Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
SETTLEMENT OF ESTATE OF DECEASED PERSONS
RULE 73
Venue and Process
Section 1. Where estate of deceased persons settled. —
If the decedents is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the time
of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in
which he had estate. The court first taking cognizance of
the settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends
on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears
on the record.
Section 2. Where estate settled upon dissolution of
marriage. — When the marriage is dissolved by the
death of the husband or wife, the community property
shall be inventoried, administered, and liquidated, and
the debts thereof paid, in the testate or intestate
proceedings of the deceased spouse. If both spouses
have died, the conjugal partnership shall be liquidated
in the testate or intestate proceedings of either.
Section 3. Process. — In the exercise of probate
jurisdiction, Courts of First Instance may issue warrants
and process necessary to compel the attendance of
witnesses or to carry into effect theirs orders and
judgments, and all other powers granted them by law. If
a person does not perform an order or judgment
rendered by a court in the exercise of its probate
jurisdiction, it may issue a warrant for the apprehension
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and imprisonment of such person until he performs
such order or judgment, or is released.
Section 4. Presumption of death. — For purposes of
settlement of his estate, a person shall be presumed
dead if absent and unheard from for the periods fixed in
the Civil Code. But if such person proves to be alive, he
shall be entitled to the balance of his estate after
payment of all his debts. The balance may be recovered
by motion in the same proceeding.
BASIC ELEMENTS
 Decedent
 Estate in the Philippines (Rule 73, Sec. 1)
DEATH
 Actual
A person is dead, when there is a certificate of
death issued attesting to the fact of it.
Regardless of his brain dead, or not breathing or
whatever, your best proof that the person is
dead, actually dead, is when there is a
certificate of death issued. Don’t make your life
difficult by defining a brain dead person. All you
need to do is to get a certificate of the fact of
death.
 Presumptive ( Art. 390-392, Civil Code)
 Rule 131 , Section 3
ESTATE
Estate is a person. It is a legal personality. It is not a
thing that is left merely by the decedent.
1. Limjoco v Intestate Estate of Fragrante
FACTS:
Public Service Commission granted the application of
Pedro O. Fragante to operate an ice plant.
Limjoco contends that it was error on the part of the
commission to allow the substitution of the legal
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
representative of the estate of Pedro O. Fragante for
the latter as party applicant in the case then pending
before the commission, and in subsequently granting to
said estate the certificate applied for, which is said to be
in contravention of law.
ISSUE: Whether the estate of Pedro O. Fragrante is a
"person" within the meaning of the Public Service Act?
YES.
HELD:
The estate of the decedent is a person in legal
contemplation
As the estate of the decedent is in law regarded as a
person, a forgery committed after the death of the man
whose name purports to be signed to the instrument
may be prosecuted as with the intent to defraud the
estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7
N. E. 763, 57 Am. Rep. 77.
The estate of the decedent is a person in legal
contemplation. "The word "person" says Mr. Abbot, "in
its legal signification, is a generic term, and includes
artificial as well as natural persons," 2 Abb. Dict. 271;
Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc.,
Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another
work that 'persons are of two kinds: natural and
artificial. A natural person is a human being. Artificial
persons include (1) a collection or succession of natural
persons forming a corporation; (2) a collection of
property to which the law attributes the capacity of
having rights and duties. The latter class of artificial
persons is recognized only to a limited extent in our
law. "Examples are the estate of a bankrupt or
deceased person."
The Citizenship of Pedro is extended to his estate
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(This is important because Limjoco also questioned the
citizenship of the estate since the certification for public
convenience can only be granted to Filipino Citizens)
We can perceive no valid reason for holding that within
the intent of the constitution (Article IV), its provisions
on Philippine citizenship exclude the legal principle of
extension above adverted to. If for reasons already
stated our law indulges the fiction of extension of
personality, if for such reasons the estate of Pedro O.
Fragrante should be considered an artificial or juridical
person herein, we can find no justification for refusing
to declare a like fiction as to the extension of his
citizenship for the purposes of this proceeding.
2. Lim v CA
G.R. No. 124715, January 24, 2000
Can an estate include corporations? No.
FACTS:
Petitioner Rufina Lim and her nephew George Luy filed
a petition for the administration of the estate of Pastor
Y. Lim. Respondent corporations, whose properties
were included in the inventory of the estate of Pastor
Lim opposed and moved for the exclusion of certain
properties from the estate of the decedent.
Rufina Lim filed an amended petition. She averred that
although the subject business entities dealt and
engaged in business with the public as corporations, all
their capital, assets and equity were however,
personally owned by Pastor Lim. Hence, the alleged
stockholders and officers appearing in the articles of
incorporation were dummies of Pastor Lim and were
listed for purposes of registration.
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Based on the Syllabus of Atty. Geraldine Q. Tiu
ISSUE: WON a corporation may be the proper subject of
and be included in the inventory of the estate of a
decedent NO
HELD:
Titles of real properties under the name of the
corporation
Inasmuch as the real properties included in the
inventory of the estate of the Late Pastor Y. Lim are in
the possession of and are registered in the name of
private respondent corporations, which under the law
possess a personality separate and distinct from their
stockholders, and in the absence of any cogency to
shred the veil of corporate fiction, the presumption of
conclusiveness of said titles in favor of private
respondents should stand undisturbed.
Properties of the corporation should have been
excluded by probate court
Accordingly, the probate court was remiss in denying
private respondents' motion for exclusion. While it may
be true that the Regional Trial Court, acting in a
restricted capacity and exercising limited jurisdiction as
a probate court, is competent to issue orders involving
inclusion or exclusion of certain properties in the
inventory of the estate of the decedent, and to adjudge,
albeit, provisionally the question of title over
properties, it is no less true that such authority
conferred upon by law and reinforced by jurisprudence,
should be exercised judiciously, with due regard and
caution to the peculiar circumstances of each individual
case.
Notwithstanding that the real properties were duly
registered under the Torrens system in the name of
private respondents, and as such were to be afforded
the presumptive conclusiveness of title, the probate
court obviously opted to shut its eyes to this gleamy
fact and still proceeded to issue the impugned orders.
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By its denial of the motion for exclusion, the probate
court in effect acted in utter disregard of the
presumption of conclusiveness of title in favor of
private respondents. Certainly, the probate court
through such brazen act transgressed the clear
provisions of law and infringed settled jurisprudence on
this matter.
Rudimentary is the rule that a corporation is invested by
law with a personality distinct and separate from its
stockholders or members. In the same vein, a
corporation by legal fiction and convenience is an entity
shielded by a protective mantle and imbued by law with
a character alien to the persons comprising it.
3. CMH v CA
G.R. No. 112625, March 7, 2002
CMH AGRICULTURAL CORPORATION, CARLOS M.
HOJILLA, CESAR M. HOJILLA, CLAUDIO M. HOJILLA,
CORA M. HOJILLA AND CORNELIO M.
HOJILLA, petitioners, vs.HON. COURT OF APPEALS AND
CRISTOBAL M. HOJILLA, respondents.’
FACTS:
Cristobal M. Hojilla filed a complaint for "Disregarding
and Piercing the Veil of Corporate Fiction, Formal
Declaration or Recognition of Successional Rights and
Recovery of Title with Damages" with the RTC of
Bacolod City against his siblings namely: Carlos M.
Hojilla, Cesar M. Hojilla,Cornelio M. Hojilla, Claudio M.
Hojilla and Corazon M. Hojilla and CMH Agricultural
Corporation (CMH for brevity).
Cristobal alleged in his complaint that CMH was a
dummy corporation created to be the alter-ego of their
mother, the late Concepcion Montelibano-Hojilla, who
purposely organized the same in 1975 to shield her
paraphernal properties from taxes by fictitiously
assigning them to CMH, with her children acting as
dummy stockholders. Immediately upon its
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
incorporation, the following properties of his mother
were assigned to CMH: Hacienda Manayosayao,
Hacienda Nangka and a house and lots on 23rd Street,
Bacolod City, consisting of Lot Nos. 240, 241, 242, 246,
247 and 248.
After their mother's death, Cristobal and his siblings
extrajudicially partitioned the properties. Corazon,
Claudio and Cristobal were apportioned Hacienda
Manayaosayao, the house and lots on 23rd Street,
Bacolod City, and some lots which were not assigned to
CMH. Thereafter, with the promise that the title over
the property would be delivered to them, Corazon,
Claudio and Cristobal took possession of the subject
house and lots. However, Cristobal claimed that the title
over the said property had not been turned over to
them and on several occasions Carlos, Cesar and
Cornelio had, without his and his co-owners'
knowledge, mortgaged the said lots comprising the 23rd
Street property in Bacolod City to several banking
institutions and even leased the same to Pilipinas Shell
Petroleum Corporation.
Thus, Cristobal prayed that the veil of corporate fiction
be pierced as CMH was being used to deprive and
defraud him of his successional rights over the house
and lots on 23rd Street, Bacolod City.
Defendants raised the defense of lack of jurisdiction
alleging that as an intra –corporate controversy, the
same is cognizable by SEC.
ISSUE: Does the RTC have jurisdiction over the
complaint . YES
Can the doctrine of piercing the veil of corporate entity
be applied? YES
HELD:
Thrust of the complaint is protection of successional
rights ; not an intra-corporate controversy
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A reading of the complaint filed by private respondent
shows that its primary objective is to protect his
successional rights as an heir of his late mother,
Concepcion M. Hojilla, whose paraphernal properties he
claimed were fictitiously assigned to CMH to evade
payment of taxes. He alleged therein that the
properties had already been the subject of extra-judicial
partition between the heirs with the house and lots on
23rd Street, Bacolod City, being bestowed upon him
and his co-heirs Corazon and Claudia. He claimed that
the failure of his other siblings, Carlos, Cesar and
Cornelio, to turn over the title to him and his co-heirs
allowed CMH to continue claiming the house and lots as
its own and even attempted to lease a few of the lots to
other persons without the knowledge of private
respondent and his co-heirs. Thus, private respondent
filed the complaint to consolidate his claim over the
subject properties and forestall any further intrusive act
from the CMH which would place his and his co-
heirs/co-owners' rights over the properties in constant
peril. Private respondent's position as a stockholder of
CMH and his relationship to the other stockholders,
became incidental only to the issue of ownership over
the subject properties and did not convert the action
into an intra-corporate controversy within the exclusive
jurisdiction of the SEC but remained a civil action
cognizable by the regular courts.
Neither does the allegation about CMH's formation as
an alleged dummy corporation designed to be the alter-
ego of the late Concepcion M. Hojilla and the prayer for
piercing the corporate veil convert the action into an
intra-corporate controversy as the former is merely
cited as the ground relied upon by private respondent
to prove his claim of ownership over the said house and
lots whereas through the said prayer, he in effect
exhorts the court to confirm his allegations and thus,
protect his successional rights.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Application of the doctrine “piercing the veil of
corporate entity”
Thus, in Cease v. CA this Court took cognizance of the
civil case filed by respondents against their siblings
(petitioners therein) and the Tiaong Milling and
Plantation Company, Inc. praying that the corporation
be declared identical to their deceased father, Forrest L.
Cease, and that its properties be divided among his
children as his intestate heirs. The Court treated the
case as an action for partition and, applying the
doctrine of piercing the corporate veil, disregarded the
separate personality of the corporation from that of its
stockholders reasoning that if the legal fiction of
separate corporate personality were sustained, then it
would be used to delay and ultimately deprive and
defraud respondents of their successional rights over
the estate of their deceased father.
SETTLEMENT OF ESTATE
Extrajudicial Settlement of Estate (Rule 74)
RULE 74
Summary Settlement of Estate
Section 1. Extrajudicial settlement by agreement
between heirs. — If the decedent left no will and no
debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives
duly authorized for the purpose, the parties may
without securing letters of administration, divide the
estate among themselves as they see fit by means of a
public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in an
ordinary action of partition. If there is only one heir, he
may adjudicate to himself the entire estate by means of
an affidavit filled in the office of the register of deeds.
The parties to an extrajudicial settlement, whether by
public instrument or by stipulation in a pending action
for partition, or the sole heir who adjudicates the entire
estate to himself by means of an affidavit shall file,
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simultaneously with and as a condition precedent to the
filing of the public instrument, or stipulation in the
action for partition, or of the affidavit in the office of
the register of deeds, a bond with the said register of
deeds, in an amount equivalent to the value of the
personal property involved as certified to under oath by
the parties concerned and conditioned upon the
payment of any just claim that may be filed under
section 4 of this rule. It shall be presumed that the
decedent left no debts if no creditor files a petition for
letters of administration within two (2) years after the
death of the decedent.
The fact of the extrajudicial settlement or
administration shall be published in a newspaper of
general circulation in the manner provided in the nest
succeeding section; but no extrajudicial settlement shall
be binding upon any person who has not participated
therein or had no notice thereof.
Section 2. Summary settlement of estate of small value.
— Whenever the gross value of the estate of a
deceased person, whether he died testate or intestate,
does not exceed ten thousand pesos, and that fact is
made to appear to the Court of First Instance having
jurisdiction of the estate by the petition of an interested
person and upon hearing, which shall be held not less
than one (1) month nor more than three (3) months
from the date of the last publication of a notice which
shall be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the
province, and after such other notice to interest
persons as the court may direct, the court may proceed
summarily, without the appointment of an executor or
administrator, and without delay, to grant, if proper,
allowance of the will, if any there be, to determine who
are the persons legally entitled to participate in the
estate, and to apportion and divide it among them after
the payment of such debts of the estate as the court
shall then find to be due; and such persons, in their own
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Based on the Syllabus of Atty. Geraldine Q. Tiu
right, if they are of lawful age and legal capacity, or by
their
guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and
enter into the possession of the portions of the estate
so awarded to them respectively. The court shall make
such order as may be just respecting the costs of the
proceedings, and all orders and judgments made or
rendered in the course thereof shall be recorded in the
office of the clerk, and the order of partition or award, if
it involves real estate, shall be recorded in the proper
register's office.
Section 3. Bond to be filed by distributees. — The court,
before allowing a partition in accordance with the
provisions of the preceding section, my require the
distributees, if property other than real is to be
distributed, to file a bond in an amount to be fixed by
court, conditioned for the payment of any just claim
which may be filed under the next succeeding section.
Section 4. Liability of distributees and estate. — If it
shall appear at any time within two (2) years after the
settlement and distribution of an estate in accordance
with the provisions of either of the first two sections of
this rule, that an heir or other person has been unduly
deprived of his lawful participation in the estate, such
heir or such other person may compel the settlement of
the estate in the courts in the manner hereinafter
provided for the purpose of satisfying such lawful
participation. And if within the same time of two (2)
years, it shall appear that there are debts outstanding
against the estate which have not been paid, or that an
heir or other person has been unduly deprived of his
lawful participation payable in money, the court having
jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of such debts
or lawful participation and order how much and in what
manner each distributee shall contribute in the
payment thereof, and may issue execution, if
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circumstances require, against the bond provided in the
preceding section or against the real estate belonging to
the deceased, or both. Such bond and such real estate
shall remain charged with a liability to creditors, heirs,
or other persons for the full period of two (2) years
after such distribution, notwithstanding any transfers of
real estate that may have been made.
Section 5. Period for claim of minor or incapacitated
person. — If on the date of the expiration of the period
of two (2) years prescribed in the preceding section the
person authorized to file a claim is a minor or mentally
incapacitated, or is in prison or outside the Philippines,
he may present his claim within one (1) year after such
disability is removed.
1. Gerilla v De Figuracion
G.R. No. 154322, August 22, 2006
Partition not proper; settlement must be
undertaken for proper accounting of the
FACTS:
charges against the estate
As a result of the death of the parents of the petitioner
(Emilia) and the respondents (De Figuracion et al),
several properties were left to them.
In February 1971, Emilia and her family went to the
United States where they stayed for ten years.
It was sometime later that this dispute erupted. Emilia
sought the extrajudicial partition of all properties held
in common by her and respondents. On May 1994,
Emilia filed a complaint in the RTC for partition,
annulment of documents, reconveyance, quieting of
title and damages against respondents.
Respondents took the position that Leandro’s estate
should first undergo settlement proceedings before
partition among the heirs could take place. And they
claimed that an accounting of expenses chargeable to
the estate was necessary for such settlement. Among
other things, respondents apparently wanted petitioner
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Based on the Syllabus of Atty. Geraldine Q. Tiu
to share in the expenses incurred for the care of their
parents during the ten years she stayed in the United
States, before she could get her part of the estate while
petitioner apparently wanted her gross share, without
first contributing to the expenses.
ISSUE:
WON there needs to be a prior settlement of father’s
intestate estate before the properties can be
partitioned or distributed? YES.
HELD:
There are two ways by which partition can take place
under Rule 69: by agreement under Section 2 and
through commissioners when such agreement cannot
be reached, under Sections 3 to 6.
Neither method specifies a procedure for determining
expenses chargeable to the decedent’s estate. While
Section 8 of Rule 69 provides that there shall be an
accounting of the real property’s income (rentals and
profits) in the course of an action for partition, there is
no provision for the accounting of expenses for which
property belonging to the decedent’s estate may be
answerable, such as funeral expenses, inheritance taxes
and similar expenses enumerated under Section 1, Rule
90 of the Rules of Court.
In a situation where there remains an issue as to the
expenses chargeable to the estate, partition is
inappropriate. While petitioner points out that the
estate is allegedly without any debt and she and
respondents are Leandro Figuracion’s only legal heirs,
she does not dispute the finding of the CA that “certain
expenses” including those related to her father’s final
illness and burial have not been properly settled.Thus,
the heirs (petitioner and respondents) have to submit
their father’s estate to settlement because the
determination of these expenses cannot be done in an
action for partition.
