availed of only once.
.2 the new first name or nickname
Exceptions: When need not be filed has been
in person with local civil registrar
.a habitually and continuously
.1 migration to another place in used by the petitioner and
the country – filed in person
with the local civil registrar of

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.b publicly known by the first shall likewise be supported


name or nickname in the with the documents mentioned
community; or in the immediately preceding
.3 change will avoid confusion. paragraph. In addition, the
petition shall be published at
Sec. 5. Form and Contents of least once a week for two (2)
the Petition. — The petition consecutive weeks in a
shall be in the form of an newspaper of general
affidavit, subscribed and sworn circulation. Furthermore, the
to before any person authorized petitioner shall submit a
by law to administer oaths. The certification from the
affidavit shall set forth facts appropriate law enforcement
necessary to establish the agencies that he has no
merits of the petition and shall pending case or no criminal
show affirmatively that the record.
petitioner is competent to
testify to the matters stated. The petition and its
The petitioner shall state the supporting papers shall be filed
particular erroneous entry or in three (3) copies to be
entries which are sought to be distributed as follows: first copy
corrected and/or the change to the concerned city or
sought to be made. municipal civil registrar, or the
consul general; second copy to
The petition shall be the Office of the Civil Registrar
supported with the following General; and the third copy to
documents: the petitioner.
(1) A certified true machine Form and Contents of the Petition
copy of the certificate or of the
page or of the registry book .1 affidavit
containing the entry or entries .2 subscribed and sworn
sought to be corrected or .3 setting forth
changed;
.a facts necessary to establish
(2) At least two (2) public or the merits of the petition
private documents showing the
correct entry or entries upon .b show affirmatively that the
which the correction or change petitioner is competent to
shall be based; and testify to the matters stated
(3) other documents which .c the particular erroneous
the petitioner or the city or entry or entries which are
municipal civil registrar, or the sought to be corrected
consul general may consider and/or the change sought to
relevant and necessary for the be made.
approval of the petition. .4 accompanying documents
In case of change of first
name or nickname, the petition

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128

.a a certified true machine copy The city or municipal civil


of the certificate or of the registrar or the consul general
page or of the registry book shall act on the petition and
containing the entry or shall render a decision not
entries sought to be later than five (5) working days
corrected or changed; after the completion of the
.b at least 2 public or private posting and/or publication
documents showing the requirement. He shall transmit
correct entry or entries upon a copy of his decision together
which the correction or with the records of the
change shall be based; and proceedings to the Office of the
Civil Registrar General within
.c other documents which the five (5) working days from the
petitioner or the city or date of the decision.
municipal civil registrar, or
the consul general may Sec. 7. Duties and Powers of
consider relevant and the Civil Registrar General. —
necessary for the approval of The civil registrar general
the petition. shall, within ten (10) working
days from receipt of the
.5 for change of first name or decision granting a petition,
nickname exercise the power to impugn
.a publication such decision by way of an
objection based on the
.b certification from the
following grounds:
appropriate law enforcement
agencies that he has no (1) The error is not clerical
pending case or no criminal or typographical;
record. (2) The correction of an
Sec. 6. Duties of the City of entry or entries in the civil
Municipal Civil Registrar or the register is substantial or
Consul General. — The city or controversial as it effects the
municipal civil registrar or the civil status of a person; or
consul general to whom the (3) The basis used in
petition is presented shall changing the first name or
examine the petition and its nickname of a person does not
supporting documents. He shall fall under Section 4.
post the petition in a
conspicuous place provided for The civil registrar general
the purpose for ten (10) shall immediately notify the
consecutive days after he finds city or municipal civil registrar
the petition and its supporting or the consul general of the
documents sufficient in form action taken on the decision.
and substance. [SO MAY Upon receipt of the notice
PUBLICATION NA AT MAY thereof, the city or municipal
POSTING PA] civil registrar or the consul

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129

general shall notify the may either appeal the decision to


petitioner of such action. the civil registrar general or file
the appropriate petition with the
The petitioner may seek
proper court.
reconsideration with the civil
registrar general or file the Sec. 8. Payment of Fees. —
appropriate petition with the The city or municipal civil
proper court. registrar or the consul general
shall be authorized to collect
If the civil registrar general
reasonable fees as a condition
fails to exercise his power to
for accepting the petition. An
impugn the decision of the city
indigent petitioner shall be
or municipal registrar or of the
exempt from the payment of
consul general within the
the said fee.
period prescribed herein, such
decision shall become final and Sec. 9. Penalty Clause. — xxx
executory. Sec. 10. Implementing Rules
Where the petition is denied and Regulations. — xxx
by the city or municipal civil Sec. 11. Retroactivity
registrar or the consul general, Clause. — xxx
the petitioner may either
appeal the decision to the civil Sec. 12. Separability Clause.
registrar general or file the — xxx
appropriate petition with the Sec. 13. Repealing Clause. —
proper court. xxx
Grounds for impugning decision Sec. 14. Effectivitiy Clause.
.1 error is not clerical or — xxx
typographical 2. Judicial
.2 correction of an entry or entries
in the civil register is a. Change of Name
substantial or controversial as it 1) Rule 103
effects the civil status of a [adversarial,
person; or
aliens can
.3 no basis for changing the first petition too]
name or nickname
This rule implements Arts. 376 of
If the civil registrar general fails to the Civil Code. Note that this has
impugn the decision of the city or been modified by RA 9048.
municipal registrar or of the
Art. 376. No person can change his
consul general within the period
name or surname without judicial
prescribed herein, such decision authority.
shall become final and executory.
Sec. 1. Venue. A person
Where the petition is denied by the desiring to change his name
city or municipal civil registrar or shall present the petition to the
the consul general, the petitioner