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In estate settlement proceedings, there is a proper
procedure for the accounting of all expenses for which
the estate must answer. If it is any consolation at all to
petitioner, the heirs or distributees of the properties
may take possession thereof even before the
settlement of accounts, as long as they first file a bond
conditioned on the payment of the estate’s obligations.
Atty. Tiu: They go for partition under Rule 69 if they
cannot agree. If they agree, then they can go for an
extrajudicial settlement by executing a written
agreement to that effect. However, judicial partition is
not feasible if there are debts left by the decedent. That
is why you have no choice but to got the settlement
proceedings outline under this set of Rules. So you have
to be able to distinguish when do you have to go to
partition and when do you go to partition and when do
you go for settlement. Because these two are not the
same. We have a special civil action for partition under
Rule 69. And that will only apply if according to Gerilla
vs. De Figuracion, there are no debts left by the
decedent. And when you see debts, they refer to the
expenses for the last years of the decedent, taxes, and
as well as the burial expenses. So all of these have been
settled and all you have left are properties among the
heirs but they cannot agree on how to partition the
property, then you go for the special civil action for
partition under Rule 69. But if there are debts as in the
case of De Figuracion, then you don’t go for partition,
you file for a settlement case. So be very careful. Be able
to distinguish when to go for Rule 69 and when to go for
Rule 73.
2. Pereira v CA
Simple partition proper
G.R. No. L-81147, June 20, 1989
FACTS:
Andres Pereira, an employee of the Philippine Air Lines,
passed away without a will. He was survived by his
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Based on the Syllabus of Atty. Geraldine Q. Tiu
legitimate spouse of 10 months, herein petitioner
Victoria Pereira, and his sister Rita Pereira Nagac
(private respondent).
Nagac instituted special proceeding for the issuance of
letters of administration in her favor pertaining to the
estate of deceased, which includes death benefits from
PAL, SSS, savings deposits with PNB, etc. Petitioner filed
her opposition and motion to dismiss alleging that there
exists no estate for purposes of administration, and if it
does exist, that the letters of admin be issued in her
favor as surviving spouse.
ISSUE:
(1) Whether or not there exists an estate of the
deceased Andres de Guzman Pereira for purposes of
administration;
(2) Whether or not a judicial administration proceeding
is necessary where there are no debts left by the
decedent; and
(3) Who has the better right to be appointed as
administratrix of the estate of the deceased, the
surviving spouse Victoria Bringas Pereira or the
surviving sister Rita Pereira Nagac?
HELD:
First Issue:
SC cannot order an unqualified and final exclusion or
non-exclusion of the property involved from the estate
of the deceased. The resolution of this issue is better
left to the probate court before which the
administration proceedings are pending. The trial court
is in the best position to receive evidence on the
discordant contentions of the parties as to the assets of
the decedent's estate, the valuations thereof and the
rights of the transferees of some of the assets, if any.
Second Issue:
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Assuming, however, that there exist assets of the
deceased Andres de Guzman Pereira for purposes of
administration, We nonetheless find the administration
proceedings instituted by private respondent to be
unnecessary as contended by petitioner.
General Rule: property of decedent must be judicially
administered
The general rule is that when a person dies leaving
property, the same should be judicially administered
and the competent court should appoint a qualified
administrator, in the order established in Section 6, Rule
78, in case the deceased left no will, or in case he had
left one, should he fail to name an executor therein. An
exception to this rule is established in Section 1 of Rule
74. Under this exception, when all the heirs are of
lawful age and there are no debts due from the estate,
they may agree in writing to partition the property
without instituting the judicial administration or
applying for the appointment of an administrator.
Section 1, Rule 74 of the Revised Rules of Court,
however, does not preclude the heirs from instituting
administration proceedings, even if the estate has no
debts or obligations, if they do not desire to resort for
good reasons to an ordinary action for partition. While
Section 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an
ordinary action for partition, the said provision does not
compel them to do so if they have good reasons to take
a different course of action. It should be noted that
recourse to an administration proceeding even if the
estate has no debts is sanctioned only if the heirs have
good reasons for not resorting to an action for partition.
Where partition is possible, either in or out of court, the
estate should not be burdened with an administration
proceeding without good and compelling reasons.
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Based on the Syllabus of Atty. Geraldine Q. Tiu
If no obligations, judicial administration is superfluous
and unnecessary
Thus, it has been repeatedly held that when a person
dies without leaving pending obligations to be paid, his
heirs, whether of age or not, are not bound to submit
the property to a judicial administration, which is
always long and costly, or to apply for the appointment
of an administrator by the Court. It has been uniformly
held that in such case the judicial administration and
the appointment of an administrator are superfluous
and unnecessary proceedings.
Exception: good reasons for not resorting to partition
Now, what constitutes "good reason" to warrant a
judicial administration of the estate of a deceased when
the heirs are all of legal age and there are no creditors
will depend on the circumstances of each case.
In one case, We said:
What can be undertaken in an ordinary action for partition?
Again the petitioner argues that only when the heirs do
not have any dispute as to the bulk of the hereditary
estate but only in the manner of partition does section
1, Rule 74 of the Rules of Court apply and that in this
case the parties are at loggerheads as to the corpus of
the hereditary estate because respondents succeeded
in sequestering some assets of the intestate. The
argument is unconvincing, because, as the respondent
judge has indicated, questions as to what property
belonged to the deceased (and therefore to the heirs)
may properly be ventilated in the partition proceedings,
especially where such property is in the hands of one
heir.
In another case, We held that if the reason for seeking
an appointment as administrator is merely to avoid a
multiplicity of suits since the heir seeking such
appointment wants to ask for the annulment of certain
transfers of property, that same objective could be
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achieved in an action for partition and the trial court is
not justified in issuing letters of administration.
In still another case, We did not find so powerful a
reason the argument that the appointment of the
husband, a usufructuary forced heir of his deceased
wife, as judicial administrator is necessary in order for
him to have legal capacity to appear in the intestate
proceedings of his wife's deceased mother, since he
may just adduce proof of his being a forced heir in the
intestate proceedings of the latter.
No good reason to burden the estate with an
administration proceeding
We see no reason not to apply this doctrine to the case
at bar. There are only two surviving heirs, a wife of ten
months and a sister, both of age. The parties admit that
there are no debts of the deceased to be paid. What is
at once apparent is that these two heirs are not in good
terms. The only conceivable reason why private
respondent seeks appointment as administratrix is for
her to obtain possession of the alleged properties of the
deceased for her own purposes, since these properties
are presently in the hands of petitioner who supposedly
disposed of them fraudulently. We are of the opinion
that this is not a compelling reason which will
necessitate a judicial administration of the estate of the
deceased. To subject the estate of Andres de Guzman
Pereira, which does not appear to be substantial
especially since the only real property left has been
extrajudicially settled, to an administration proceeding
for no useful purpose would only unnecessarily expose
it to the risk of being wasted or squandered. In most
instances of a similar nature, the claims of both parties
as to the properties left by the deceased may be
properly ventilated in simple partition proceedings
where the creditors, should there be any, are protected
in any event.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
3. Avelino v CA
G.R. No. 115181 March 31, 2000
MARIA SOCORRO AVELINO, petitioner, vs. COURT OF
APPEALS, ANGELINA AVELINO, SHARON AVELINO,
ANTONIO AVELINO, JR., TRACY AVELINO, PATRICK
MICHAEL AVELINO and MARK ANTHONY AVELINO,
respondents.
Conversion to ordinary partition possible by
mere MOTION in an administration / settlement
FACTS: proceeding
Maria Socorro Avelino is a daughter and compulsory
heir of the late Antonio Avelino, Sr., and his first wife
private respondent Angelina Avelino.
The other private respondents, Sharon, Antonio Jr.,
Tracy, Patrick and Mark Anthony all surnamed Avelino
are likewise compulsory heirs of Avelino, Sr. Sharon, an
American, is the second wife of Avelino Sr. The other
private respondents are siblings of Ma. Socorro.
Ma. Socorro ,in a petition for the issuance of letters of
administration of the estate of Antonio Avelino, Sr.,
asked that she be appointed the administrator of the
estate of her late father.
Angelina and the other siblings filed a motion to
convert the said judicial proceedings to an action for
judicial partition which was GRANTED.
MR of Ma. Socorro was denied as well as the CA
Certiorari.
Hence this petition.
Contentions of Petitioner:
First, no partition of the estate is possible in the instant
case as no determination has yet been made of the
character and extent of the decedent's estate. She
points to the Court's ruling in Arcilles v.Montejo, 26
SCRA 197 (1969), where we held that when the
Alvar, Ceballo, Cuabo
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existence of other properties of the decedent is a
matter still to be reckoned with, administration
proceedings are the proper mode of resolving the same.
In addition, petitioner contends that the estate is in
danger of being depleted for want of an administrator
to manage and attend to it.
Second, petitioner insists that the Rules of Court does
not provide for conversion of a motion for the issuance
of letters of administration to an action for judicial
partition. The conversion of the motion was, thus,
procedurally inappropriate and should be struck down
for lack of legal basis.
ISSUE:
WON the conversion of administration proceeding
(special proceeding) to judicial partition (ordinary
action for partition) is proper. YES
HELD:
Section 1 Rule 74 of the Rules of Court is applicable
When a person dies intestate, or, if testate, failed to
name an executor in his will or the executor so named is
incompetent, or refuses the trust, or fails to furnish the
bond required by the Rules of Court, then the
decedent's estate shall be judicially administered and
the competent court shall appoint a qualified
administrator in the order established in Section 6 of
Rule 78.5 The exceptions to this rule are found in
Sections 1 and 2 of Rule 746 which provide:
Sec. 1. Extrajudicial settlement by agreement between heirs.
— If the decedent left no will and no debts and the heirs are
all of age or the minors are represented by their judicial or
legal representatives duly authorized for the purpose, the
parties may, without securing letters of administration, divide
the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds,
and should they disagree, they may do so in an ordinary
action of partition. . .
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Sec. 2. Summary settlement of estates of small value. —
Whenever the gross value of the estate of a deceased person,
whether he died testate or intestate, does not exceed ten
thousand pesos, and that fact if made to appear to the
Regional Trial Court having jurisdiction of the estate by the
petition of an interested person and upon hearing, which shall
be held not less than one (1) month nor more than three (3)
months from the date of the last publication of a notice which
shall be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the province,
and after such other notice to interested persons as the court
may direct, the court may proceed summarily, without the
appointment of an executor or administrator, and without
delay, to grant, if proper, allowance of the will, if any there
be, to determine who are the persons legally entitled to
participate in the estate and to apportion and divide it among
them after the payment of such debts of the estate as the
court shall then find to be due; and such persons, in their own
right, if they are lawful age and legal capacity, or by their
guardians or trustees legally appointed and qualified, if
otherwise, shall thereupon be entitled to receive and enter
into the possession of the portions of the estate so awarded
to them respectively. The court shall make such order as may
be just respecting the costs of the proceedings, and all orders
and judgments made or rendered in the course thereof shall
be recorded in the office of the clerk, and the order of
partition or award, if it involves real estate, shall be recorded
in the proper register's office.
The heirs succeed immediately to all of the rights and
properties of the deceased at the moment of the
latter's death. Section 1, Rule 74 of the Rules of Court,
allows heirs to divide the estate among themselves
without need of delay and risks of being dissipated.
When a person dies without leaving pending
obligations, his heirs, are not required to submit the
property for judicial administration, nor apply for the
appointment of an administrator by the court.
In this case , the decedent left no debts and the heirs
and legatees are all of age. With this finding, it is our
view that Section 1, Rule 74 of the Rules of Court should
apply.
Alvar, Ceballo, Cuabo
3Manresa
Nature and character of estate may be determined in a
partition proceeding
In a last-ditch effort to justify the need for an
administrator, petitioner insists that there is nothing to
partition yet, as the nature and character of the estate
have yet to be determined. We find, however, that a
complete inventory of the estate may be done during
the partition proceedings, especially since the estate
has no debts. Hence, the Court of Appeals committed
no reversible error when it ruled that the lower court
did not err in converting petitioner's action for letters of
administration into an action for judicial partition.
Nor can we sustain petitioner's argument that the order
of the trial court converting an action for letters of
administration to one for judicial partition has no basis
in the Rules of Court, hence procedurally infirm. The
basis for the trial court's order is Section 1, Rule 74 of
the Rules of Court. It provides that in cases where the
heirs disagree as to the partition of the estate and no
extrajudicial settlement is possible, then an ordinary
action for partition may be resorted to, as in this case.
We have held that where the more expeditious remedy
of partition is available to the heirs, then the heirs or
the majority of them may not be compelled to submit
to administration proceedings. The trial court
appropriately converted petitioner's action for letters of
administration into a suit for judicial partition, upon
motion of the private respondents.
4. Teves v CA
G.R. No. 109963, October 13, 1999
FACTS:
After Marcelina Cimafranca and Joaquin Teves died,
intestate and without debts, in 1943 and 1953,
respectively, their (nine) children executed extrajudicial
settlements(notarized) purporting to adjudicate unto
themselves the ownership over two parcels of land
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
belonging to their deceased parents and to alienate
their shares thereto in favour of their sister Asuncion
Teves.
plaintiffs-appellants Ricardo and Arcadia Teves filed a
complaint with RTC for the partition and reconveyance
of two parcels of land. Plaintiffs hold that said
document is spurious claiming that the signatures of
Pedro Teves, Felicia Teves and Gorgonio Teves are all
forgeries. To support this allegation, Helen T. Osmena,
daughter of Felicia Teves and Erlinda Teves, daughter of
Gorgonio Teves were presented as witnesses. Being
allegedly familiar with the style and character of the
handwriting of their parents these witnesses declared
unequivocally that the signatures of their parents
appearing on the document are forgeries.
ISSUE: WON the Extrajudicial Partition is Valid? YES.
HELD: Thus, for a partition pursuant to section 1 of Rule
74 to be valid, the following conditions must concur: (1)
the decedent left no will; (2) the decedent left no debts,
or if there were debts left, all had been paid; (3) the
heirs are all of age, or if they are minors, the latter are
represented by their judicial guardian or legal
representatives; (4) the partition was made by means of
a public instrument or affidavit duly filed with the
Register of Deeds.
Since the EJP was made in a public instrument, clear
and convincing evidence is necessary to overthrow the
presumption of validity. In this case, SC said evidence
presented is insufficient.
We uphold, finding no cogent reason to reverse, the
trial and appellate courts’ factual finding that the
evidence presented by plaintiffs-appellants is
insufficient to overcome the evidentiary value of the
extrajudicial settlements. The deeds are public
documents and it has been held by this Court that a
public document executed with all the legal formalities
is entitled to a presumption of truth as to the recitals
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3Manresa
contained therein. In order to overthrow a certificate of
a notary public to the effect that the grantor executed a
certain document and acknowledged the fact of its
execution before him, mere preponderance of evidence
will not suffice. Rather, the evidence must be so clear,
strong and convincing as to exclude all reasonable
dispute as to the falsity of the certificate. When the
evidence is conflicting, the certificate will be
upheld. The appellate court’s ruling that the evidence
presented by plaintiffs-appellants does not constitute
the clear, strong, and convincing evidence necessary to
overcome the positive value of the extrajudicial
settlements executed by the parties, all of which are
public documents, being essentially a finding of fact, is
entitled to great respect by the appellate court and
should not be disturbed on appeal.
5. Hernandez v Andal
G.R. No. L-273, March 29, 1947
Can you prove an oral partition? Yes.
EJP is not a disposition of property
FACTS: Rule 74 is not explicit in requiring that the
instrument be in writing for validity
Plaintiff Hernandez, intervenors Maria and Aquilina
Hernandez and Pedro and Basilia Hernandez are
brothers and sisters. They acquired from their father a
parcel of land. On Jan. 23, 1944, the intervenors sold
1800 square meters of this parcel of land. This portion
purports to be the combined shares of the intervenors
in the larger parcel of land, allotted to them in a verbal
partition alleged to have been made among the 5
brother and sisters.
After the sale, plaintiff Hernandez attempted to
repurchase the land sold to Andal, who refused to part
with the property. Andal said that he had been in
possession of the land in question until he returned it to
the intervenors.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
During trial, intervenors were asked if the parcel of land
has been the object of a partition.
However, the counsel for the plaintiff raised an
objection on the ground that the document of partition
was the best evidence.
ISSUE: WON an oral partition may be proved (and be
given effect) YES
HELD:
There is a conflict of authority as to whether an
agreement of partition is such a contract as is required
to be in writing under the statute of frauds. One line of
authorities holds the affirmative view; other authorities
say no. The reason for the rule that excludes partition
from the operation of the statute of frauds is that
partition is not a conveyance but simply a separation
and designation of that part of the land which belongs
to each tenant in common.
On general principle, independent and in spite of the
statute of frauds, courts of equity have enforced oral
partition when it has been completely or partly
performed.
It is on the effects of Rule 74, section 1, of the Rules of
Court on a parol partition that there are sharp
divergences of opinion among the members of this
Court. This section reads:
If the decedent left no debts and the heirs and legatees
are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing
letters of administration, divide the estate among
themselves as they see fit by means of a public
instrument file in the office of the register of deeds, and
should they disagree, they may do so in an ordinary
action of partition. If there is only one heir or one
legatee, he may adjudicate to himself the entire estate
by means of an affidavit filed in the office of the register
of deeds. It shall be presumed that the decedent left no
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debts if no creditor files a petition for letters of
administration within two years after the death of the
decedent.
It is contended that under this rule a verbal partition is
entirely void and cannot be validated by any acts of the
parties short of the execution of a public document and
its registration.