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130

Court of First Instance of the Sec. 3. Order for hearing. If


province in which he resides, the petition filed is sufficient in
or, in the City of Manila, to the form and substance, the court,
Juvenile and Domestic by an order reciting the
Relations Court. [FILING MUST purpose of the petition, shall fix
BE FILED PERSONALLY BY a date and place for the
THE PETITIONER even if hearing thereof, and shall
signed by another] direct that a copy of the order
[requirements to be followed] be published before the
(if it affects the CIVIL STATUS hearing at least once a week for
of someone like different three (3) successive weeks in
surname, 108 applies not 103] some newspaper of general
Labayo-Rowe v. Republic / if does circulation published in the
not deny legitimacy = 103 Alfon v. province, as the court shall
Republic of the Philippines deem best. The date set for the
hearing shall not be within
thirty (30) days prior to an
election nor within four (4)
Venue of change of name months after the last
publication of the notice.
.1 RTC of province of residence of
petitioner for at leat the past 3 A petition for change of name
years should be published. / in extra, it is
the petition that is published
.2 Juvenile and Domestic Relations
Court, in the City of Manila Sec. 4. Hearing. Any
interested person may appear
Sec. 2. Contents of petition.
at the hearing and oppose the
A petition for change of name
petition. The Solicitor General
shall be signed and verified by
or the proper provincial or city
the person desiring his name
fiscal shall appear on behalf of
changed, or some other person
the Government of the
on his behalf, and shall set
Republic.
forth:
Sec. 5. Judgment. Upon
(a) That the petitioner has
satisfactory proof in open court
been a bona fide resident of the
on the date fixed in the order
province where the petition is
that such order has been
filed for at least three (3) years
published as directed and that
prior to the date of such filing;
the allegations of the petition
(b) The cause for which the are true, the court shall, if
change of the petitioner's name proper and reasonable cause
is sought; appears for changing the name
(c) The name asked for. of the petitioner, adjudge that
such name be changed in
The petition for change of name accordance with the prayer of
must be verified. the petition.

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131

Sec. 6. Service of judgment. birth and had been known under


Judgments or orders rendered the name of Leoncia San Roque.
in connection with this rule These allegations were duly
shall be furnished the civil proven during the hearing.
registrar of the municipality or Notwithstanding the imperfection
city where the court issuing the of language employed, the petition
same is situated, who shall was, in essence, one to secure
forthwith enter the same in the judicial authority for San Roque to
civil register. change her name from Lucia to
Leoncia — a petition which falls
2) Cases reasonably within the provisions of
San Roque v. Republic, 23 SCRA Rule 103. That the petition was
444 (1968) entitled one "to correct name in
the birth certificate of Leoncia San
The real name of a person is that
Roque" and prayed that San
given him in the Civil Register, not
Roque's name appearing in her
the name by which he was
birth certificate be corrected
baptized in his church or by which
accordingly did not necessarily
he has been known in the
make the petition fall under the
community, or which he has
provisions of Rule 108, because
adopted; that the only way to
even under the provisions of Rule
change that name legally is for the
103 the judgment or order
interested party "to file the special
rendered in connection with said
proceedings embodied in Rule
Rule shall be furnished the Civil
103." This is, substantially, what
Registrar of the municipality or
San Roque did.
city where the Court who issued
The petition was entitled "to the same is situated, who shall
correct name in the birth forthwith enter the same in the
certificate of Leoncia San Roque," civil register.
but the body of the petition
Republic v. Aquino, 90 SCRA 172
affirmatively alleged that while her
(1979) The petition for change of
name appearing on her birth
name shall set forth inter alia, the
certificate on file was Lucia San
name asked for. The requirement
Roque, she "since her birth .., has
is mandatory and compliance
been using and has always been
therewith is essential, for it is by
known as Leoncia San Roque and
such means that the court acquires
not as Lucia San Roque, even in
jurisdiction. The failure to include
the performance of important civil
the name sought to be adopted in
actions like marriage". Essentially,
the title of the petition, and
therefore, the petition admitted
consequently in the notices
that San Roque's real name was
published in the newspaper is a
Lucia San Roque which was her
substantial jurisdictional infirmity.
true name because it was the one
For publication to be effective, it
appearing in the Civil Register, but
must give a correct information. To
that this notwithstanding, she had
inform, the publication should
been using continuously since

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132

recite, among others, the following having continuously used and


facts: (a) the name or names of been known since childhood by
applicant; (b) the cause for which a Filipino name, unaware of his
the change of name is sought; and alien parentage; or (5) a
(c) the new name asked for. sincere desire to adopt a
Rotaquio v. Republic, 22 SCRA 280 Filipino name to erase signs of
(1968) When the change appears former alienage, all in good
to be necessary to avoid confusion, faith and not to prejudice
and there is no claim or pretense anybody.
that petitioner seeks the change to The general rule is that a change
achieve some unlawful purpose, of name should not be permitted if
the petition must be granted. it will give a false impression of
Republic v. Marcos, G.R. L-31065, family relationship to another
Feb. 15, 1990, 182 SCRA 223 where none actually exists.
(1990) For a publication of a The petition for change of name
petition for a change of name to be must be filed by the person
valid, the title thereof should desiring to change his/her name,
include, first, his real name, and even if it may be signed and
second, his aliases, if any. The verified by some other person in
omission of her other alias — his behalf. In this case, however,
"Mary Pang" — in the captions of the petition was filed by Pang Cha
the court's order and of the Quen not by May Sia. Hence, only
petition defeats the purpose of the May Sia herself, alias Manman
publication. In view of that defect, Huang, alias Mary Pang, when she
the trial court did not acquire shall have reached the age of
jurisdiction over the subject of the majority, may file the petition to
proceedings. All aliases of the change her name. The decision to
applicant must be set forth in change her name, the reason for
the title of the published petition, the change, and the choice of a
for the omission of any of such new name and surname shall be
aliases, would be fatal to the hers alone to make. It must be her
petition even if such other aliases personal decision. No one else may
are mentioned in the body of the make it for her.
petition.
Republic v. Belmonte, 158 SCRA
The following have been 173 (1988)
considered valid grounds for a
Facts: 16 year old girl, assisted by
change of name: (1) when the
her mother, wanted to have her
name is ridiculous,
name changed from Anita Po to
dishonorable, or extremely
Veronica Pao. She also sought to
difficult to write or pronounce;
have her father’s name appearing
(2) when the change results as
as Po Yu changed to Pao Yu and
a legal consequence, as in
her mother’s name recorded as
legitimation; (3) when the Pakiat Chan changed to Helen
change will avoid confusion; (4) Chan.

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133

Held: There was no showing that authorization to revert to her


all interested persons were maiden name. A petition for
notified of the petition. Petition judicial confirmation to revert to
dismissed for not being sufficient such maiden name is a superfluity.
in form and substance. NO ERROR It is not covered by Rule 103 on
in the name of father also 108 is Change of Name or its special
different from 103 requisites (e.g. inclusion in the
title the names by which the
A petition for a change of name
petitioner has been known).
and the correction of entries in
the civil registry may be joined b. Cancellation or
in the same proceeding, Correction of
provided all the requirements
Entries in the
in both proceedings must be
met. Civil Registry
Republic v. Zosa, 165 SCRA 292 1) Rule 108
(1988) The title of the petition for [change of
change of name, as published, surname to
should include 1) the applicant’s change status
real name, 2) his aliases or other
here, if no
names, if any, and 3) the name
sought to be adopted, even if the acknowledgme
data are found in the body of the nt it should be
petition. The body of the petition, denied]
as published, should contain 1) the [annulment of
name or names of the applicant, marriages as
and 2) the cause for te changed
name, and 3) the new name asked
well]
for. Failure include the name This rule implements Arts. 412 of
sought to be adopted in the title of the Civil Code. Note that this has
the petition, nor in the title or been modified by RA 9048.
caption of the notices published in Art. 412. No entry in a civil
the newspapers renders the trial register shall be changed or
court without jurisdiction to hear corrected, without a judicial order.
and determine the petition. (n)

Yasin v. Judge, Shari'a District Sec. 1. Who may file


Court, 241 SCRA 606 (1995) A petition. Any person interested
married woman has the option, in any act, event, order or
not an obligation, to use her decree concerning the civil
husband’s name or surname. A status of persons which has
judicial authorization is not been recorded in the civil
necessary. When the marriage is register, may file a verified
terminated (e.g. annulled or petition for the cancellation or
Muslim divorce) the former wife correction of any entry relating
need not seek judicial thereto, with the Court of First
Instance of the province where

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134

the corresponding civil registry .6 judgments declaring marriages


is located. void from the beginning
Requisites for a petition for .7 legitimations
cancellation or correction of .8 adoptions
entries in the civil registry
.9 acknowledgments of natural
.1 petitioner is interested in any children
act, event, order or decree
concerning the civil status of .10 naturalization
persons which has been .11 election, loss or recovery of
recorded in the civil register citizenship
.2 verified petition .12 civil interdiction
.3 RTC of the province where the .13 judicial determination of
civil registry is located. filiation
Sec. 2. Entries subject to .14 voluntary emancipation of a
cancellation or correction. minor; and
Upon good and valid grounds,
the following entries in the civil .15 changes of name.
register may be cancelled or Sec. 3. Parties. When
corrected: (a) births; (b) cancellation or correction of an
marriages; (c) deaths; (d) legal entry in the civil register is
separations; (e) judgments of sought, the civil registrar and
annulments of marriage; (f) all persons who have or claim
judgments declaring marriages any interest which would be
void from the beginning; (g) affected thereby shall be made
legitimations; (h) adoptions; (i) parties to the proceeding.
acknowledgments of natural
Sec. 4. Notice and
children; (j) naturalization (k)
publication. Upon the filing of
election, loss or recovery of
the petition, the court shall, by
citizenship (l) civil interdiction;
an order, fix the time and place
(m) judicial determination of
for the hearing of the same,
filiation; (n) voluntary
and cause reasonable notice
emancipation of a minor; and
thereof to be given to the
(a) changes of name.
persons named in the petition.
Entries subject to cancellation or The court shall also cause the
correction order to be published once a
.1 births week for three (3) consecutive
weeks in a newspaper of
.2 marriages general circulation in the
.3 deaths province.
.4 legal separations Publication is required in a
petition for cancellation or
.5 judgments of annulments of
marriage