As a general proposition, transactions, so far as they
affect the parties, are required to be reduced to writing
either as a condition of jural validity or as a means of
providing evidence to prove the transactions. Written
form exacted by the statute of frauds, for example, "is
for evidential purposes only."
Section 1 of Rule 74 contains no such express or clear
declaration that the required public instruments is to be
constitutive of a contract of partition or an inherent
element of its effectiveness as between the parties. And
this Court had no apparent reason, in adopting this rule,
to make the efficacy of a partition as between the
parties dependent on the execution of a public
instrument and its registration.
The requirement that a partition be put in a public
document and registered has, in our opinion, for its
purpose the protection of creditors and at the same
time the protection of the heirs themselves against
tardy claims. Note that the last sentence of the section
speaks of debts and creditors. The object of registration
is to serve as constructive notice, and this means notice
to others. It must follow that the intrinsic validity of
partition not executed with the prescribed formalities
does not come into play when, as in this case, there
are no creditors or the rights of creditors are not
affected. No rights of creditors being involved, it is
competent for the heirs of an estate to enter into an
agreement for distribution in a manner and upon a
plan different from those provided by law.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu

Atty. Tiu : Prior to Rule 74, Sec 1, what was the rule with
respect to oral partition?
Isn’t it that Sec 1 Rule 74 requires that the agreement
must be in writing. Precisely you have to put it in a
public instrument? How is that different now from the
old rule that says that it must be written? Or is there
something more in the old rule which says that unless it
is written, it is void?
Atty. Tiu : there is a distinction between the old rule and
the new rule. Both rules require that “must be in
writing.” Correct. Section1 Rule 74 says it has to be in
writing and in a public instrument registered with the
Register of Deeds.
Does that mean that oral partition is not allowed?
Atty. Tiu: SC sad NO. Because the phrase “and not
otherwise” which was stated in the old rule was not
carried over in the new rule. Meaning to say even if the
partition is not in writing, it can still be given effect. It is
not an inherent element to the validity and effectivity of
that partition even if it is oral or verbal. Precisely, you
have an action to compel partition if you are able to
prove that oral partition in court because that is not
covered by the parol evidence rule. And the reason why
it is not covered by the parol evidence rule is because
there is no disposition of the real property. There is only
a segregation. Why? Because the transfer of ownership
occurred from the moment of death of the decedent.
There is nothing more to transfer because it happened
upon the death of the decedent. As to requirement that
it must be in writing, SC said that di na kailangan kasi it
was not carried over the “and not otherwise.” So pwede,
you can prove oral partition. And if you can prove it in
court, you can demand for the partition of the property
based on your parole evidence.
6. Cua v Vargas
G.R. No. 156536, October 31, 2006
Alvar, Ceballo, Cuabo
3Manresa
JOSEPH CUA, petitioner,
vs.
GLORIA A. VARGAS, AURORA VARGAS, RAMON
VARGAS, MARITES VARGAS, EDELINA VARGAS AND
GEMMA VARGAS, respondents.
FACTS:
A parcel of residential land was left behind by the late
Paulina Vargas.
On February 4, 1994, a notarized Extra Judicial
Settlement Among Heirs was executed by and among
Paulina Vargas' heirs, namely Ester Vargas, Visitacion
Vargas, Juan Vargas, Zenaida V. Matienzo, Rosario V.
Forteza, Andres Vargas, Gloria Vargas, Antonina Vargas
and Florentino Vargas, partitioning and adjudicating
unto themselves the lot in question, each one of them
getting a share of 11 square meters. Florentino, Andres,
Antonina and Gloria, however, did not sign the
document. Only Ester, Visitacion, Juan, Zenaida and
Rosario signed it. The Extra Judicial Settlement Among
Heirs was published in the Catanduanes Tribune for
three consecutive weeks.
On November 15, 1994, an Extra Judicial Settlement
Among Heirs with Sale was again executed by and
among the same heirs over the same property and also
with the same sharings. Once more, only Ester,
Visitacion, Juan, Zenaida and Rosario signed the
document and their respective shares totaling 55
square meters were sold to Joseph Cua, petitioner
herein.
According to Gloria Vargas, the widow of Santiago
Vargas and one of respondents herein, she came to
know of the Extra Judicial Settlement Among Heirs with
Sale dated November 16, 1994 only when the original
house built on the lot was being demolished sometime
in May 1995. She likewise claimed she was unaware
that an earlier Extra Judicial Settlement Among Heirs
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
dated February 4, 1994 involving the same property had
been published in the Catanduanes Tribune.
After knowing of the sale of the 55 square meters to
petitioner, Gloria Vargas tried to redeem the property.
When the offer to redeem was refused and after having
failed to reach an amicable settlement at the barangay
level, Gloria Vargas filed a case for annulment of Extra
Judicial Settlement and Legal Redemption of the lot
with the Municipal Trial Court (MTC) of Virac,
Catanduanes against petitioner and consigned the
amount of P100,000 which is the amount of the
purchase with the Clerk of Court on May 20, 1996.
Joining her in the action were her children with
Santiago, namely, Aurora, Ramon, Marites, Edelina and
Gemma, all surnamed Vargas.
MTC and RTC ruled in favor of petitioner but CA
reversed both Courts on appeal hence this petition.
ISSUE: Whether the heirs are deemed constructively
notified and bound, regardless of their failure to
participate therein, by an extrajudicial settlement and
partition of estate when the extrajudicial settlement
and partition has been duly published. NO
HELD:
“Notice” under Rule 74 contemplates a notice before
any deed of settlement /partition
The procedure outlined in Section 1 of Rule 74 is an ex
parte proceeding. The rule plainly states, however, that
persons who do not participate or had no notice of an
extrajudicial settlement will not be bound thereby. It
contemplates a notice that has been sent out or
issued before any deed of settlement and/or partition is
agreed upon (i.e., a notice calling all interested parties
to participate in the said deed of extrajudicial
settlement and partition), and not after such an
agreement has already been executed as what
Alvar, Ceballo, Cuabo
3Manresa
happened in the instant case with the publication of the
first deed of extrajudicial settlement among heirs.
The publication of the settlement does not constitute
constructive notice to the heirs who had no knowledge
or did not take part in it because the same was notice
after the fact of execution. The requirement of
publication is geared for the protection of creditors and
was never intended to deprive heirs of their lawful
participation in the decedent's estate. In this
connection, the records of the present case confirm
that respondents never signed either of the settlement
documents, having discovered their existence only
shortly before the filing of the present complaint.
Following Rule 74, these extrajudicial settlements do
not bind respondents, and the partition made without
their knowledge and consent is invalid insofar as they
are concerned.
This is not to say, though, that respondents' co-heirs
cannot validly sell their hereditary rights to third
persons even before the partition of the estate. The
heirs who actually participated in the execution of the
extrajudicial settlements, which included the sale to
petitioner of their pro indiviso shares in the subject
property, are bound by the same. Nevertheless,
respondents are given the right to redeem these shares
pursuant to Article 1088 of the Civil Code. The right to
redeem was never lost because respondents were
never notified in writing of the actual sale by their co-
heirs. Based on the provision, there is a need for written
notice to start the period of redemption, thus:
Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs
may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they
do so within the period of one month from the time they
were notified in writing of the sale by the vendor.
Redemption period has not yet lapsed
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
It bears emphasis that the period of one month shall be
reckoned from the time that a co-heir is notified in
writing by the vendor of the actual sale. Written notice
is indispensable and mandatory, actual knowledge of
the sale acquired in some other manner by the
redemptioner notwithstanding. It cannot be counted
from the time advance notice is given of an impending
or contemplated sale. The law gives the co-heir thirty
days from the time written notice of the actual sale
within which to make up his or her mind and decide to
repurchase or effect the redemption.
Though the Code does not prescribe any particular form
of written notice nor any distinctive method for written
notification of redemption, the method of notification
remains exclusive, there being no alternative provided
by law. This proceeds from the very purpose of Article
1088, which is to keep strangers to the family out of a
joint ownership, if, as is often the case, the presence of
outsiders be undesirable and the other heir or heirs be
willing and in a position to repurchase the share sold.
It should be kept in mind that the obligation to serve
written notice devolves upon the vendor co-heirs
because the latter are in the best position to know the
other co-owners who, under the law, must be notified
of the sale. This will remove all uncertainty as to the
fact of the sale, its terms and its perfection and validity,
and quiet any doubt that the alienation is not definitive.
As a result, the party notified need not entertain doubt
that the seller may still contest the alienation.
Considering, therefore, that respondents' co-heirs failed
to comply with this requirement, there is no legal
impediment to allowing respondents to redeem the
shares sold to petitioner given the former's obvious
willingness and capacity to do so.
Petitioner not a builder in good faith
Likewise untenable is petitioner's contention that he is
a builder in good faith. Good faith consists in the belief
Alvar, Ceballo, Cuabo
3Manresa
of the builder that the land the latter is building on is
one's own without knowledge of any defect or flaw in
one's title.Petitioner derived his title from the Extra
Judicial Settlement Among Heirs With Sale dated
November 15, 1994. He was very much aware that not
all of the heirs participated therein as it was evident on
the face of the document itself. Because the property
had not yet been partitioned in accordance with the
Rules of Court, no particular portion of the property
could have been identified as yet and delineated as the
object of the sale. This is because the alienation made
by respondents' co-heirs was limited to the portion
which may be allotted to them in the division upon the
termination of the co-ownership. Despite this glaring
fact, and over the protests of respondents, petitioner
still constructed improvements on the property. For this
reason, his claim of good faith lacks credence.
As to the issue of lack of jurisdiction, petitioner is
estopped from raising the same for the first time on
appeal. Petitioner actively participated in the
proceedings below and sought affirmative ruling from
the lower courts to uphold the validity of the sale to
him of a portion of the subject property embodied in
the extrajudicial settlement among heirs. Having failed
to seasonably raise this defense, he cannot, under the
peculiar circumstances of this case, be permitted to
challenge the jurisdiction of the lower court at this late
stage. While it is a rule that a jurisdictional question
may be raised at any time, an exception arises where
estoppel has already supervened.
Estoppel sets in when a party participates in all stages
of a case before challenging the jurisdiction of the lower
court. One cannot belatedly reject or repudiate its
decision after voluntarily submitting to its jurisdiction,
just to secure affirmative relief against one's opponent
or after failing to obtain such relief. The Court has, time
and again, frowned upon the undesirable practice of a
party submitting a case for decision and then accepting
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the judgment, only if favorable, and attacking it for lack
of jurisdiction when adverse.
Atty. Tiu: In the case of Cua, what was the significance
of the ruling that the publication did not constitute
constructive notice to the heirs?
Persons who did not participate and had no notice of
the extrajudicial settlement should not be bound
thereby. Because heirs should not be deprived of their
lawful participation of the Estate.
Atty. Tiu: But the fact that it was published, isn’t that
enough notice about the fact of the settlement such that
even the persons/heirs shall be deemed notified of the
fact of settlement?
Although it can be construed that there is constructive
notice to the whole world upon publication, it remains
that there could be fraud amongst the heirs that they
may be deprived of the participation of the estate. It
would be easy for the heirs to exclude somebody who
also had rightful shares to the estate.
Atty. Tiu: What is the nature of the proceeding under
Sec1, Rule 74?
A: Ex-parte.
Meaning?
A: An ex parte proceeding is proceeded by a single
person and it is not adversarial in nature.
Why is the publication here in Cua not considered
constructive notice?
Because the notice was given after the fact of execution.
The settlement was already executed, therefore, there
Alvar, Ceballo, Cuabo
3Manresa
was distribution among the heirs. It cannot be construed
as a constructive notice as there was already execution
of the estate thereof.
7. Sampilo v CA
FACTS:
Teodoro Tolete died intestate in January, 1945. He left
several parcels of land. On July 25, 1946, Leoncia de
Leon executed an affidavit stating that she is the only
person who is to inherit the properties as the deceased
left no children. The affidavit was thereafter field with
the Register of deeds. On the same day, she executed a
deed of sale of all the above parcels of land in favor of
Benny Sampilo for the sum of P10,000. This sale was
also registered in the Office of the Register of Deeds of
Pangasinan. On June 17, 1950, Benny Sampilo, in turn,
sold the said parcels of land to Honorato Salacup for
P50,000 and this sale was also registered in the Office of
the Register of Deeds of Pangasinan.
On March 1950, Sinopera instituted proceedings for the
administration of the estate of Teodoro Tolete and
having secured her appointment as administratrix,
brought the present action on June 20, 1950.
Sinopera alleged that the widow Leoncia de Leon, had
no right to execute the affidavit of adjudication and that
Honorato Salacup acquired no rights to the lands sold to
him, and that neither had Benny Sampilo acquired any
right to the said properties.
De leon and Sampilo argued that the right of action of
the (Sinopera) administratrix has prescribed and lapsed
because the same was not brought within the period of
two years as Prescribed in Section 4 of Rule 74 of the
Rules of Court.
ISSUE: WON the right of action of the administratix has
prescribed? NO
HELD:
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
NEW RULE (Sections 1 and 4 of Rule 74) VS. OLD RULE
Section 596, Act No. 190
We notice two significant provisions in Sections 1 and 4
of Rule 74. In Section 1, it is required that if there are
two or more heirs, both or all of them should take part
in the extrajudicial settlement. This requirement is
made more imperative in the old law (Section 596, Act
No. 190) by the addition of the clause "and not
otherwise." By the title of Section 4, the "distributees
and estate" are indicates the persons to answer for
rights violated by the extrajudicial settlement. On the
other hand, it is also significant that no mention is made
expressly of the effect of the extrajudicial settlement on
persons who did not take part therein or had no notice
or knowledge thereof. There cannot be any doubt that
those who took part or had knowledge of the
extrajudicial settlement are bound thereby. As to them
the law is clear that if they claim to have been in any
manner deprived of their lawful right or share in the
estate by the extrajudicial settlement, they may
demand their rights or interest within the period of two
years, and both the distributes and estate would be
liable to them for such rights or interest. Evidently, they
are the persons in accordance with the provision, may
seek to remedy, the prejudice to their rights within the
two-year period. But as to those who did not take part
in the settlement or had no notice of the death of the
decedent or of the settlement, there is no direct or
express provision is unreasonable and unjust that they
also be required to assert their claims within the period
of two years.
With the advent of the new rules, the remedy that can
be availed of in order to recover property is not limited
to that which is provided under Rule 74
The provisions of Section 4 of Rule 74, barring
distributees or heirs from objecting to an extrajudicial
partition after the expiration of two years from such
extrajudicial partition, is applicable only (1) to persons
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who have participated or taken part or had notice of the
extrajudicial partition, and, in addition, (2) when the
provisions of Section 1 of Rule 74 have been strictly
complied with, i.e., that all the persons or heirs of the
decedent have taken part in the extrajudicial settlement
or are represented by themselves or through guardians.
The case at bar fails to comply with both requirements
because not all the heirs interested have participated in
the extrajudicial settlement, the Court of Appeals
having found that the decedent left aside from his
widow, nephews and nieces living at the time of his
death.
Atty.Tiu: In the case of Sampilo, the remedy availed of
by the administratix is the filing of judicial settlement
case and pursuing the properties by asking for an
appointment of administrator. Therefore, it is not
covered by the two year limitation under Rule 74.
Not barred by Statute of limitations on Fraud
The period from the limitation start to run is from the
time of discovery, so the complaint was filed well within
the period allowed.
8. Alcala v Pabalan
G.R. No. L-6463, August 12, 1911
FACTS:
On April 23, 1897, Juan Banatin died, leaving a widow
Damasa Alcala (plaintiff herein) and 17 nieces and
nephews. On the 13th day of June 1897, the said widow
and 17 nieces and nephews (except Tranquilina
Banatin) entered into a voluntary agreement among
themselves for the division of all the property left by
the decedent, except the house described in paragraph
4 of the petition. By terms of said agreement, the said
house was to remain undivided, that the widow should
receive ½ of the usufruct of said house during her
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
lifetime, and other half should be distributed equally
among the other 17 heirs.
Francisco Salgado, based on the agreement, was to
administer said house and collect rents for the same.
However, he failed to pay to Damasa her share of the
usufruct of the property. He was sued and a judgment
rendered in favor of Damasa. An execution was issued
upon said judgment and ½ of the undivided property in
question was sold to Macario Decena. This was
repurchased by the heirs of Salgado, the money which
was used belonged to the 4 heirs of Juan Banatin. The
other heirs
ISSUE: WON the heirs can divide the property
extrajudicially YES
What is the effect of extrajudicial settlement? It renders
settlement proceeding unnecessary
HELD:
With reference to this assignment of error, the heirs of
Juan Banatin were at perfect liberty to divide the estate
among themselves, assuming the responsibility of any
debts which might exist. There is no proof that any
debts existed. After the actual division of the estate
among themselves they became the absolute owners of
their respective allotments and were tenants in
common of that portion of the property which
remained pro indiviso. After the mutual agreement
among themselves for the division of the estate, either
actually distributing their respective shares or leaving
the same undivided, the property in question was no
longer the property of the estate of Juan Banatin, but
the undivided property of the heirs. They were tenant in
common of that portion of the property which
remained undivided. As such tenants in common the
majority of them had a right to agree upon the
appointment of an administrator of their property. (Art.
398, Civil Code.) The property belonged to them. They
had a right to administer it.
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The lower court in appointing the plaintiff and appellee
as administratrix of the property in question, evidently
did so upon the theory that the said property was still
the property of the estate of Juan Banatin. In this theory
the lower court was mistaken. There was nothing left of
the estate of Juan Banatin to be administered. The heirs
by mutual agreement had divided the property among
themselves. There was no occasion and no reason for
the appointment of an administrator by the probate
court, and, therefore, the judgment of the lower court
appointing Damasa Alcala as administratrix of the estate
of Juan Banatin for the purpose of administering the
property mentioned in paragraph 4 of the petition, is
hereby revoked.
What is the effect of an extrajudicial settlement? What
is the gist of this case?
Atty. Tiu: The general effect is that there is no more
estate to speak of. It renders the settlement proceeding
superfluous or unnecessary. It bars the filing of the
settlement claims. It bars the filing of a petition for the
issuance of letters of administration or for the
appointment of an administrator of a nonexistent
estate. That is the general and logical effect when you
have an extrajudicial settlement. Nothing to administer
because the property now belongs exclusively to the
heirs who received their shares! So it bars the filing of an
administration case, and if there is already one filed,
then it calls for the dismissal of such.
Excluded Heirs
1. Sampilo v CA
G.R. No. L-10474, February 28, 1958
BENNY SAMPILO and HONORATO SALACUP,
petitioners, vs. THE COURT OF APPEALS and FELISA
SINOPERA respondent.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
What are the remedies of an excluded heir? If you are
an excluded heir, and then you discovered that your
relatives have already settled among themselves the
estate of the deceased person, what are your remedies?
 Seek appointment as administrator
 File a case for recovery as such administrator
FACTS:
Teodoro Tolete died intestate leaving 4 parcels of land,
lots Nos. 12006, 119967, 14352 and . He left as heirs his
widow, Leoncia de Leon, and several nephews and
nieces, children of deceased brothers and sisters.
On July 25, 1946, without any judicial proceedings, his
widow executed an affidavit stating that "the deceased
Teodoro Tolete left no children or respondent neither
ascendants or acknowledged natural children neither
brother, sisters, nephews or nieces, but the, widow
Leoncia de Leon, the legitimate wife of the deceased,
the one and only person to inherit the above
properties" .
This affidavit was registered in the Office of the
Register of Deeds of Pangasinan. On the same day, she
executed a deed of sale of all the above parcels of land
in favor of Benny Sampilo for the sum of P10,000. This
sale was also registered in the Office of the Register of
Deeds of Pangasinan. On June 17, 1950, Benny Sampilo,
in turn, sold the said parcels of land to Honorato
Salacup for P50,000 and this sale was also registered in
the Office of the Register of Deeds of Pangasinan .
In March, 1950, Felisa Sinopera instituted proceedings
for the administration of the estate of Teodoro Tolete
and having secured her appointment as administratrix,
brought the present action to recover ½ of the subject
lost allegedly belonging to Teodoro. Notice of lis
pendens was filed in the Office of the Register of Deeds
and said notice was recorded on certificates of title
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covering the said properties on June 26, 1950. This
notice, however, was subsequent to the registration of
the deed of sale, in favor of Honorato Salacup, which
took place on June 17, 1950.
The complaint alleges that the widow Leoncia de Leon,
had no right to execute the affidavit of adjudication and
that Honorato Salacup acquired no rights to the lands
sold to him, and that neither had Benny Sampilo
acquired any right to the said properties. Sampilo and
Salacup filed an amended answer alleging that the
complaint states no cause of action; that if such a cause
exists the same is barred by the statute of limitations;
that defendants are innocent purchasers for value; and
that the complaint is malicious, frivolous and spurious,
intended to harass and inconvenience the defendants.
RTC rendered the sale NULL and VOID .
In the present petition, one of the contentions by
petitioner is that the action was instituted almost four
years after the affidavit of adjudication was registered
in the Office of the Register of Deeds Of Pangasinan, the
right of action of the administratrix has prescribed and
lapsed because the same was not brought within the
period of two years as Prescribed in Section 4 of Rule 74
of the Rules of Court, and as decided in the cases of
McMickingvs. Sy Conbieng, 21 Phil., 211 and Ramirez vs.
Gmur, 42 Phil., 855 869.
ISSUE: WON the sale by the widow is void.
HELD:
Section 4 of Rule 74 provides, in part, as follows:
SEC. 4. Liability of distributees and estate. — If it shall
appear at any time within two years after the
settlement and distribution of an estate in accordance
with the provisions of either of the first two sections of
this rule, that an heir or other has been unduly deprived
of his lawful participation of the such heir or such other
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
person may compel the settlement estate in the courts
in the manner hereinafter provided for the purpose of
satisfying such lawful participation. . . .
Section 1, which is mentioned in Section 4, reads as
follows:
SEC. 1. Extrajudcial settlement by agreement between
the heirs. — If the decedent left no debts and the heirs
and legatees are all of age, or the minors are
represented by their judicial guardians, the parties may,
without securing letters of administration, divide the
estate among themselves as they see fit by means of a
public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in an
ordinary action of partition. If there is only one heir or
one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent
left no debts if no creditor files a petition for letters of
administration within two years after the death of the
decedent.
It will be noted that the provision next above-quoted
contains two parts, the first referring to a case in which
there are two or more heirs interested in the estate of a
deceased person, and the second in which there is only
one heir. The section was taken from Section 596 of the
old Code of Civil Procedure (Act No. 190, as amended by
Act No. 2331). Said Section 596 as amended, was as
follows:
SEC. 596. Settlement of Certain Intestates Without Legal
Proceedings. — Whenever all the heirs of a person who
died intestate are of lawful age and legal capacity and
there are no debts due from the estate, or all the debts
have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise,
apportion and divide the estate among themselves, as
they may see fit, without proceedings in court.
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“Two year” prescriptive period applies to those who
took part or had knowledge of settlement ; as to those
who had no knowledge, the law is vague and
insufficient as to the prescriptive period.
We notice two significant provisions in Sections 1 and 4
of Rule 74. In Section 1, it is required that if there are
two or more heirs, both or all of them should take part
in the extrajudicial settlement. This requirement is
made more imperative in the old law (Section 596, Act
No. 190) by the addition of the clause "and not
otherwise." By the title of Section 4, the "distributees
and estate" are indicates the persons to answer for
rights violated by the extrajudicial settlement. On the
other hand, it is also significant that no mention is made
expressly of the effect of the extrajudicial settlement on
persons who did not take part therein or had no notice
or knowledge thereof. There cannot be any doubt that
those who took part or had knowledge of the
extrajudicial settlement are bound thereby. As to them
the law is clear that if they claim to have been in any
manner deprived of their lawful right or share in the
estate by the extrajudicial settlement, they may
demand their rights or interest within the period of two
years, and both the distributes and estate would be
liable to them for such rights or interest.
Evidently, they are the persons in accordance with the
provision, may seek to remedy, the prejudice to their
rights within the two-year period. But as to those who
did not take part in the settlement or had no notice of
the death of the decedent or of the settlement, there is
no direct or express provision is unreasonable and
unjust that they also be required to assert their claims
within the period of two years.
To extend the effects of the settlement to them, to
those who did not take part or had no knowledge
thereof, without any express legal provision to that
effect, would be violative of the fundamental right to
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
due process of law. In the case of Ramirez vs. Gmur,
supra, cited by the appellants in this case, we held:
It will be noted that while the law (see. 754) provides
that the order of distribution may be had upon the
application of the executor or administrator, or of a
person interested in the estate, no provision is made for
notice, by publication or otherwise, of such application.
The proceeding, therefore, is to all intents and purposes
ex parte. As will be seen our law is very vague and
incomplete; and certainly it cannot be held that a purely
ex parte proceeding, had without notice by personal
service or by publication, by which the court undertakes
to distribute the property of deceased persons, can be
conclusive upon minor heirs who are not represented
therein.
The procedure outlined in Section 1 of Rule 74 of
extrajudicial settlement, or by affidavit, is an ex parte
proceeding. It cannot by any reason or logic be
contended that such settlement or distribution would
affect third persons who had no knowledge either of
the death of the decedent or of the extrajudicial
settlement or affidavit, especially as no mention of such
effect is made, either directly or by implication. We
have examined the two cases cited by appellants and
there is no similarity at all between the circumstances
on which the ruling therein had been predicated and
those of the case at bar.
Two year rule does not apply to herein respondent
When is the Two Year Rule Applicable?
Following the above-quoted decision of this Court in the
case of Ramirez vs. Gmur, supra, we are of the opinion
and so hold that the provisions of Section 4 of Rule 74,
barring distributees or heirs from objecting to an
extrajudicial partition after the expiration of two years
from such extrajudicial partition, is applicable only (1) to
persons who have participated or taken part or had
notice of the extrajudicial partition, and, in addition, (2)
when the provisions of Section 1 of Rule 74 have been
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strictly complied with, i.e., that all the persons or heirs
of the decedent have taken part in the extrajudicial
settlement or are represented by themselves or
through guardians. The case at bar fails to comply with
both requirements because not all the heirs interested
have participated in the extrajudicial settlement, the
Court of Appeals having found that the decedent left
aside from his widow, nephews and nieces living at the
time of his death.
The present action by respondent is based on fraud
which prescribes in 4 years
The next contention of appellants is that plaintiff's
action is barred by the statute of limitations. The origin
of the Provision (Section 4, Rule 74), upon which this
contention is predicated, which is Section 596 of Act No.
190, fails to support the contention. In the first Place,
there is nothing therein, or in its source which shows
clearly a statute of limitations and a bar of action
against third person's. It is only a bar against the parties
who had taken part in the extrajudicial proceedings but
not against third persons not Parties thereto. In the
second place, the statute of limitations is contained in a
different chapter of Act No. 190, Chapter XL, and if
Section 596 of the Act had been meant to be a statute
of limitations, it would naturally have been included in
the chapter which defines the statute.
But even if Section 4 of Rule 74 is a statute of
limitations, it is still unavailing to the defendants. The
action is one based on fraud, as the widow of the
deceased owner of the lands had declared in her
affidavit of partition that the deceased left no nephews
or niece, or other heirs except herself. Plaintiff's right
which is based on fraud and which has a period of four
years (Section 43, par. 3, Act no. 190; Article 1146, Civil
Code), does not appear to have lapsed the action was
instituted. Judicial proceedings where instituted in
March, 1950 and these proceedings must have been
instituted soon after the discovery of fraud. In any case,
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the defendants have the burden of proof as to their
claim of the statute of limitations, which is their
defense, and they have not proved that when the action
was instituted, four years had already elapsed from the
date that the interested parties had actual knowledge
of the fraud.
The second assignment of error, i.e., that the
defendants-appellants are innocent purchasers for
value was rejected as unfounded by the court of
Appeals. Said court said.
Atty. Tiu: In the Sampilo case, the first step was to file a
judicial settlement case. Nagpa-appoint muna siya as
administrator bago niya hinabol ang properties. That
was the remedy availed of.
What was the ruling of the SC? Were they able to
recover the property?
It prospered! So that is one of the proper remedies. File
a judicial settlement, ask for the court to appoint you as
administrator, and then habulin mo ang properties.
2. Llanera v Lopos
G.R. No. L-12588, August 25, 1959
ELIGIO LLANERA, plaintiff-appellant, vs. ANA LOPOS,
ET AL., defendants-appellants.
FACTS:
Gorgonio Llanera died single and intestate on October
13, 1942 leaving an estate consisting of the proceeds of
an insurance policy amounting to $5,150. The first
cousin of the deceased filed a petition for estate
alleging that they were the only heir and so the estate
was distributed to them.
It turned out however that the deceased had brother
Zacarias( who is also dead) who had a son name Eligio.
Eligio commenced this action in the CFI to recover the
proceeds of the insurance policy left by his uncle against
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those to whom they were illegally adjudicated alleging
that the latter misrepresented that they were the only
heirs of the deceased when in fact they knew well that
he left a nephew who was alive and was the only one
entitled to inherit his property.
CFI dismissed the complaint on the ground that the
action has already prescribed. The trial court also said:
"The claim of the plaintiff, in the opinion of the Court,
was filed out of time. In summary settlement of the
estate of a deceased person, any heir deprived of his
lawful participation therein should file the
corresponding petition in the court having jurisdiction
of the estate within two years after the settlement and
distribution thereof (sec. 4, Rule 74, Rules of
Court).While the Rules of the Court do not prescribe
any time limit during which an heir deprived of his
lawful participation in the state of a person which was
settled in a regular testate or intestate proceeding,
Article 1100 of the Civil Code, however, provides that
action for rescission on account of "lesion" shall
prescribe after four years from the time the partition
was made. Considering that judicial partition of the
estate of Gorgonio Llanera was made on May 17, 1949,
hence plaintiff's action was commenced beyond the
prescriptive period provided by law."
ISSUE: Won the trail court was correct in dismissing the
complaint? NO
HELD:
The action filed by eligio was to recover property
based on fraud and not based on lesion
Again, we find this reasoning incorrect, for it overlooks
the fact that the present action is not for rescission of a
contract based on "lesion" but an action to recover
property based on fraud which under our law may be
filed within a period of four years from the discovery of
the fraud. (sec. 43 par. 3, Act 190). Since, as alleged in
the complaint, fraud was discovered only in 1953 and
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the action was brought in 1955, it is clear that plaintiff's
action has not yet prescribed. It is therefore an error to
dismiss the complaint based on prescription.
3. Villaluz v Neme
G.R. No. L-14676, January 31, 1963
Remedy: complaint for partition
FACTS:
Maria Rocabo died intestate on Feb 17, 1937, leaving a
parcel of land. She left 3 daughters named Sinforosa,
Patricia and Maria, surnamed Villaluz and
grandchildren, Candida, Emilia, Clemencia, Roberto and
Isidra Villaluz, legitimate children of her deceased son
Pedro Villaluz; Isabelo and Teodoro Napoles, legitimate
sons of a deceased daughter; Severina Villaluz and
Sinforosa and Leonor Napoles, legitimate daughters of
another deceased daughter, Gregoria Villaluz.
After the approval of her application, but before
granting of the patent, on March 6, 1926, Maria Rocabo
donated the southern portion of the land to Maria, and
the northern portion to Patricia, in two notarial deeds
donation, giving them the right to present their deeds
of donations to the Bureau of Lands. The said donees
accepted the donations and took actual possession of
their respective portions, but only Maria Villaluz
remained on the entire land because Patricia left. Maria
cultivated and improved the land from 1927 to 1938,
inclusive. Maria and Patricia, however, forgot and cared
not to present the deeds of donation to the Bureau of
Lands. On March 27, 1930, the patent was granted and
O.C.T. No. 217 was issued in the name of Maria Rocabo.
Realizing that the deeds of donation were not in
accordance with the formalities required by law, and
because Sinforosa Villaluz, who had the custody of the
title would not surrender it to the donees, unless given
a share, upon the advise of a Notary Public, Carlos de
Jesus, Maria, Patricia and Sinforosa, on September 1,
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1939, executed a deed of extrajudicial partition among
themselves, to the exclusion and without the
knowledge and consent of their nephews and nieces,
the herein plaintiffs-appellants, and in virtue thereof,
O.C.T. No. 217 was cancelled and Transfer Certificate of
Title No. 269 was issued in their names after having
made representations that they were the only heirs of
their mother, Maria Rocabo.
After attempts of amicable settlement had failed, the
plaintiffs on June 3, 1954, filed a complaint for partition
of said land and recovery of their respective shares on
the property and accounting of the fruits thereof.
ISSUE: WON the extrajudicial partition is binding to the
other heirs NO
HELD:
The deed of extrajudicial partition (Exh. 2), was
fraudulent and vicious, the same having been executed
among the 3 sisters, without including their co-heirs,
who had no knowledge of and consent to the same. The
partition, therefore, did not and could not prejudice the
interest and participation of the herein plaintiffs-
appellants, and the sale of the land to the defendants
did not and could not also prejudice and effect
plaintiffs-appellants' interest and participation thereon.
The cancellation of O.C.T. No. 217 and the issuance of
T.C.T. No. 269, did not likewise prejudice the interest
and the participation of the plaintiffs-appellants. The
three sisters could not have sold what did not belong to
them. Nemo dat quod non habet.
Issue as to WON the action has prescribed
The trial court held that under Sec. 4, Rule 73 of the
Rules, the plaintiffs' cause of action had already
prescribed. This section, however, refers only to the
settlement and distribution of the estate of the
deceased by the heirs who make such partition among
themselves in good faith, believing that they are the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
only heirs with the right succeed. In the case at bar,
however, the surviving sisters could not have ignored
that they had co-heirs, the children of the 3 brothers
who predeceased their mother. Considering that Maria
Rocabo died during the regime of the Spanish Civil
Code, the distribution of her properties should be
governed by said Code, wherein it is provided that
between co-heirs, the act to demand the partition of
the inheritance does not prescribe. (Art 1965 [Old Civ.
Code]; Baysa, et al. v. Baysa, 53 Off. Gaz., 7282). Verily
the 3 living sisters were possessing the property as
administratrices or trustees for and in behalf of the
other co-heirs, plaintiffs-appellants herein, who have
the right to vindicate their inheritance, regardless of the
lapse of time.
4. Ancog v CA
G.R. No. 112260 June 30, 1997
JOVITA YAP ANCOG, and GREGORIO YAP, JR.,
petitioners, vs. COURT OF APPEALS, ROSARIO DIEZ,
and CARIDAD YAP, respondents.
FACTS:
The land, with improvements thereon, was formerly the
conjugal property of the spouses Gregorio Yap and
Rosario Diez. In 1946, Gregorio Yap died, leaving his
wife, private respondent Rosario Diez, and children,
petitioners Jovita Yap Ancog and Gregorio Yap, Jr., and
private respondent Caridad Yap as his heirs.