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correction of entries in the civil de Castro: Rule 108 requires


registry. publication and inclusion as
parties all persons or who claim
Sec. 5. Opposition. The civil
any interest which would be
registrar and any person having
affected by the alteration. This
or claiming any interest under
makes the action in rem, which
the entry whose cancellation or
can not be described as
correction is sought may,
“summary.” Not being summary,
within fifteen (15) days from
substantial corrections may be had
notice of the petition, or from
under Rule 108. (Note: Justice
the last date of publication of
Escolin concurred in the main
such notice, file his opposition
opinion)
thereto.
Yu v. Civil Registrar, 121 SCRA
Sec. 6. Expediting
873 (1983) Where the correction
proceedings. The court in
sought is substantial, e.g. affects
which the proceeding is
the names and identities of the
brought may make orders
persons, correction in the civil
expediting the proceedings,
registry may be allowed where the
and may also grant preliminary
person concerned is made a party
injunction for the preservation
and given the opportunity to be
of the rights of the parties
heard.
pending such proceedings.
Republic v. Bartolome, 138 SCRA
Sec. 7. Order. After hearing, 442 (1985) If the changes sought
the court may either dismiss in the civil registry are substantial,
the petition or issue an order Rule 108 is not the proper remedy.
granting the cancellation or
correction prayed for. In either Republic v. Valencia, 141 SCRA
case, a certified copy of the 462 (1986) Only clerical errors in
judgment shall be served upon the civil registry may be corrected
the civil registrar concerned by summary procedure.
who shall annotate the same in Substantial errors can be
his record. corrected only in an adversarial
proceeding. However, where the
2) Cases trial court has conducted
Republic v. Medina, 119 SCRA 270 proceedings where all relevant
(1982) [This ruling has been facts have been fully and properly
abrogated by Republic v. Valencia] developed, where opposing
Art. 412 NCC and its implementing counsel have been given
rule, Rule 108, allows only for opportunity to demolish the
correction of clerical or innocuous opposite party's case, and where
mistakes in the Civil Registry. the evidence has been thoroughly
Subtantial corrections may not be weighed and considered, the suit
had in a summary procedure such or proceeding is adversarial. If all
as Rule 108. the procedural requirements of
Rule 108 (civil registrar and
interested persons made parties

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136

and notified, publication, 412 include only corrections of


opposition, hearing) have been mistakes that are clerical in
followed, a petition for correction nature. If the purpose of the
and/or cancellation of entries in petition is merely to correct the
the record of birth even if filed and clerical errors which are visible to
conducted under Rule 108 can no the eye or obvious to the
longer be described as "summary". understanding, the court may,
When an opposition to the petition under a summary procedure, issue
is filed either by the Civil Registrar an order for the correction of the
or any interested person and the mistake. However, substantial and
opposition is actively prosecuted, controversial alterations can only
the proceedings thereon become be allowed after appropriate
adversary proceedings. Hence, adversary proceedings wherein all
even substantial changes may be the parties who may be affected by
ordered in a Rule 108 proceeding. the entries are notified or
(Note: Justice Escolin again represented and evidence is
concurred in the main, and only, submitted to prove the allegations
opinion) of the complaint, and proof to the
contrary admitted. (Labayo-Rowe
Requirements for an adversarial
v. Republic, 168 SCRA 294 [1988]).
proceeding
Batbatan v. Office of Local Civil
1. Presence of opposing parties
Registrar, 118 SCRA 745 (1982) If
2. notice to both parties the civil registry entry is contrary
3. relevant facts have been fully to law, its correction is merely a
and properly developed clerical error which undoubtedly
may be corrected via Rule 108.
4. opposing counsel was given an
opportunity to rebut the Chiao Ben Lim v. Zosa, 146 SCRA
opposite party’s case 366 (1986) Art. 412 NCC does not
say that it applies only to clerical
5. evidence has been thoroughly errors and that the proedure to be
weighed and considered used is summary in nature.
6. compliance with the publication Republic v. Flojo, 152 SCRA 550
requirement (1987) Rule 108 requires notice to
de Leon: Note that in Valencia, the all persons who may have any
petition seeking substantial interest in the change sought to be
changes under Rule 108 was affected and that they be made
allowed because the proceedings parties to the proceeding. Rule
became adversarial after an 108 is therefore not summary but
opposition was filed. In Bartolome, adversarial.
the proceedings remained Republic v. CA, 255 SCRA 99
summary because no opposition (1996)
was filed.
Facts: Spouses Caranto filed a
It has been held that the petition for the adoption of Midael
corrections contemplated in Article along with a prayer to correct his