Rosario Diez applied , for the second time, for a loan to
the bank, offering the land in question as security. The
bank’s lawyer suggested that she submit an extrajudicial
settlement covering the disputed land as a means of
facilitating the approval of her application. The
suggestion was accepted and an extrajudicial
settlement, which the heirs, with the exception of
petitioner Gregorio Yap, Jr., then only 15 years old,
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3Manresa
signed. Upon the execution of a REM on the land, the
loan was approved.
Rosario Diez exercised rights of ownership over the
land. In 1985, she brought an ejectment suit against
petitioner Jovita Yap Ancog's husband and son to evict
them from the ground floor of the house built on the
land for failure to pay rent. Shortly thereafter,
petitioner Jovita Ancog learned that private respondent
Rosario Diez had offered the land for sale.
Petitioner Ancog immediately informed her younger
brother, petitioner Gregorio Yap, Jr., who was living in
Davao, of their mother's plan to sell the land. They filed
this action for partition in the Regional Trial Court of
Bohol .
Action for partition
Petitioners alleged that the extrajudicial instrument was
simulated and therefore void. They claimed that in
signing the instrument they did not really intend to
convey their interests in the property to their mother,
but only to enable her to obtain a loan on the security
of the land to cover expenses for Caridad's school fees
and for household repairs.
At the pre-trial conference, the parties stipulated:
1. That the parcel of land in question originally belonged
to the conjugal partnership of spouses Gregorio Yap and
Rosario Diez Yap;
2. That Gregorio Yap, Jr. is the legitimate child of
spouses Gregorio Yap and Rosario Diez Yap;
3. That Gregorio Yap is not a party in the execution of
the Extra Judicial Settlement of the Estate dated April 4,
1961;
4. That all the encumbrances found in the TCT are
admitted by the plaintiffs subject to the condition that
the Extra Judicial Settlement of Estate , was made by
the parties that the same was only for the purpose of
securing a loan with the Philippine National Bank.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
RTC and CA affirmed the validity of the Extra Judicial
Settlement.
ISSUE:
WON the extrajudicial settlement executed by Rosario
and signed by the other heirs was valid. Extrajudicial
settlement is valid but Gregorio Yap, Jr. is not barred by
laches from recovering his share in the property in
question.
HELD:
That the heirs (Jovita Yap Ancog and Caridad Yap)
meant the extrajudicial settlement to be fully effective
is shown by the fact that Rosario Diez performed acts of
dominion over the entire Land, beginning with its
registration, without any objection from them. Instead,
petitioner Jovita Ancog agreed to lease the land from
her mother, private respondent Rosario Diez, and
accepted from her a special power of attorney to use
the land in question as collateral for a loan she was
applying from the DBP. Indeed it was private
respondent Diez who paid the loan of the Ancogs in
order to secure the release of the property from
mortgage.
Petitioner Jovita Yap Ancog contends that she could not
have waived her share in the land because she is
landless. For that matter, private respondent Caridad
Yap is also landless, but she signed the agreement. She
testified that she did so out of filial devotion to her
mother.
Thus, what the record of this case reveals is the
intention of Jovita Ancog and Caridad Yap to cede their
interest in the land to their mother Rosario Diez. It is
immaterial that they had been initially motivated by a
desire to acquire a loan. Under Art. 1082 of the Civil
Code, every act which is intended to put an end to
indivision among co-heirs is deemed to be a partition
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even though it should purport to be a sale, an exchange,
or any other transaction.
We hold, however, that the Court of Appeals erred in
ruling that the claim of petitioner Gregorio Yap, Jr. was
barred by laches. In accordance with Rule 74, §1 9 of
the Rules of Court, as he did not take part in the
partition, he is not bound by the settlement.
It is uncontroverted that, at the time the extrajudicial
settlement was executed, Gregorio Yap, Jr. was a minor.
For this reason, he was not included or even informed
of the partition.
Instead, the registration of the land in Rosario Diez's
name created an implied trust in his favor by analogy to
Art. 1451 of the Civil Code, which provides:
When land passes by succession to any person and he
causes the legal title to be put in the name of another, a
trust is established by implication of law for the benefit
of the true owner.
In the case of O'Laco v. Co Cho Chit, Art. 1451 was held
as creating a resulting trust, which is founded on the
presumed intention of the parties. As a general rule, it
arises where such may be reasonably presumed to be
the intention of the parties, as determined from the
facts and circumstances existing at the time of the
transaction out of which it is sought to be established.
In this case, the records disclose that the intention of
the parties to the extrajudicial settlement was to
establish a trust in favor of petitioner Yap, Jr. to the
extent of his share. Rosario Diez testified that she did
not claim the entire property, while Atty. de la Serna
added that the partition only involved the shares of the
three participants.
A cestui que trust may make a claim under a resulting
trust within 10 years from the time the trust is
repudiated. Although the registration of the land in
private respondent Diez's name operated as a
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
constructive notice of her claim of ownership, it cannot
be taken as an act of repudiation adverse to petitioner
Gregorio Yap, Jr.'s claim, whose share in the property
was precisely not included by the parties in the
partition. Indeed, it has not been shown whether he
had been informed of her exclusive claim over the
entire property before 1985 when he was notified by
petitioner Jovita Yap Ancog of their mother's plan to sell
the property.
This Court has ruled that for prescription to run in favor
of the trustee, the trust must be repudiated by
unequivocal acts made known to the cestui que trust
and proved by clear and conclusive evidence.
Furthermore, the rule that the prescriptive period
should be counted from the date of issuance of the
Torrens certificate of title applies only to the remedy of
reconveyance under the Property Registration Decree.
Since the action brought by petitioner Yap to claim his
share was brought shortly after he was informed by
Jovita Ancog of their mother's effort to sell the
property, Gregorio Yap, Jr.'s claim cannot be considered
barred either by prescription or by laches.
5. Arenas v Roces
G.R. No. 147468, April 9, 2003
SPOUSES EDUARDO ARENAS DOMINGO & JOSEFINA
CHAVEZ DOMINGO, petitioners, vs. LILIA MONTINOLA
ROCES, CESAR ROBERTO M. ROCES, ANA INES
MAGDALENA ROCES TOLENTINO, LUIS MIGUEL M.
ROCES, JOSE ANTONIO M. ROCES and MARIA VIDA
PRESENTACION ROCES,respondents.
FACTS:
Spouses Cesar and liliaRoces owned two contiguous
parcels of land. When Cesar died in 1980, he left his
surviving spouse and 4 children (respondents of this
case).
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On 1992, Montinola, a nephew of Lilia Roces, executed
an affidavit of self-adjudication over the Arayat
properties alleging that spouses Rocesdied and that the
spouses left no heirs except the brother of Lilia Roces,
who was his father; that neither of the spouses left any
will nor any debts; and that he was the sole heir of the
Roces spouses.Montinola executed a deed of absolute
sale of the property in favor of petitioner spouses
Eduardo and Josefina Domingo. Both TCT Nos. 7299 and
7673 contained the following annotation:
Subject to the provision of Section 4, Rule 74 of the Rules
of Court with respect to the inheritance left by the
deceased SPS. CESAR ROCES & LILIA MONTINOLA
When respondents learned of the sale of the property
to petitioners, they filed a complaint against Montinola
and petitioners with the RTC. They argued that the
affidavit of self-adjudication was fraudulent because
Montinola was not an heir of the Roces spouses and it
was not true that Lilia Roces was dead. Therefore, the
affidavit of self-adjudication, as well as the deed of
absolute sale all covering the subject property, were
null and void.
Petitioners alleged that they were buyers in good faith
and that their action was barred by estoppel and laches.
ISSUE: WON the petitioners are purchasers in good
faith? NO
HELD:
Petitioners cannot be considered buyers in good faith
and cannot now avoid the consequences brought
about by the application of Rule 74, Section 4 of the
Rules of Court.
Rule 74 Section 4 covers transfers of real property
to any person, as long as the deprived heir or creditor
vindicates his rights within two years from the date of
the settlement and distribution of estate. Contrary to
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
petitioners’ contention, the effects of this provision are
not limited to the heirs or original distributees of the
estate properties, but shall affect any transferee of the
properties.
In David v. Malay,it was held that the buyer of real
property the title of which contain an annotation
pursuant to Rule 74, Section 4 of the Rules of Court
cannot be considered innocent purchasers for value. In
the same vein, the annotation at the back of TCT No.
7299 in this case referring to Rule 74, Section 4 of the
Rules of Court was sufficient notice to petitioners of the
limitation on Montinola’s right to dispose of the
property. The presence of an irregularity which excites
or arouses suspicion should prompt the vendee to look
beyond the certificate and investigate the title of the
vendor appearing on the face thereof. Purchasers of
registered land are bound by the annotations found at
the back of the certificate of title.
Participating Heir (Rule 74, Sec. 1, 4)
Unpaid /Defrauded Creditor (Rule 74, Sec. 1, 4)
Liability under Rule 74 , Sec. 4
1. Tan v Benolirao
G.R. No. 153820, October 16, 2009
FACTS:
Spouses Lamberto and Erlinda Benolirao and the
Spouses Reynaldo and Norma Taningco were the co-
owners of a 689-square meter parcel of land (property)
located in Tagaytay City. On October 6, 1992, the co-
owners executed a Deed of Conditional Sale over the
property in favor of Tan for the price of P1,378,000.00.
On November 6, 1992, Lamberto Benolirao died
intestate. Erlinda Benolirao (his widow and one of the
vendors of the property) and her children, as heirs of
the deceased, executed an extrajudicial settlement of
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Lamberto’s estate on January 20, 1993. On the basis of
the extrajudicial settlement, a new certificate of title
over the property, TCT No. 27335, was issued on March
26, 1993 in the names of the Spouses Reynaldo and
Norma Taningco and Erlinda Benolirao and her children.
Pursuant to Section 4, Rule 74 of the Rules, the
following annotation was made on TCT No. 27335:
x x x any liability to credirots (sic), excluded heirs and
other persons having right to the property, for a period
of two (2) years, with respect only to the share of
Erlinda, Andrew, Romano and Dion, all surnamed
Benolirao.
Tan eventually failed to pay the balance. He refused to
comply with vendors’ demands and instead wrote them
a letter (dated May 28, 1993) claiming that the
annotation on the title, made pursuant to Section 4,
Rule 74 of the Rules, constituted an encumbrance on
the property that would prevent the vendors from
delivering a clean title to him. Thus, he alleged that he
could no longer be required to pay the balance of the
purchase price and demanded the return of his down
payment.
ISSUE: Is an annotation made pursuant to Section 4,
Rule 74 of the Rules of Court (Rules) on a certificate of
title covering real property considered an encumbrance
on the property? YES
HELD:
A Section 4, Rule 74 annotation is an encumbrance on
the property
While Tan admits that he refused to pay the balance of
the purchase price, he claims that he had valid reason
to do so – the sudden appearance of an annotation on
the title pursuant to Section 4, Rule 74 of the Rules,
which Tan considered an encumbrance on the property.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
We find Tan’s argument meritorious.
The annotation placed on TCT No. 27335, the new title
issued to reflect the extrajudicial partition of Lamberto
Benolirao’s estate among his heirs, states:
x x x any liability to credirots (sic), excluded heirs and
other persons having right to the property, for a period
of two (2) years, with respect only to the share of
Erlinda, Andrew, Romano and Dion, all surnamed
Benolirao.
This annotation was placed on the title pursuant to
Section 4, Rule 74 of the Rules, which reads:
Sec. 4. Liability of distributees and estate. - If it shall
appear at any time within two (2) years after the
settlement and distribution of an estate in accordance
with the provisions of either of the first two sections of
this rule, that an heir or other person has been unduly
deprived of his lawful participation in the estate, such
heir or such other person may compel the settlement of
the estate in the courts in the manner hereinafter
provided for the purpose of satisfying such lawful
participation. And if within the same time of two (2)
years, it shall appear that there are debts outstanding
against the estate which have not been paid, or that
an heir or other person has been unduly deprived of his
lawful participation payable in money, the court
having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of such debts
or lawful participation and order how much and in
what manner each distributee shall contribute in the
payment thereof, and may issue execution, if
circumstances require, against the bond provided in
the preceding section or against the real estate
belonging to the deceased, or both. Such bond and such
real estate shall remain charged with a liability to
creditors, heirs, or other persons for the full period of
two (2) years after such distribution, notwithstanding
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any transfers of real estate that may have been made.
[Emphasis supplied.]
An annotation is placed on new certificates of title
issued pursuant to the distribution and partition of a
decedent’s real properties to warn third persons on the
possible interests of excluded heirs or unpaid creditors
in these properties. The annotation, therefore, creates
a legal encumbrance or lien on the real property in
favor of the excluded heirs or creditors. Where a buyer
purchases the real property despite the annotation, he
must be ready for the possibility that the title could be
subject to the rights of excluded parties. The
cancellation of the sale would be the logical
consequence where: (a) the annotation clearly appears
on the title, warning all would-be buyers; (b) the sale
unlawfully interferes with the rights of heirs; and (c) the
rightful heirs bring an action to question the transfer
within the two-year period provided by law.
By the time Tan’s obligation to pay the balance of the
purchase price arose on May 21, 1993 (on account of
the extensions granted by the respondents), a new
certificate of title covering the property had already
been issued on March 26, 1993, which contained the
encumbrance on the property; the encumbrance would
remain so attached until the expiration of the two-year
period. Clearly, at this time, the vendors could no
longer compel Tan to pay the balance of the purchase
since considering they themselves could not fulfill their
obligation to transfer a clean title over the property to
Tan.
JUDICIAL SETTLEMENT OF ESTATE
Jurisdiction
BP 129 , as amended by RA 7691 (Effective April 15,
1994)
Limited Jurisdiction
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
1. Bernardo v CA
G.R. No. L-18148 February 28, 1963
DEOGRACIAS BERNARDO, executor of the testate
estate of the deceased EUSEBIO CAPILI; and the
instituted heirs, namely: ARMANDO CAPILI and
ARTURO BERNARDO, ET AL., petitioners, vs. HON.
COURT OF APPEALS and THE HEIRS OF THE LATE
HERMOGENA REYES, namely: FRANCISCO REYES, ET
AL., and JOSE ISIDORO, ET AL., respondents.
FACTS:
Eusebio Capili and Hermogena Reyes were husband and
wife.
Eusebio died testate and disposed of his properties in
favor of Hermogena and his other relatives. A year later,
Hermogena died.
Provisional
The executor of Eusebio’s estate filed a project of
partition adjudicating the estate of Eusebio Capili
among the testamentary heirs with the exception of
Hermogena Reyes. The relatives of Hermogena filed an
opposition to the executor's project of partition and
submitted a counter-project of partition of their own,
claiming 1/2 of the properties mentioned in the will of Definite
the deceased Eusebio Capili on the theory that they
belonged not to the latter alone but to the conjugal
partnership of the spouses.
In the hearing of the opposition to the project of
partition, the executor of Eusebio’s estate claimed that
the properties disposed of in the will of the deceased
Eusebio Capili belonged to him (Eusebio) exclusively and
not to the conjugal partnership, because Hermogena
Reyes had donated to him her half share of such
partnership;
The probate Court declared the donation void . The CA
affirmed the finding .
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3Manresa
Petitioners instituted the present Certiorari petition
alleging that the appellate court erred in not declaring
that the probate court, having limited and special
jurisdiction, had generally no power to adjudicate title
and erred in applying the exception to the rule.
ISSUE: WON the Probate Court can pass upon the
validity of title to property in a testate proceeding. YES,
if the exceptions apply
(As to the property: Is it conjugal or does it belong to
the husband exclusively? )
HELD:
Exception applies in this case
In a line of decisions, this Court consistently held that as
a general rule, question as to title to property cannot be
passed upon on testate or intestate proceedings,
except where one of the parties prays merely for the
inclusion or exclusion from the inventory of the
property, in which case the probate court may pass
provisionally upon the question without prejudice to its
final determination in a separate action. However, we
have also held that when the parties interested are all
heirs of the deceased, it is optional to them to submit to
the probate court a question as to title to property, and
when so submitted, said probate court may definitely
pass judgment thereon (Pascual v. Pascual, 73 Phil. 561;
Manalac v. Ocampo, et al., 73 Phil. 661); and that with
the consent of the parties, matters affecting property
under judicial administration may be taken cognizance
of by the court in the course of intestate proceeding,
provided interests of third persons are not prejudiced
(Cunanan v. Amparo, 80 Phil. 229, 232).
In the light of this doctrine, may it be said correctly that
the trial court as well as the Court of Appeals erred in
upholding the power of the probate court in this case to
adjudicate in the testate proceedings, the question as to
whether the properties herein involved belong to the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
conjugal partnership of Eusebio Capili and Hermogena
Reyes, or to the deceased husband exclusively?
At the outset, let it be clarified that the matter at issue
is not a question of jurisdiction, in the sense advanced
by appellants that the trial court had completely no
authority to pass upon the title to the lands in dispute,
and that its decision on the subject is null and void and
does not bind even those who had invoked its authority
and submitted to its decision because, it is contended,
jurisdiction is a creature of law and parties to an action
can not vest, extend or broaden it. If appellants'
contention is correct, then there can be no exception to
the no-jurisdiction theory. But as has been stated in the
case of Cunanan v. Amparo (supra) the Supreme Court
speaking through Mr. Justice Pedro Tuason:
"Determination of title to property is within the
jurisdiction of Courts of First Instance. The responding
Soriano's objection (that the probate court lacked
jurisdiction to order the delivery of the possession of
the lots to the estate) relates exclusively to the
procedure, which is distinct from jurisdiction. It affects
only personal rights to a mode of practice (the filing of
an independent ordinary action) which may be waived".