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name to “Michael.” Solicitor Held: Rule 108 allows for only


opposed on the ground that the clerical errors. The proceedings
petition was for adoption, not for were not adversarial. Substantial
correction of the civil registry. corrections should be in an
ordinary civil action.
Held: The correction was not
properly included in the petition Roxas-del Castillo: The SC was
for adoption. A separate case categorical that by its very nature,
under Rule 108 should be filed to Rule 108 is summary and not
correct the spelling of the name. adversarial. So even if you comply
with all the requisites of
Roxas-del Castillo: This case goes
adversarial proceedings, Rule 108
against the principle of multiplicity
is still not the proper remedy in
of suits because the adoption
substantial corrections in the civil
proceedings would have
registry. But I still think the
necessarily caused a change in the
correct doctrine is the Valencia
surname of the adopted. The
ruling.
spouses merely wanted to correct
the misspelling along with the de Leon: To summarize, if the
change in the surname. change sought is that of the name,
and there are 3 remedies
Leonor v. C.A., 256 SCRA 69
(1996) .1 change of first name or
nickname – petition to the local
Facts: There was in fact a
civil registrar via RA 9048
marriage, but the marriage turned
(specific grounds only and
out to be void. [VOIDABLE]
availed only once)
Held: A separate action for
.2 change of clerical errors in the
declaration of nullity of marriage
typing of the name – petition to
should be filed.
the RTC via Rule 108
de Leon: In Valencia, the
.3 change of name – petition to the
change was allowed because
RTC via Rule 103
there was no marriage at all
[CASE DOES NOT INVOLVE If the change sought is clerical
THE ISSUE OF MARRIAGE]. In errors in other entries in the civil
Leonor, there was a marriage registry
which was allegedly void, hence .1 petition to the local civil
before a change may be registrar via RA 9048
effected, a separate action for
declaration of nullity should .2 petition to the RTC via Rule 108
have been filed. If the change sought is substantial,
Republic v. Labrador, 305 SCRA then the only remedy is an
438 (1999) adversarial proceeding. However,
jurisprudence is unclear whether
Facts: The aunt filed the action on Rule 108 is an adversarial
behalf of the child. Not all proceeding. Medina (1982) ruled
indispensable parties was notified. that only clerical errors may be

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corrected. Valencia (1986) ruled for the dangers feared in Medina.


that if an opposition is filed and Besides, as Justice Abad Santos
pursued, then Rule 108 becomes said in his dissent in Medina, the
adversarial and substantial court has kept ruling that Art. 412
changes may be ordered. Labrador and Rule 108 is not the remedy for
(1999) returned to Medina and substantial changes, but did not
categorically ruled that only rule what the proper remedy is.
clerical errors may be corrected
under Rule 108, but it did not rule I. Rule 104: Voluntary
on the effect of a filing of an Dissolution of
opposition. The problem is Corporations
Valencia did not expressly abandon Sec. 1. Where, by whom and
Medina. Labrador did not on what showing application
expressly abandon Valencia nor did made. xxx (repealed by
it affirm Medina. I submit that Corporation Code)
Valencia is the correct ruling, more
so with the advent of RA 9048. It Sec. 2. Order thereupon for
seems RA 9048 provides for an filing objections. xxx (repealed
extrajudicial remedy for the by Corporation Code)
clerical errors that Medina and Sec. 3. Hearing, dissolution,
Labrador ruled to be covered and disposition of assets.
under Rule 108. For Rule 108 to be Receiver. xxx (repealed by
of any use, it should cover even Corporation Code)
substantial changes. I submit that
publication, even without Sec. 4. What shall constitute
subsequent filing of an opposition record. xxx (repealed by
by anyone, is enough to transform Corporation Code)
a Rule 108 proceeding into an J. Rule 105: Judicial
adversarial proceeding, otherwise
Approval of Voluntary
we would-be oppositors can easily
defeat a proposed substantial Recognition of Minor
change by simply not filing an Natural Children /
opposition. Furthermore, the different from
nature of a clerical error is that it compulsory action for
is obvious to the eye. If truly only recognition
clerical errors are allowed under
Rule 108, how can there be
[SURNAME OF
oppositors? The mere cognizance FATHER ALLOWED
by the court of the standing of an use if acknowledged]
oppositor is a ruling that the Sec. 1. Venue. Where judicial
alteration sought is not innocuous. approval of a voluntary
If a court recognizes an opposition, recognition of a minor natural
then it also rules that the change child is required, such child or
sought is not innocuous. Rule 108 his parents shall obtain the
should be the proper remedy even same by filing a petition to that
for substantial changes.
Publication and allowance of

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139

effect with the Court of First heirs] [beyond 5 years barred


Instance of the province in forever]
which the child resides. In the The action already commenced by
City of Manila, the petition the child shall survive
notwithstanding the death of ether
shall be filed in the Juvenile
or both of the parties. (268a)
and Domestic Relations Court.
Art. 175. Illegitimate children may
Venue of petitions for judicial establish their illegitimate filiation
approval of a voluntary recognition in the same way and on the same
of a minor natural child evidence as legitimate children.
The action must be brought within
.1 RTC of the province of the same period specified in
petitioner’s residence Article 173, except when the
.2 Juvenile and Domestic Relations action is based on the second
paragraph of Article 172, in which
Court in the City of Manila case the action may be brought
cf Arts 172-173 and 175 FC during the lifetime of the alleged
parent. (289a)
Art. 172. The filiation of legitimate
children is established by any of Sec. 2. Contents of petition.
the following: The petition for judicial
(1) The record of birth appearing approval of a voluntary
in the civil register or a final recognition of a minor natural
judgment; or child shall contain the
(2) An admission of legitimate following allegations:
filiation in a public document or a
private handwritten instrument
(a) The jurisdictional facts;
and signed by the parent (b) The names and
concerned. [dapat buhay ang
residences of the parents who
parent ditto sa par 2]
acknowledged the child, or of
In the absence of the foregoing either of them, and their
evidence, the legitimate filiation
shall be proved by: compulsory heirs, and the
person or persons with whom
(1) The open and continuous
possession of the status of a
the child lives;
legitimate child; or (c) The fact that the
(2) Any other means allowed by recognition made by the parent
the Rules of Court and special or parents took place in a
laws. (265a, 266a, 267a) statement before a court of
Art. 173. The action to claim record or in an authentic
legitimacy may be brought by the writing, copy of the statement
child during his or her lifetime and
or writing being attached to the
shall be transmitted to the heirs
should the child die during petition.
minority or in a state of insanity. In Sec. 3. Order for hearing.
these cases, the heirs shall
have a period of five years Upon the filing of the petition,
within which to institute the the court, by an order reciting
action. [If child did not die as the purpose of the same, shall
minor or state of insanity fix the date and place for the
action will not propser by the

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hearing thereof, which date shall be to enter the same in


shall not be more than six (6) the register.
months after the entry of the
order, and shall, moreover,
K.Rule 106: Constitution
cause a copy of the order to be of Family Home
served personally or by mail cf Art. 153 FC
upon the interested parties,
Art. 153. The family home is
and published once a week for deemed constituted on a house
three (3) consecutive weeks, in and lot from the time it is occupied
a newspaper or newspapers of as a family residence. From the
general circulation in the time of its constitution and so long
as any of its beneficiaries actually
province. resides therein, the family home
Petition for judicial approval of continues to be such and is exempt
voluntary recognition of natural from execution, forced sale or
attachment except as hereinafter
children must be published. provided and to the extent of the
Sec. 4. Opposition. Any value allowed by law. (223a)
interested party must, within Sec. 1. Who may constitute.
fifteen (15) days from service, xxx (repealed by Art. 153 of the
or from the last date of Family Code)
publication, of the order
Sec. 2. Contents of petition.
referred to in the next
xxx (repealed by Art. 153 of the
preceding section, file his
Family Code)
opposition to the petition,
stating the grounds or reasons Sec. 3. Notice and
therefor. publication. xxx (repealed by Art.
153 of the Family Code)
Sec. 5. Judgment. If, from
the evidence presented during Sec. 4. Objection and date of
the hearing, the court is hearing. xxx (repealed by Art.
satisfied that the recognition of 153 of the Family Code)
the minor natural child was Sec. 5. Order. xxx (repealed by
willingly and voluntarily made Art. 153 of the Family Code)
by the parent or parents
concerned, and that the Sec. 6. Registration of order.
recognition is for the best xxx (repealed by Art. 153 of the
interest of the child, it shall Family Code)
render judgment granting L. Rule 107: Absentees
judicial approval of such
recognition. Stages of absence
Sec. 6. Service of judgment .1 provisional absence
upon civil registrar. A copy of .2 declaration of absence
the judgment rendered in
accordance with the preceding .3 presumption of death
section shall be served upon 1. Provisional Absence
the civil registrar whose duty it

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141

Sec. 1. Appointment of Venue of petition for appointment


representative. When a person of representative
disappears from his domicile, .1 RTC of province where
his whereabouts being absentee resided
unknown, and without having
left an agent to administer his .2 Juvenile and Domestic Relations
property, or the power Court in the City of Manila
conferred upon the agent has Who may petition for appointment
expired, any interested party, of a representative – any
relative or friend, may petition interested party, relative or friend
the Court of First Instance of
the place where the absentee Requisites for appointment of
resided before his representative
disappearance for the .1 person disappears from his
appointment of a person to domicile
represent him provisionally in
.2 his whereabouts unknown
all that may be necessary. In
the City of Manila, the petition .3 either
shall be filed in the Juvenile .a without leaving an agent or
and Domestic Relations Court.
[Negotiorum gestio] .b power conferred upon the
agent has expired
cf Arts. 381-382 NCC
Art. 381. When a person
2. Declaration of
disappears from his domicile, his Absence [for
whereabouts being unknown, and remarriage as well]
without leaving an agent to
administer his property, the judge, (CONNECT WITH
at the instance of an interested ART 1389)
party, a relative, or a friend, may
appoint a person to represent him Sec. 2. Declaration of
in all that may be necessary. absence; who may petition.
This same rule shall be observed After the lapse of two (2) years
when under similar circumstances from his disappearance and
the power conferred by the without any news about the
absentee has expired. (181a) absentee or since the receipt of
Art. 382. The appointment referred the last news, or of five (5)
to in the preceding article having years in case the absentee has
been made, the judge shall take
the necessary measures to
left a person in charge of the
safeguard the rights and interests administration of his property,
of the absentee and shall specify the declaration of his absence
the powers, obligations and and appointment of a trustee or
remuneration of his administrator may be applied
representative, regulating them,
according to the circumstances, by for by any of the following:
the rules concerning guardians. (a) The spouse present;
(182)