Strictly speaking, it is more a question of jurisdiction
over the person, not over the subject matter, for the
jurisdiction to try controversies between heirs of a
deceased person regarding the ownership of properties
alleged to belong to his estate, has been recognized to
be vested in probate courts. This is so because the
purpose of an administration proceeding is the
liquidation of the estate and distribution of the residue
among the heirs and legatees. Liquidation means
determination of all the assets of the estate and
payment of all the debts and expenses.Thereafter,
distribution is made of the decedent's liquidated estate
among the persons entitled to succeed him. The
proceeding is in the nature of an action of partition, in
which each party is required to bring into the mass
whatever community property he has in his possession.
Alvar, Ceballo, Cuabo
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To this end, and as a necessary corollary, the interested
parties may introduce proofs relative to the ownership
of the properties in dispute. All the heirs who take part
in the distribution of the decedent's estate are before
the court, and subject to the jurisdiction thereof, in all
matters and incidents necessary to the complete
settlement of such estate, so long as no interests of
third parties are affected.
In the case now before us, the matter in controversy is
the question of ownership of certain of the properties
involved — whether they belong to the conjugal
partnership or to the husband exclusively. This is a
matter properly within the jurisdiction of the probate
court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the
decedent which is to be distributed among his heirs
who are all parties to the proceedings, including, of
course, the widow, now represented because of her
death, by her heirs who have been substituted upon
petition of the executor himself and who have appeared
voluntarily. There are no third parties whose rights may
be affected. It is true that the heirs of the deceased
widow are not heirs of the testator-husband, but the
widow is, in addition to her own right to the conjugal
property. And it is this right that is being sought to be
enforced by her substitutes. Therefore, the claim that is
being asserted is one belonging to an heir to the
testator and, consequently, it complies with the
requirement of the exception that the parties
interested (the petitioners and the widow, represented
by dents) are all heirs claiming title under the testator.
Jurisdiction over the person of the parties has been
acquired
Petitioners contend additionally that they have never
submitted themselves to the jurisdiction of the probate
court, for the purpose of the determination of the
question of ownership of the disputed properties. This
is not borne by the admitted facts. On the contrary, it is
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
undisputed that they were the ones who presented the
project of partition claiming the questioned properties
as part of the testator's asset. The respondents, as
representatives or substitutes of the deceased widow
opposed the project of partition and submitted another.
As the Court of Appeals said, "In doing so all of them
must be deemed to have submitted the issue for
resolution in the same proceeding. Certainly, the
petitioners can not be heard to insist, as they do, on the
approval of their project of partition and, thus, have the
court take it for granted that their theory as to the
character of the properties is correct, entirely without
regard to the opposition of the respondents". In other
words, by presenting their project of partition including
therein the disputed lands (upon the claim that they
were donated by the wife to her husband), petitioners
themselves put in issue the question of ownership of
the properties — which is well within the competence
of the probate court — and just because of an
opposition thereto, they can not thereafter withdraw
either their appearance or the issue from the
jurisdiction of the court. Certainly, there is here a
waiver where the parties who raise the objection are
the ones who set the court in motion. They can not be
permitted to complain if the court, after due hearing,
adjudges question against them.
2. Ledesma v Intestate Estate of Cipriano Pedrosa
G.R. No. 102126 March 12, 1993
ANGELICA LEDESMA, petitioner, vs. INTESTATE ESTATE
OF CIPRIANO PEDROSA represented by Nelson Jimena,
Honorable Judge Bethel Katalbas-Moscardon in her
capacity as Presiding Judge-Designate, Branch 51, RTC,
Bacolod City,respondents.
FACTS:
Ledesma’s marriage to Cipriano Pedrosa was declared a
nullity by RTC on 8 February 1984. During the pendency
of the partition proceeding pursuant to the declaration
of nullity of marriage the judge and Cipriano died. A
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separate petition for the probate of his last will and
testament wasfiled. Nelson Jimena was named executor
and substituted Pedrosa in the partition proceedings.
The new judge(in the nullity case) ordered the partition
proceeding terminated in view of the circumstances and
held Ledesma should just file an action for intervention
in the intestate proceeding of Ciprirano.
ISSUE: WON the new judge is correct.NO
HELD:
The SC cited the case of The case of Macadangdang vs.
Court of Appeals, where a similar issue was involved —
the husband having died after the legal separation of
the spouses had been finally decreed but before the
actual liquidation of their community of properties — is
on point. The SC said in that case that legal separation
results to the dissolution and liquidation of properties
(Art. 106 FC) The aforequoted provision mandates the
dissolution and liquidation of the property regime of
the spouses upon finality of the decree of legal
separation. Such dissolution and liquidation are
necessary consequences of the final decree. This legal
effect of the decree of legal separation ipso facto or
automatically follows, as an inevitable incident of, the
judgment decreeing legal separation for the purpose of
determining the share of each spouse in the conjugal
assets. Hence, the properties that may be allocated to
the deceased petitioner by virtue of the liquidation of
the conjugal assets, shall be distributed in accordance
with the laws of intestate succession
The Macadangdang decision involved legal separation
but, with equal reason, the doctrine enunciated therein
should be applied to a marriage annulment which is the
situation at bar.The new judge is directed to decide the
partition (liquidation) case (Civil Case No. 1446) within
thirty (30) days from receipt of notice of this decision to
determine which of the properties of the conjugal
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
partnership should be adjudicated to the husband and
the wife
3. Pereira v CA
G.R. No. L-81147, June 20, 1989
FACTS:
Andres Pereira, an employee of the Philippine Air Lines,
passed away without a will. He was survived by his
legitimate spouse of 10 months, herein petitioner
Victoria Pereira, and his sister Rita Pereira Nagac
(private respondent).
Nagac instituted special proceeding for the issuance of
letters of administration in her favor pertaining to the
estate of deceased, which includes death benefits from
PAL, SSS, savings deposits with PNB, etc. Petitioner filed
her opposition and motion to dismiss alleging that there
exists no estate for purposes of administration, and if it
does exist, that the letters of admin be issued in her
favor as surviving spouse.
ISSUE:
(1) Whether or not there exists an estate of the
deceased Andres de Guzman Pereira for purposes of
administration;
(2) Whether or not a judicial administration proceeding
is necessary where there are no debts left by the
decedent; and
(3) Who has the better right to be appointed as
administratrix of the estate of the deceased, the
surviving spouse Victoria Bringas Pereira or the
surviving sister Rita Pereira Nagac?
HELD:
First Issue:
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3Manresa
SC cannot order an unqualified and final exclusion or
non-exclusion of the property involved from the estate
of the deceased. The resolution of this issue is better
left to the probate court before which the
administration proceedings are pending. The trial court
is in the best position to receive evidence on the
discordant contentions of the parties as to the assets of
the decedent's estate, the valuations thereof and the
rights of the transferees of some of the assets, if any.
Second Issue:
Assuming, however, that there exist assets of the
deceased Andres de Guzman Pereira for purposes of
administration, We nonetheless find the administration
proceedings instituted by private respondent to be
unnecessary as contended by petitioner.
General Rule: property of decedent must be judicially
administered
The general rule is that when a person dies leaving
property, the same should be judicially administered
and the competent court should appoint a qualified
administrator, in the order established in Section 6, Rule
78, in case the deceased left no will, or in case he had
left one, should he fail to name an executor therein. An
exception to this rule is established in Section 1 of Rule
74. Under this exception, when all the heirs are of
lawful age and there are no debts due from the estate,
they may agree in writing to partition the property
without instituting the judicial administration or
applying for the appointment of an administrator.
Section 1, Rule 74 of the Revised Rules of Court,
however, does not preclude the heirs from instituting
administration proceedings, even if the estate has no
debts or obligations, if they do not desire to resort for
good reasons to an ordinary action for partition. While
Section 1 allows the heirs to divide the estate among
themselves as they may see fit, or to resort to an
ordinary action for partition, the said provision does not
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
compel them to do so if they have good reasons to take
a different course of action. It should be noted that
recourse to an administration proceeding even if the
estate has no debts is sanctioned only if the heirs have
good reasons for not resorting to an action for partition.
Where partition is possible, either in or out of court, the
estate should not be burdened with an administration
proceeding without good and compelling reasons.
If no obligations, judicial administration is superfluous
and unnecessary
Thus, it has been repeatedly held that when a person
dies without leaving pending obligations to be paid, his
heirs, whether of age or not, are not bound to submit
the property to a judicial administration, which is
always long and costly, or to apply for the appointment
of an administrator by the Court. It has been uniformly
held that in such case the judicial administration and
the appointment of an administrator are superfluous
and unnecessary proceedings.
Exception: good reasons for not resorting to partition
Now, what constitutes "good reason" to warrant a
judicial administration of the estate of a deceased when
the heirs are all of legal age and there are no creditors
will depend on the circumstances of each case.
In one case, We said:
Again the petitioner argues that only when the heirs do
not have any dispute as to the bulk of the hereditary
estate but only in the manner of partition does section
1, Rule 74 of the Rules of Court apply and that in this
case the parties are at loggerheads as to the corpus of
the hereditary estate because respondents succeeded
in sequestering some assets of the intestate. The
argument is unconvincing, because, as the respondent
judge has indicated, questions as to what property
belonged to the deceased (and therefore to the heirs)
may properly be ventilated in the partition proceedings,
Alvar, Ceballo, Cuabo
3Manresa
especially where such property is in the hands of one
heir.
In another case, We held that if the reason for seeking
an appointment as administrator is merely to avoid a
multiplicity of suits since the heir seeking such
appointment wants to ask for the annulment of certain
transfers of property, that same objective could be
achieved in an action for partition and the trial court is
not justified in issuing letters of administration.
In still another case, We did not find so powerful a
reason the argument that the appointment of the
husband, a usufructuary forced heir of his deceased
wife, as judicial administrator is necessary in order for
him to have legal capacity to appear in the intestate
proceedings of his wife's deceased mother, since he
may just adduce proof of his being a forced heir in the
intestate proceedings of the latter.
No good reason to burden the estate with an
administration proceeding
We see no reason not to apply this doctrine to the case
at bar. There are only two surviving heirs, a wife of ten
months and a sister, both of age. The parties admit that
there are no debts of the deceased to be paid. What is
at once apparent is that these two heirs are not in good
terms. The only conceivable reason why private
respondent seeks appointment as administratrix is for
her to obtain possession of the alleged properties of the
deceased for her own purposes, since these properties
are presently in the hands of petitioner who supposedly
disposed of them fraudulently. We are of the opinion
that this is not a compelling reason which will
necessitate a judicial administration of the estate of the
deceased. To subject the estate of Andres de Guzman
Pereira, which does not appear to be substantial
especially since the only real property left has been
extrajudicially settled, to an administration proceeding
for no useful purpose would only unnecessarily expose
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
it to the risk of being wasted or squandered. In most
instances of a similar nature, the claims of both parties
as to the properties left by the deceased may be
properly ventilated in simple partition proceedings
where the creditors, should there be any, are protected
in any event.
4. Jimenez v IAC
G.R. No. 75773 April 17, 1990
TOMAS JIMENEZ, VISITACION JIMENEZ, DIGNO
JIMENEZ, ANTONIO JIMENEZ, AMADEO JIMENEZ,
MODESTO JIMENEZ and VIRGINIA JIMENEZ,
petitioners, vs. HONORABLE INTERMEDIATE APPELLATE
COURT, HON. AMANDA VALERA-CABIGAO, in her
capacity as Presiding Judge, Regional Trial Court,
Branch XXXVII, Lingayen, Pangasinan, LEONARDO
JIMENEZ, JR. and CORAZON JIMENEZ, respondents
FACTS:
Lino Jimenez contracted 2 marriages during his lifetime.
The first was with Consolacion Ungson with whom he
begot 4 children. Upon Consolacion’s death, Lino
married Genoveva Caolboy with whom he begot 7
children.
Upon the death of Lino and Genoveva, Virginia Jimenez
of the second marriage prayed that she be appointed
administratrix. She enumerated in her petition as heirs
the children from the first marriage.
Herein private respondent Leonardo Jimenez, Jr., son of
Leonardo Jimenez, Sr. of the first marriage, filed a
motion for the exclusion of his father's name and those
of Alberto, Alejandra, and from the petition, inasmuch
as they are children of the union of Lino Jimenez and
Consolacion Ungson and not of Lino Jimenez and
Genoveva Caolboy and because they have already
received their inheritance consisting of five (5) parcels
of lands in Salomague, Bugallon, Pangasinan of the
conjugal partnership of Lino and Consolacion.
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Virginia was appointed as administratrix and included in
her inventory the aforementioned five (5) parcels of
lands in Salomague , Bugallon, Pangasinan.
Private respondents of the first marriage prayed for the
exclusion of said parcels of land which was GRANTED
with finality on Certiorari with CA.
Two years later, petitioners filed an action to recover
possession/ownership of the subject five (5) parcels of
land (Civil Case No. 16111) as part of the estate of Lino
Jimenez and Genoveva Caolboy and to order private
respondents to render an accounting of the produce
therefrom. Private respondents moved for the dismissal
of the complaint on the grounds that the action was
barred by prior judgment . However, petitioners
opposed the motion to dismiss contending that (1) the
action was not barred by prior judgment because the
probate court had no jurisdiction to determine with
finality the question of ownership of the lots which
must be ventilated in a separate action.
ISSUE: Whether in a settlement proceeding (testate or
intestate) the lower court has jurisdiction to settle
questions of ownership . YES but merely provisional
WON petitioners’ present action for recovery of
possession is barred by res judicata. NO
HELD:
Determination of ownership by probate court is
merely provisional
Petitioners' present action for recovery of possession
and ownership is appropriately filed because as a
general rule, a probate court can only pass upon
questions of title provisionally. Since the probate,
court's findings are not conclusive being prima facie, a
separate proceeding is necessary to establish the
ownership of the five (5) parcels of land.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
The patent reason is the probate court's limited
jurisdiction and the principle that questions of title or
ownership, which result in inclusion or exclusion from
the inventory of the property, can only be settled in a
separate action.
All that the said court could do as regards said
properties is determine whether they should or should
not be included in the inventory or list of properties to
be administered by the administrator. If there is a
dispute as to the ownership, then the opposing parties
and the administrator have to resort to an ordinary
action for a final determination of the conflicting claims
of title because the probate court cannot do so.
The provisional character of the inclusion in the
inventory of a contested property was again reiterated
in the following cases: Pio Barreto Realty Development,
Inc. vs. Court of Appeals, Junquera vs. Borromeo,
Borromeo vs. Canonoy, Recto vs. de la Rosa. It has also
been held that in a special proceeding for the probate
of a will, the question of ownership is an extraneous
matter which the probate court cannot resolve with
finality. This pronouncement no doubt applies with
equal force to an intestate proceeding as in the case at
bar.
Res judicata does not exist because of the difference in
the causes of actions. Specifically in S.P. No. 5346, the
action was for the settlement of the intestate estate of
Lino Jimenez and Genoveva Caolboy while Civil Case No.
16111 was an action for the recovery of possession and
ownership of the five (5) parcels of land. Moreover,
while admittedly, the Court of First Instance of
Pangasinan, Branch V in S.P. No. 5346 had jurisdiction,
the same was merely limited jurisdiction. Any
pronouncement by said court as to title is not
conclusive and could still be attacked in a separate
proceeding. Civil Case No. 16111, on the other hand.
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was lodged before the Regional Trial Court of
Pangasinan, Branch XXXVII in the exercise of the court's
general jurisdiction. It was, in fact, such "separate or
ordinary proceedings" contemplated by the rules for a
final determination of the issue of ownership of the
disputed properties. To repeat, since the determination
of the question of title to the subject properties in S.P.
5346 was merely provisional, petitioners are not barred
from instituting the appropriate action in Civil Case No.
16111.
Indeed, the grounds relied upon by private respondents
in their motion to dismiss do not appear to be
indubitable. Res judicata has been shown here to be
unavailable and the other grounds of prescription and
laches pleaded by private respondents are seriously
disputed. The allegation in the complaint is that the
heirs of Leonardo Jimenez, Sr. (referring to private
respondents,) forcibly intruded into and took
possession of the disputed properties only in 1978, after
the death of Genoveva Caolboy. Since the action for
reconveyance was instituted in 1984, it would appear
that the same has not yet prescribed or otherwise
barred by laches.
There are a number of factual issues raised by
petitioners before the lower court which cannot be
resolved without the presentation of evidence at a full-
blown trial and which make the grounds for dismissal
dubitable. Among others, the alleged admission made
by petitioners' mother in the deed of sale is vehemently
denied, as well as the fact itself of adjudication, there
being no showing that the conjugal partnership of Lino
Jimenez and Consolacion Ungson had been liquidated
nor that a judicial or extra-judicial settlement of the
estate of Lino Jimenez was undertaken whereby such
adjudication could have been effected.
The grounds stated in the motion to dismiss not being
indubitable, the trial court committed grave abuse of
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
discretion in dismissing the complaint in Civil Case No.
16111.
5. Valero Vda. De Rodriguez v CA
G.R. No. L-39532 July 20, 1979
Testate Estate of Jose M. Valero, FLORA VALERO VDA.
DE RODRIGUEZ and ROSIE VALERO DE
GUTIERREZ, petitioners-appellants, vs. COURT OF
APPEALS and CARMEN VALERO-RUSTIA, respondents-
appellees
FACTS:
Jose Valero (had 2 children during 1st marriage) and
Beartiz Bautista (had adopted child named Carmen) are
spouses who did not beget any child during their
marriage. Beatriz died on September 1972 and Jose
died testate a month later. Lawyer Celso F. Unson, the
executor (for the estate of Jose), submitted an
inventory wherein, following the list of conjugal assets
in the testator's will, the two San Lorenzo Village lots
were included as part of the testate estate.