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142

(b) The heirs instituted in .1 present spouse


a will, who may present an .2 heirs instituted in a will, who
authentic copy of the same; may present an authentic copy
(c) The relatives who of the same;
would succeed by the law of .3 intestate heirs
intestacy; and
.4 those who may have over the
(d) Those who have over property of the absentee some
the property of the absentee right subordinated to the
some right subordinated to the condition of his death
condition of his death.
Note that declaration of absence
cf Arts. 384-385 NCC does not authorize the present
Art. 384. Two years having elapsed spouse to remarry even if the
without any news about the period is the same. The present
absentee or since the receipt of
the last news, and five years in
spouse must obtain a separate
case the absentee has left a person judicial declaration of
in charge of the administration of presumptive death. (Art. 41 FC)
his property, his absence may be
Art. 41 A marriage contracted by
declared. (184)
any person during subsistence of a
Art. 385. The following may ask for previous marriage shall be null
the declaration of absence: and void, unless before the
celebration of the subsequent
(1) The spouse present;
marriage, the prior spouse had
(2) The heirs instituted in a will, been absent for four consecutive
who may present an authentic years and the spouse present has a
copy of the same; well-founded belief that the absent
spouse was already dead. In case
(3) The relatives who may succeed of disappearance where there is
by the law of intestacy; danger of death under the
(4) Those who may have over the circumstances set forth in the
property of the absentee some provisions of Article 391 of the
right subordinated to the condition Civil Code, an absence of only two
of his death. (185) years shall be sufficient.

Required period for declaration For the purpose of contracting the


subsequent marriage under the
absence
preceding paragraph the spouse
.1 If absentee left a person in present must institute a summary
charge – 5 years from proceeding as provided in this
Code for the declaration of
disappearance presumptive death of the absentee,
.2 If absentee left no person in without prejudice to the effect of
reappearance of the absent
charge – 2 years from spouse. (83a)
.a disappearance or
3. Provisions common
.b receipt of last news to appointment of a
Who may ask for declaration of representative and
absence

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declaration of devisees, creditors and other


absence interested persons, at least ten
(10) days before the day of the
Sec. 3. Contents of petition. hearing, and shall be published
The petition for the once a week for three (3)
appointment of a consecutive weeks prior to the
representative, or for the time designated for the
declaration of absence and the hearing, in a newspaper of
appointment of a trustee or an general circulation in the
administrator, must show the province or city where the
following: absentee resides, as the court
(a) The jurisdictional facts; shall deem best.
(b) The names, ages, and Petition for appointment of a
residences of the heirs representative or for declaration of
instituted in the will, copy of absence must be published.
which shall be presented, and Sec. 5. Opposition. Anyone
of the relatives who would appearing to contest the
succeed by the law of intestacy; petition shall state in writing
(c) The names and his grounds therefor, and
residences of creditors and served a copy thereof on the
others who may have any petitioner and other interested
adverse interest over the parties on or before the date
property of the absentee; designated for the hearing.
(d) The probable value, Sec. 6. Proof at hearing;
location and character of the order. At the hearing,
property belonging to the compliance with the provisions
absentee. of section 4 of this rule must
first be shown. Upon
Sec. 4. Time of hearing; satisfactory proof of the
notice and publication thereof. allegations in the petition, the
When a petition for the court shall issue an order
appointment of a granting the same and
representative, or for the appointing the representative,
declaration of absence and the trustee or administrator for the
appointment of a trustee or absentee. The judge shall take
administrator, is filed, the court the necessary measures to
shall fix a date and place for safeguard the rights and
the hearing thereof where all interests of the absentee and
concerned may appear to shall specify the powers,
contest the petition. obligations and remuneration
Copies of the notice of the of his representative, trustee or
time and place fixed for the administrator, regulating them
hearing shall be served upon by the rules concerning
the known heirs, legatees, guardians.

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In case of declaration of cease upon order of the court


absence, the same shall not in any of the following cases:
take effect until six (6) months (a) When the absentee
after its publication in a appears personally or by means
newspaper of general of an agent;
circulation designated by the
court and in the Official (b) When the death of the
Gazette. absentee is proved and his
testate or intestate heirs
cf Arts. 386 NCC
appear;
Art. 386. The judicial declaration
of absence shall not take effect (c) When a third person
until six months after its appears, showing by a proper
publication in a newspaper of document that he has acquired
general circulation. (186a) the absentee's property by
Sec. 7. Who may be purchase or other title.
appointed. In the appointment In these cases the trustee or
of a representative, the spouse administrator shall cease in the
present shall be preferred when performance of his office, and
there is no legal separation. If the property shall be placed at
the absentee left no spouse, or the disposal of those who may
if the spouse present is a minor have a right thereto.
or otherwise incompetent, any
competent person may be cf Arts. 389 NCC
appointed by the court. Art. 389. The administration shall
cease in any of the following cases:
In case of declaration of
(1) When the absentee appears
absence, the trustee or
personally or by means of an
administrator of the absentee's agent;
property shall be appointed in
(2) When the death of the absentee
accordance with the preceding is proved and his testate or
paragraph. intestate heirs appear;
cf Arts. 383 NCC (3) When a third person appears,
showing by a proper document
Art. 383. In the appointment of a
that he has acquired the
representative, the spouse present
absentee's property by purchase or
shall be preferred when there is no
other title.
legal separation.
In these cases the administrator
If the absentee left no spouse, or if
shall cease in the performance of
the spouse present is a minor, any
his office, and the property shall
competent person may be
be at the disposal of those who
appointed by the court. (183a)
may have a right thereto. (190)
Sec. 8. Termination of When admininstration terminates
administration. The trusteeship
or administration of the .1 absentee appears personally or
property of the absentee shall by means of an agent;