Carmen filed a motion for the exclusion of the two San
Lorenzo Village lots from the testator's inventoried
estate alleging that the said properties were donated to
her and that since 1966 she has been the registered
owner of the lots as shown by two Torrens titles, copies
of which were attached to the motion.
The executor opposed the motion contending that the
issue on collation was prematurely raised. The probate
court excluded the two lots from the inventory of the
testator's estate but with the understanding "that the
same are subject to collation.
ISSUE: WON the probate court was correct? NO
HELD:
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The prevailing rule is that for the purpose of
determining whether a certain property should or
should not be included in the inventory, the probate
court may pass upon the title thereto but such
determination is not conclusive and is subject to the
final decision in a separate action regarding ownership
which may be instituted by the parties (3 Moran's
Comments on the Rules of Court, 1970 Edition, pages
448-9 and 473; Lachenal vs. Salas, L-42257, June 14,
1976, 71 SCRA 262, 266).
We hold further that the dictum of the Court of Appeals
and the probate court that the two disputed lots are not
subject to collation was a supererogation and was not
necessary to the disposition of the case which merely
involved the issue of inclusion in, or exclusion from, the
inventory of the testator's estate. The issue of collation
was not yet justifiable at that early stage of the testate
proceeding. It is not necessary to mention in the order
of exclusion the controversial matter of collation.
Whether collation may exist with respect to the two lots
and whether Carmen’s (Mrs.Rustia) Torrens titles
thereto are indefeasible are matters that may be raised
later or may not be raised at all. How those issues
should be resolved, if and when they are raised, need
not be touched upon in the adjudication of this appeal.
The intestate and testate proceedings for the
settlement of the estates of the deceased Valero
spouses were consolidated, as ordered by the lower
court on November 21, 1974, so that the conjugal
estate of the deceased spouses may be properly
liquidated, as contemplated in section 2, Rule 73 of the
Rules of Court and Act No. 3176 (Pages 223 and 235-6,
Rollo).
We have examined the expedientes of the two cases.
We found that the proceedings have not yet reached
the stage when the question of collation or
advancement to an heir may be raised and decided. The
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
numerous debts of the decedents are still being paid.
The net remainder (remanenteliquido) of their conjugal
estate has not yet been determined. On the other hand,
up to this time, no separate action has been brought by
the appellants to nullify Mrs.Rustia's Torrens titles to
the disputed lots or to show that the sale was in reality
a donation.
In this appeal, it is not proper to pass upon the question
of collation and to decide whether Mrs.Rustia's titles to
the disputed lots are questionable. The proceedings
below have not reached the stage of partition and
distribution when the legitimes of the compulsory heirs
have to be determined.
6. Pio Barretto v CA
G.R. No. L-62431-33, August 31, 1984
FACTS:
Nicolai Drepin died testate on August 23, 1972. He left
behind three (3) parcels of titled land. Since the filing of
the petition for probate of the Drepin’s will nine (9)
offers had been made for the purchase of the Drepin
lands, among them, that of GM Management Phils
through its President Honor P. Moslares.
Moslares alleged that on October 9,1970, Drepin
executed a deed of sale with mortgage executed by the
decedent in his favor. He also alleged that on June 25,
1971, Drepin and Moslares entered into a "Joint
Venture Agreement" where it was agreed that Drepin
shall be the registered "owner" of the lots and
denominated Moslares as "developer" tasked with
converting the lands into a residential subdivision. But
before the agreement could be implemented, Nicolai
Drepin died.
Upon learning of the existence of Special Proceedings,
Moslares informed the Judicial Administrator that he is
already the owner of the properties made subject
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matter of the Special Proceedings and proposed that he
be permitted to pay the balance on the sale with
mortgage in accordance with the terms of his written
proposal.
Undertaking
On September 25,1979, with the court’s permission, a
Deed of Undertaking was entered into by respondent
Moslares and the Administrator to implement the
Contract of Sale with Mortgage. Such deed provided for
the mode of payment which Moslares was to follow.
Moslares failed to pay as agreed. Thus, the
administrator reported the matter to the probate court
which approved the sale of the property to Pio Barretto
Realty, Inc. The deed of sale was duly registered.
Mosrales filed a motion for reconsideration, but the
same was not acted by the probate court
Cancellation of unfulfilled offer to buy
Under the theory of Moslares, it is insisted that the
probate court has no authority to cancel his unfulfilled
offer to buy, notwithstanding the fact that he failed
miserably to comply with the terms of his own offer to
buy.
On May 18, 1981, Pio Barreto Realty filed Civil Case No.
41287 before the CFI of Rizal to determine title and
ownership over the Drepin lands. A petition for
certiorari was filed by respondent Moslares before the
Court of Appeals.
ISSUES: (1) Can the Court of Appeals act upon the issue
of exclusion of properties in theestate when it is not
passed upon by the court a quo? NO
(2) Can the probate court order theexecution of the
deed of sale with Pio Barreto?
HELD:
As to the first issue: No.
The question of whether the properties sold by Drepin
to Petitioner should be excluded from the probate
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
proceedings below, cannot be determined with finality
by the Supreme Court in this case, because in this
petition We are merely reviewing the acts of the
respondent CFI as a probate court. Any ruling by the
probate court to include those properties "is only
provisional in character and is without prejudice to a
judgment in a separate action on the issue of title or
ownership" (Sebial v. Sebial, L-23419, June 27,1975, 64
SCRA 385).
Consequently, in reviewing the exercise of such limited
probate jurisdiction, We cannot order an unqualified
and final exclusion of the properties involved, as prayed
for; to do so would expand the probate court's
jurisdiction beyond the perimeters set by law and
jurisprudence. It is fitting and proper that this issue be
ventilated and finally resolved in the already instituted
Civil Case No. 41287, even as We hold that respondent
court's act of not excluding the lots involved did not
constitute grave abuse of discretion. In view of this
limitation, We need not resolve the issue of whether
there was novation of the Deed of Sale with Mortgage,
or not.
As to the Second Issue: Yes.
Actions of the probate court, in the case at bar, do not
refer to the adjudication of rights under the contract
entered into by the deceased during his lifetime. It is to
be noted that the dealings of the respondent with the
court arose out of the latter's bid to sell property under
its authority to sell, mortgage or otherwise encumber
property of the estate to pay or settle against the
estate.
Thus, by estoppel, respondent bound himself under an
agreement with the court separate and distinct from
that which he had with the decedent. In rescinding such
contract, the court merely seeks to enforce its right to
put an end to an agreement which had ceased to be a
working proposition. Surely, this is well within the
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power of the probate court. We cannot allow an absurd
situation to arise where the Drepin estate will never be
settled and liquidated because even if Moslares cannot
pay the agreed purchase price of the Drepin lands, still
the probate court can no longer sell the lands to other
prospective buyers. It is also to be emphasized that it
was not respondent's contract of sale with decedent
that had been invalidated but rather the administrator's
authority to sell to respondent. Moreover, the
respondent is not without remedy if truly his claim of
ownership is proper and meritorious. Since the probate
court has no jurisdiction over the question of title
andownership of the properties, the respondents may
bring a separate action if they wish toquestion the
petitioner's titles and ownership
Notes:
In the case of Pio, what was the contract involved here?
Contract to sell.
Would that give rise to an issue of ownership? No maam
because ownerhip cannot be pass under a contract to
sell.
Maam: So the main issue in the case of Pio is not really
about ownership. That is why, the issue posed here is,
can the settlement court rescind the contract previously
entered into by the decedent. That is answered in the
case of Pio Barreto.
Yes. In the case of Pio Barreto, if the contract concerns a
pending transaction and in the midst of it the decedent
died, but was subsequently continued by the
administrator and as ordered by the probate court, then
the probate court has jurisdiction to decide. Hence, in
the same way that it has also the power to rescind it,
the probate court has the power over transactions
entered into by the administrator.
7. Dorotheo v CA
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
G.R. No. 108581 December 8, 1999
LOURDES L. DOROTHEO, petitioner, vs. COURT OF
APPEALS, NILDA D. QUINTANA, for Herself and as
Attorney-in-Fact of VICENTE DOROTHEO and JOSE
DOROTHEO, respondents.
FACTS:
Private respondents were the legitimate children of
Alejandro Dorotheo and Aniceta Reyes. The latter died
in 1969 without her estate being settled. Alejandro died
thereafter. Sometime in 1977, after Alejandro's death,
petitioner, who claims to have taken care of Alejandro
before he died, filed a special proceeding for the
probate of the latter's last will and testament. In 1981,
the court issued an order admitting Alejandro's will to
probate. Private respondents did not appeal from said
order. In 1983, they filed a "Motion To Declare The Will
Intrinsically Void."
The trial court GRANTED the motion in an order dated
January 30, 1986. In said order , the court declared that
Lourdes Legaspi is not the wife of the late Alejandro
Dorotheo and the provisions of the last will and
testament of Alejandro Dorotheo is intrinsically void.
Furthermore, it declared that Vicente Dorotheo, Jose
Dorotheo and Nilda Dorotheo Quintana are the only
heirs of the late spouses Alejandro Dorotheo and
Aniceta Reyes, whose respective estates shall be
liquidated and distributed according to the laws on
intestacy upon payment of estate and other taxes due
to the government.
Petitioner’s MR and Appeal were , respectively denied.
This dismissal became final and executory on February
3, 1989 and a corresponding entry of judgment was
forthwith issued by the Court of Appeals on May 16,
1989. A writ of execution was issued by the lower court
to implement the final and executory Order.
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An Order was issued on November 29, 1990 by Judge
Zain B. Angas setting aside the final and executory
Order dated January 30, 1986, as well as the Order
directing the issuance of the writ of execution, on the
ground that the order was merely "interlocutory",
hence not final in character. The court added that the
dispositive portion of the said Order even directs the
distribution of the estate of the deceased spouses.
Private respondents filed a motion for reconsideration
which was denied in an Order dated February 1, 1991.
Thus, private respondents filed a petition before the
Court of Appeals, which nullified the two assailed
Orders dated November 29, 1990 and February 1, 1991.
Hence this present petition.
ISSUE: WON the January 30 1986 order is final. YES
HELD:
A final judgment on a probated will is binding
The petition is without merit. A final and executory
decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In
setting aside the January 30, 1986 Order that has
attained finality, the trial court in effect nullified the
entry of judgment made by the Court of Appeals. It is
well settled that a lower court cannot reverse or set
aside decisions or orders of a superior court, for to do
so would be to negate the hierarchy of courts and
nullify the essence of review. It has been ruled that a
final judgment on probated will, albeit erroneous, is
binding on the whole world.
It has been consistently held that if no appeal is taken in
due time from a judgment or order of the trial court,
the same attains finality by mere lapse of time. Thus,
the order allowing the will became final and the
question determined by the court in such order can no
longer be raised anew, either in the same proceedings
or in a different motion. The matters of due execution
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
of the will and the capacity of the testator acquired the
character ofres judicata and cannot again be brought
into question, all juridical questions in connection
therewith being for once and forever closed. Such final
order makes the will conclusive against the whole world
as to its extrinsic validity and due execution.
It should be noted that probate proceedings deals
generally with the extrinsic validity of the will sought to
be probated, particularly on three aspects:
a. whether the will submitted is indeed, the decedent's
last will and testament;
b. compliance with the prescribed formalities for the
execution of wills;
c. the testamentary capacity of the testator;
d. and the due execution of the last will and testament.
Under the Civil Code, due execution includes a
determination of whether the testator was of sound
and disposing mind at the time of its execution, that he
had freely executed the will and was not acting under
duress, fraud, menace or undue influence and that the
will is genuine and not a forgery, that he was of the
proper testamentary age and that he is a person not
expressly prohibited by law from making a will.
The intrinsic validity is another matter and questions
regarding the same may still be raised even after the
will has been authenticated. Thus, it does not
necessarily follow that an extrinsically valid last will and
testament is always intrinsically valid. Even if the will
was validly executed, if the testator provides for
dispositions that deprives or impairs the lawful heirs of
their legitime or rightful inheritance according to the
laws on succession, the unlawful
provisions/dispositions thereof cannot be given effect.
This is specially so when the courts had already
determined in a final and executory decision that the
will is intrinsically void. Such determination having
attained that character of finality is binding on this
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Court which will no longer be disturbed. Not that this
Court finds the will to be intrinsically valid, but that a
final and executory decision of which the party had the
opportunity to challenge before the higher tribunals
must stand and should no longer be reevaluated.
Failure to avail of the remedies provided by law
constitutes waiver. And if the party does not avail of
other remedies despite its belief that it was aggrieved
by a decision or court action, then it is deemed to have
fully agreed and is satisfied with the decision or order.
As early as 1918, it has been declared that public policy
and sound practice demand that, at the risk of
occasional errors, judgments of courts must at some
point of time fixed by law become final otherwise there
will be no end to litigation. Interes rei publicae ut finis
sit litium — the very object of which the courts were
constituted was to put an end to controversies. To fulfill
this purpose and to do so speedily, certain time limits,
more or less arbitrary, have to be set up to spur on the
slothful. The only instance where a party interested in a
probate proceeding may have a final liquidation set
aside is when he is left out by reason of circumstances
beyond his control or through mistake or inadvertence
not imputable to negligence, which circumstances do
not concur herein.
Petitioner was privy to the suit calling for the
declaration of the intrinsic invalidity of the will, as she
precisely appealed from an unfavorable order
therefrom. Although the final and executory Order of
January 30, 1986 wherein private respondents were
declared as the only heirs do not bind those who are
not parties thereto such as the alleged illegitimate son
of the testator, the same constitutes res judicata with
respect to those who were parties to the probate
proceedings. Petitioner cannot again raise those
matters anew for relitigation otherwise that would
amount to forum-shopping. It should be remembered
that forum shopping also occurs when the same issue
had already been resolved adversely by some other
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
court. It is clear from the executory order that the
estates of Alejandro and his spouse should be
distributed according to the laws of intestate
succession.
Petitioner posits that the January 30, 1986 Order is
merely interlocutory, hence it can still be set aside by
the trial court. In support thereof, petitioner argues that
"an order merely declaring who are heirs and the shares
to which set of heirs is entitled cannot be the basis of
execution to require delivery of shares from one person
to another particularly when no project of partition has
been filed." The trial court declared in the January 30,
1986 Order that petitioner is not the legal wife of
Alejandro, whose only heirs are his three legitimate
children (petitioners herein), and at the same time it
nullified the will. But it should be noted that in the same
Order, the trial court also said that the estate of the late
spouses be distributed according to the laws of
intestacy. Accordingly, it has no option but to
implement that order of intestate distribution and not
to reopen and again re-examine the intrinsic provisions
of the same will.
It can be clearly inferred from Article 960 of the Civil
Code, on the law of successional rights that testacy is
preferred to intestacy. But before there could be
testate distribution, the will must pass the scrutinizing
test and safeguards provided by law considering that
the deceased testator is no longer available to prove
the voluntariness of his actions, aside from the fact that
the transfer of the estate is usually onerous in nature
and that no one is presumed to give — Nemo
praesumitur donare. No intestate distribution of the
estate can be done until and unless the will had failed to
pass both its extrinsic and intrinsic validity. If the will is
extrinsically void, the rules of intestacy apply regardless
of the intrinsic validity thereof. If it is extrinsically valid,
the next test is to determine its intrinsic validity — that
is whether the provisions of the will are valid according
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to the laws of succession. In this case, the court had
ruled that the will of Alejandro was extrinsically valid
but the intrinsic provisions thereof were void. Thus, the
rules of intestacy apply as correctly held by the trial
court.
Furthermore, Alejandro's disposition in his will of the
alleged share in the conjugal properties of his late
spouse, whom he described as his "only beloved wife",
is not a valid reason to reverse a final and executory
order. Testamentary dispositions of properties not
belonging exclusively to the testator or properties
which are part of the conjugal regime cannot be given
effect. Matters with respect to who owns the properties
that were disposed of by Alejandro in the void will may
still be properly ventilated and determined in the
intestate proceedings for the settlement of his and that
of his late spouse's estate.
Petitioner's motion for appointment as administratrix is
rendered moot considering that she was not married to
the late Alejandro and, therefore, is not an heir.
8. Lachenal v Salas
G.R. No. L-42257, June 14, 1976
FACTS:
Victorio Lachenal died on November 20, 1969. His
testate estate is pending settlement in the Court of First
Instance of Rizal, Pasig Branch I (Special Proceeding No.
5836). His son, Ildefonso Lachenal, was named executor
of his will. Among the properties included in the
inventory of his estate is a fishing boat called Lachenal
VII.
On April 1, 1971 the executor filed in that proceeding a
motion to require the spouses Lope L. Leonio and
Flaviana Lachenal-Leonio to pay the rentals for the lease
of Lachenal VII.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Mrs. Leonio, who was a daughter of the testator,
opposed the executor's motion. She countered with a
motion to exclude the fishing boat from the decedent's
estate. She claimed that she is the owner of the boat
because she purchased it from her father in 1967. The
executor opposed the motion for exclusion.
The probate court in its order of January 28, 1972
designated a commissioner to receive the evidence of
the parties relative to the ownership of the motorboat.
Mrs. Leonio had already finished the presentation of
her evidence before the commissioner.
The executor did not present his countervailing
evidence. Instead, he and the testator's other children
filed in the CFI of Rizal an action against the Leonio
spouses and the other three children of the testator
named Crispula, Modesto and Esperanza, for the
recovery of the motorboat Lachenal VII - Civil Case No.