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145

.2 death of the absentee is proved war, and has been missing for
and his testate or intestate four years;
heirs appear;
(3) A person who has been
.3 a third person appears, showing in danger of death under other
by a proper document that he circumstances and his
has acquired the absentee's existence has not been known
property by purchase or other for four years. (n)
title.
Art. 41. A marriage
4. Presumption of contracted by any person
Death (Arts. 390- during subsistence of a
391 NCC, Art. 41 previous marriage shall be null
and void, unless before the
FC) celebration of the subsequent
Art. 390. After an absence of marriage, the prior spouse had
seven years, it being unknown been absent for four
whether or not the absentee consecutive years and the
still lives, he shall be presumed spouse present has a well-
dead for all purposes, except founded belief that the absent
for those of succession. spouse was already dead. In
case of disappearance where
The absentee shall not be
there is danger of death under
presumed dead for the purpose
the circumstances set forth in
of opening his succession till
the provisions of Article 391 of
after an absence of ten years. If
the Civil Code, an absence of
he disappeared after the age of
only two years shall be
seventy-five years, an absence
sufficient.
of five years shall be sufficient
in order that his succession For the purpose of
may be opened. (n) contracting the subsequent
marriage under the preceding
Art. 391. The following shall
paragraph the spouse present
be presumed dead for all
must institute a summary
purposes, including the
proceeding as provided in this
division of the estate among
Code for the declaration of
the heirs:
presumptive death of the
(1) A person on board a absentee, without prejudice to
vessel lost during a sea voyage, the effect of reappearance of
or an aeroplane which is the absent spouse. (83a)
missing, who has not been
Periods for presumption of death
heard of for four years since
the loss of the vessel or .1 opening of succession
aeroplane; a. Ordinary absence
(2) A person in the armed 1) disappears at age 75 and
forces who has taken part in up – 5 years

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146

)1 disappears at age 75 cannot claim either fruits or


and below - 10 years rents. (194)
.b Absence under dangerous If the absentee reappears after he
circumstances – 4 years has been
.2 For remarriage .1 declared absent – may recover
.a Ordinary absence - 4 years property from administrator in
the condition in which it may be
.b Absence under dangerous found; recover property
circumstances – 2 years disposed with court approval or
.3 all other purposes its price, but he can not recover
fruits or rents or interest or
.a ordinary absence – 7 years damages
.b Absence under dangerous .2 presumed dead – may recover
circumstances – 4 years properties already disposed,
Note that it is only for the purpose subject to the extraordinary
of remarriage (Art. 41 FC) and acquisitive prescription; he can
succession (Jones v. Hortiguela, 64 not recover fruits or rents or
Phil 179) that a judicial interest or damages
declaration of presumptive M. Rule 109: Appeals
death is necessary. For all other
purposes, the presumption in Special Proceedings
attaches without necessity of a Sec. 1. Orders or judgments
court declaration. from which appeals may be
Instances of absence under taken. An interested person
dangerous circumstances may appeal in special
(Extraordinary absence) proceedings from an order or
judgment rendered by a Court
.1 on board a lost or missing of First Instance or a Juvenile
vessel or aeroplane and Domestic Relations Court,
.2 missing from the armed forces where such order or judgment:
who has taken part in war (a) Allows or disallows a
.3 in danger of death under other will;
circumstances (b) Determines who are the
Art. 392. If the absentee lawful heirs of a deceased
appears, or without appearing person, or the distributive
his existence is proved, he shall share of the estate to which
recover his property in the such person is entitled;
condition in which it may be (c) Allows or disallows, in
found, and the price of any whole or in part, any claim
property that may have been against the estate of a deceased
alienated or the property person, or any claim presented
acquired therewith; but he on behalf of the estate in offset
to a claim against it;

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(d) Settles the account of or guardian, a final


an executor, administrator, determination in the lower
trustee or guardian; court of the rights of the party
appealing, except that no
(e) Constitutes, in
appeal shall be allowed from
proceedings relating to the
the appointment of a special
settlement of the estate of a
administrator; and
deceased person, or the
administration of a trustee or .6 final order or judgment
guardian, a final determination rendered in the case, and
in the lower court of the rights affects the substantial rights of
of the party appealing, except the person appealing, unless it
that no appeal shall be allowed be an order granting or denying
from the appointment of a a motion for a new trial or for
special administrator; and reconsideration.
(f) Is the final order or Sec. 2. Advance distribution
judgment rendered in the case, in special proceedings.
and affects the substantial Notwithstanding a pending
rights of the person appealing, controversy or appeal in
unless it be an order granting proceedings to settle the estate
or denying a motion for a new of a decedent, the court may, in
trial or for reconsideration. its discretion and upon such
terms as it may deem proper
Appealable special proceedings
and just, permit that such part
orders
of the estate as may not be
.1 Allows or disallows a will; affected by the controversy or
.2 Determines who are the lawful appeal be distributed among
heirs of a deceased person, or the heirs or legatees, upon
the distributive share of the compliance with the conditions
estate to which such person is set forth in Rule 90 of these
entitled; rules.

.3 Allows or disallows, in whole or


in part, any claim against the
estate of a deceased person, or
any claim presented on behalf
of the estate in offset to a claim
against it;
.4 Settles the account of an
executor, administrator, trustee
or guardian;
.5 Constitutes, in proceedings
relating to the settlement of the
estate of a deceased person, or
the administration of a trustee

Remedial Law Reviewer Mark de Leon, JD 2001