3597.
ISSUE: WON the probate court may pass upon the issue
of ownership of the fishing boat NO
HELD:
We hold that the title to the fishing boat should be
determined in Civil Case No. 3597 because it affects the
lessee thereof, Lope L Leonio, the decedent's son-in-
law, who, although married to his daughter or
compulsory heir, is nevertheless a third person with
respect to his estate. "The administrator may not pull
him against his will, by motion, into the administration
proceeding".
This case falls under the general rule that questions as
to title to property cannot be passed upon in the testate
or intestate proceeding but should be ventilated in a
separate action.
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Questions of ownership adjudicated in a separate
action
Normally, it is expedient and convenient that the
question of title to property, which arises between the
decedent's estate and other persons, should be
adjudicated in a separate action because such a
question requires the presentation of appropriate
pleadings (complaint, motion to dismiss, answer,
counterclaim and reply). A resort to the modes of
discovery may be necessary so that the issues may be
clearly defined and the trial may be expedited. Those
matters can be effectively accomplished in an ordinary
action rather than in the testamentary or intestate
proceeding (Mangaliman vs. Gonzales, L-21033,
December 28, 1970, 36 SCRA 462).
The court may also have to resolve ancillary issues as to
damages and counterclaims for money or property.
Ultimately, execution has to be issued. The execution of
a judgment is usually made by the Court of First
Instance in an ordinary action and not in a special
proceeding.
9. Baybayan v Aquino
G.R. No. L-42678, April 9, 1987
FACTS: Summary settlement
Private respondents Norberto Padua et al all claiming to
be the nephews and nieces of one Vicente Oria who
died intestate sometime in 1945 in Balungao,
Pangasinan, filed a petition for the summary settlement
of the decedent's estate, the value of which did not
exceed P6,000.00. The petition was filed in the then
Court of First Instance of Pangasinan, Tayug Branch.
Probate court issued an order adjudicating the estate to
the heirs of decedent. Eventually, a writ of execution
was issued, as well as a writ of possession (private
respondents were placed in possession of their
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
respective shares). However, they were prevented by
Jose Diaz and Cipriano Evangelista. In view thereof, the
private respondents filed a motion to cite said Jose Diaz
and Cipriano Evangelista in contempt of court.
As a consequence, herein petitioners Pedro Baybayan,
Cipriano Evangelists, and the spouses Bartolome and
Consuelo Baybayan, claiming to be the registered
owners of the lots involved, filed a complaint for the
quieting of their title, plus damages, and to restrain said
defendants from enforcing the writ of execution issued
by the probate court.
Meanwhile, at the hearing of the motion for contempt
in Spec. Proc. No. 24-R, the question of the Identity of
the lands subject of Spec. Proc. No. 24-R, was brought
up, so that the probate court ordered a relocation
survey and commissioned a geodetic engineer to
undertake said survey. After the survey, the
commissioner submitted to the Court a report stating,
among others, that the lands which were delivered by
the Deputy Sheriff to the heirs of Vicente Oria, pursuant
to the writ of possession issued by the probate court,
are registered in the names of herein petitioners.
By reason thereof, the probate court, in an order dated
30 October 1975, dismissed the contempt charge
against Jose Diaz and Cipriano Evangelists. However, the
same court ordered the petitioners to amend their
complaint filed in Civil Case No. 231-R since "it is
necessary that an amended complaint be filed by
Pedro Baybayan in order to determine whether or not
the property in question is part of the property under
Spec. Proc. No. 24-R (probate)."
Petitioners however failed to comply with the order of
the judge to Amend the Complaint to exclude Lot E.
Hence, respondent Judge dismissed the case.
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ISSUE: WON the determination of ownership of
property by the probate court is final NO
HELD:
We find that the respondent Judge committed a grave
abuse of discretion, amounting to lack of jurisdiction, in
dismissing the complaint filed by the petitioners, for
their alleged failure to amend their complaint to
exclude therefrom Lot E which the respondent Judge
found, in his order of 30 October 1975, issued in the
probate court, to be owned by the petitioners Cipriano
Evangelists and Consuelo Baybayan.
Determination of ownership by probate court not final
The findings of the respondent Judge as to the
ownership of Lot E after the hearing conducted in Spec.
Proc. No. 24-R do not justify the order to amend the
complaint since the determination of the ownership of
the said lot by the respondent Judge presiding over a
court exercising probate jurisdiction is not final or
ultimate in nature and is without prejudice to the right
of an interested party to raise the question of
ownership in a proper action.
It is a well-settled rule in this jurisdiction, sanctioned
and reiterated in a long fine of decisions, that "when
questions arise as to ownership of property alleged to
be a part of the estate of a deceased person, but
claimed by some other person to be his property, not by
virtue of any right of inheritance from the deceased, but
by title adverse to that of the deceased and his estate,
such questions cannot be determined in the courts of
administrative proceedings. The Court of First Instance,
acting, as a probate court, has no jurisdiction to
adjudicate such contentions, which must be submitted
to the Court of First Instance in the exercise of its
general jurisdiction as a court of first instance."
Besides, the order to amend the complaint is vague and
hazy and does not specify what the amendments should
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
be or how the complaint should be amended so that the
petitioners should not be faulted if the amended
complaint subsequently filed by them in Civil Case No.
231-R does not contain the allegations that the
respondent Judge would want to appear therein.
10. De Borja v De Borja
G.R. No. L-6622 July 31, 1957
Intestate Estate of the deceased MARCELO DE BORJA.
CRISANTO DE BORJA, administrator-appellant,
vs.JUAN DE BORJA, ET AL., oppositors-appellees.
ISSUE:
May a claim for moral damages may be entertained in a
proceeding for the settlement of an estate? NO
HELD:
Application of Doctrine of Limited Jurisdiction ;
Incidental Matters not to be Entertained
Special Proceedings No. 6414 of the Court of First
Instance of Rizal (Pasig branch) was instituted for the
purpose of settling the Intestate Estate of Marcelo de
Borja. In taking cognizance of the case, the Court was
clothed with a limited jurisdiction which cannot expand
to collateral matters not arising out of or in any way
related to the settlement and adjudication of the
properties of the deceased, for it is a settled rule that
the jurisdiction of a probate court is limited and special
(Guzman vs. Anog, 37 Phil. 361).
Although there is a tendency now to relax this rule and
extend the jurisdiction of the probate court in respect
to matters incidental and collateral to the exercise of its
recognized powers (14 Am. Jur. 251-252), this should be
understood to comprehend only cases related to those
powers specifically allowed by the statutes. For it was
even said that:
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Probate proceedings are purely statutory and their
functions limited to the control of the property upon
the death of its owner, and cannot extend to the
adjudication of collateral questions (Woesmes, The
American Law of Administration, Vol. I, p. 514, 662-
663).
It was in the acknowledgment of its limited jurisdiction
that the lower court dismissed the administrator's
counterclaim for moral damages against the oppositors,
particularly against Marcela de Borja who allegedly
uttered derogatory remarks intended to cast dishonor
to said administrator sometime in 1950 or 1951, his
Honor's ground being that the court exercising limited
jurisdiction cannot entertain claims of this kind which
should properly belong to a court of general
jurisdiction. From what ever angle it may be looked at,
a counterclaim for moral damages demanded by an
administrator against the heirs for alleged utterances,
pleadings and actuations made in the course of the
proceeding, is an extraneous matter in a testate or
intestate proceedings. The injection into the action of
incidental questions entirely foreign in probate
proceedings should not be encouraged for to do
otherwise would run counter to the clear intention of
the law, for it was held that:
The speedy settlement of the estate of deceased
persons for the benefit of the creditors and those
entitled to the residue by way of inheritance or legacy
after the debts and expenses of administration have
been paid, is the ruling spirit of our probate law
(Magabanua vs. Akel, 72 Phil., 567, 40 Off Gaz., 1871).
Atty. Tiu: You have to remember that in a settlement
case, there is no cause of action. So there can be no
counterclaim because there is no violation of a right
that you seek to enforce. A counterclaim is only proper
in an ordinary action. In the case of De Borja, a
counterclaim here was disallowed, a counterclaim for
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
moral damages. And the reason being, the cause of
action arose from defamatory statements that are not
included in the settlement case.
Powers of Settlement Court (Rule 73, Sec. 3)
Venue (Rule 73, Sec. 1)
1. Eusebio v Eusebio
G.R. No. L-8409, December 28, 1956
In the Matter of the Intestate of the deceased Andres
Eusebio. EUGENIO EUSEBIO, petitioner-appellee, vs.
AMANDA EUSEBIO, JUAN EUSEBIO, DELFIN EUSEBIO,
VICENTE EUSEBIO, and CARLOS EUSEBIO,oppositors-
appellants.
FACTS:
Eugenio Eusebio filed with the CFI of Rizal, a petition for
his appointment as administrator of the estate of his
father, Andres Eusebio, who died on November 1952,
residing, according to said petition, in the City of
Quezon. The illegitimate children objected thereto
alleging that the deceased was domiciled in San
Fernando, Pampanga, and praying, therefore, that the
case be dismissed upon the ground that venue had
been improperly filed. CFI overruled this objection and
granted said petition.
ISSUE: WON the petition was filed in the proper venue.
NO
HELD:
Domicile defined
It being apparent from the foregoing that the domicile
of origin of the decedent was San Fernando, Pampanga,
where he resided for over seventy (70) years, the
presumption is that he retained such domicile, and,
hence, residence, in the absence of satisfactory proof to
the contrary, for it is well-settled that "a domicile once
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acquired is retained until a new domicile is gained"
(Minor, Conflict of Laws, p.70; Restatement of the Law
on Conflict of Laws, p. 47; In re Estate of Johnson, 192
Iowa, 78). Under the circumstances surrounding the
case at bar, if Andres Eusebio established another
domicile, it must have been one of choice, for which the
following conditions are essential, namely: (1) capacity
to choose and freedom of choice; (2) physical presence
at the place chosen; and (3) intention to stay therein
permanently (Minor, Conflict of Laws, pp. 109-110;
Googrich, Conflict of Laws, p. 169; Velilla vs. Posadas, 62
Phil., 624; Zuellig vs. Republic of the Philippines, 46 Off.
Gaz. Suppl. No. 11, p. 220). Admittedly, the decedent
was juridically capable of choosing a domicile and had
been in Quezon City several days prior to his demise.
2. Fule v CA
G.R. No. L-40502, November 29, 1976
FACTS:
On May 2, 1973, Virginia G. Fule filed with the Court of
First Instance of Laguna, at Calamba. a petition for
letters of administration, docketed as Sp. Proc. No. 27-
C, alleging, inter alia, "that on April 26, 1973, Amado G.
Garcia, a property owner of Calamba, Laguna, died
intestate in the City of Manila, leaving real estate and
personal properties in Calamba, Laguna, and in other
places, within the jurisdiction of the Honorable Court."
At the same time, she moved ex parte for her
appointment as special administratrix over the estate.
On May 2, 1973, Judge Malvar granted the motion.
Preciosa Garcia filed an opposition to the petition,
raising the issues of jurisdiction, venue, among others.
During the hearing of the various incidents of this case
(Sp. Proc. 27-C) before Judge Malvar, 2 Virginia G. Fule
presented the death certificate of Amado G. Garcia
showing that his residence at the time of his death was
Quezon City. On her part, Preciosa B. Garcia presented
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the residence certificate of the decedent for 1973
showing that three months before his death his
residence was in Quezon City. Virginia G. Fule also
testified that Amado G. Garcia was residing in Calamba,
Laguna at the time of his death
ISSUE: WON the venue was proper NO
HELD:
Section 1, Rule 73 of the Revised Rules of Court
provides: "If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or
an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the
Court of First Instance in the province in which he
resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First
Instance of any province in which he had estate.
The aforequoted Section 1, Rule 73 (formerly Rule 75,
Section 1), specifically the clause "so far as it depends
on the place of residence of the decedent, or of the
location of the estate," is in reality a matter of venue, as
the caption of the Rule indicates: "Settlement of Estate
of Deceased Persons. Venue and Processes. It could not
have been intended to define the jurisdiction over the
subject matter, because such legal provision is
contained in a law of procedure dealing merely with
procedural matters. In plain words, it is just a matter of
method, of convenience to the parties.
What does the term "resides" mean?
In the application of venue statutes and rules — Section
1, Rule 73 of the Revised Rules of Court is of such
nature — residence rather than domicile is the
significant factor. Even where the statute uses the word
"domicile" still it is construed as meaning residence and
not domicile in the technical sense. Some cases make a
distinction between the terms "residence" and
"domicile" but as generally used in statutes fixing
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venue, the terms are synonymous, and convey the same
meaning as the term "inhabitant." In other words,
"resides" should be viewed or understood in its popular
sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of
abode. It signifies physical presence in a place and
actual stay thereat.
Different claims as to the residence of the deceased at
the time of his death
Fule, in her original petition stated that decedent was a
property owner of Laguna, who died intestate in hte
City of Manila. On the other hand, Preciosa Garcia
claims that, as appearing in the death certificate, the
last residence was at 11 Carmel Avenue, Carmel
Subdivision, Quezon City.
Death certificate controlling
On this issue, We rule that the last place of residence of
the deceased Amado G. Garcia was at 11 Carmel
Avenue, Carmel Subdivision, Quezon City, and not at
Calamba, Laguna. A death certificate is admissible to
prove the residence of the decedent at the time of his
death. Other documents also show that the last
residence was in QC (such as certificates of titles, deed
of donation, etc).
3. Jao v CA
G.R. No. 128314, May 29, 2002
RODOLFO V. JAO, petitioner, vs.COURT OF APPEALS and
PERICO V. JAO, respondents.
FACTS:
Rodolfo and Perico Jao were the only sons of the
spouses Ignacio Jao Tayag and Andrea V. Jao, who died
intestate in 1988 and 1989, respectively. The decedents
left real estate, cash, shares of stock and other personal
properties.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
On April 17, 1991, Perico instituted a petition for
issuance of letters of administration in the RTC of
Quezon City . Pending the appointment of a regular
administrator, Perico moved that he be appointed as
special administrator. He alleged that his brother,
Rodolfo, was gradually dissipating the assets of the
estate. More particularly, Rodolfo was receiving rentals
from real properties without rendering any accounting,
and forcibly opening vaults belonging to their deceased
parents and disposing of the cash and valuables therein.
Rodolfo moved for the dismissal of the petition on the
ground of improper venue. He argued that the
deceased spouses did not reside in Quezon City either
during their lifetime or at the time of their deaths. The
decedent’s actual residence was in Angeles City,
Pampanga, where his late mother used to run and
operate a bakery. As the health of his parents
deteriorated due to old age, they stayed in Rodolfo’s
residence at 61 Scout Gandia Street, Quezon City, solely
for the purpose of obtaining medical treatment and
hospitalization. Rodolfo submitted documentary
evidence previously executed by the decedents,
consisting of income tax returns, voter’s affidavits,
statements of assets and liabilities, real estate tax
payments, motor vehicle registration and passports, all
indicating that their permanent residence was in
Angeles City, Pampanga.
In his opposition,Perico countered that their deceased
parents actually resided in Rodolfo’s house in Quezon
City at the time of their deaths. As a matter of fact, it
was conclusively declared in their death certificates that
their last residence before they died was at 61 Scout
Gandia Street, Quezon City.Rodolfo himself even
supplied the entry appearing on the death certificate of
their mother, Andrea, and affixed his own signature on
the said document.
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Rodolfo filed a rejoinder, stating that he gave the
information regarding the decedents’ residence on the
death certificates in good faith and through honest
mistake. He gave his residence only as reference,
considering that their parents were treated in their late
years at the Medical City General Hospital in
Mandaluyong, Metro Manila. Their stay in his house
was merely transitory, in the same way that they were
taken at different times for the same purpose to
Perico’s residence at Legaspi Towers in Roxas
Boulevard. The death certificates could not, therefore,
be deemed conclusive evidence of the decedents’
residence in light of the other documents showing
otherwise.
ISSUE: Where should the settlement proceedings be
had --- in Pampanga, where the decedents had their
permanent residence, or in Quezon City, where they
actually stayed before their demise? Quezon City
HELD:
Rule 73, Section 1 of the Rules of Court states:
Where estate of deceased persons be settled. – If the
decedent is an inhabitant of the Philippines at the time of his
death, whether a citizen or an alien, his will shall be proved,
or letters of administration granted, and his estate settled, in
the Court of First Instance in the province in which he resides
at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which
he had estate. The court first taking cognizance of the
settlement of the estate of a decedent shall exercise
jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want
of jurisdiction appears on the record.
Clearly, the estate of an inhabitant of the Philippines
shall be settled or letters of administration granted in
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the proper court located in the province where the
decedent resides at the time of his death.
Petitioner Rodolfo invokes our ruling in the case of
Eusebio v. Eusebio, et al., where we held that the situs
of settlement proceedings shall be the place where the
decedent had his permanent residence or domicile at
the time of death. In determining residence at the time
of death, the following factors must be considered,
namely, the decedent had: (a) capacity to choose and
freedom of choice; (b) physical presence at the place
chosen; and (c) intention to stay therein permanently.
While it appears that the decedents in this case chose
to be physically present in Quezon City for medical
convenience, petitioner avers that they never adopted
Quezon City as their permanent residence.
The contention lacks merit.
The facts in Eusebio were different from those in the
case at bar. The decedent therein, Andres Eusebio,
passed away while in the process of transferring his
personal belongings to a house in Quezon City. He was
then suffering from a heart ailment and was advised by
his doctor/son to purchase a Quezon City residence,
which was nearer to his doctor. While he was able to
acquire a house in Quezon City, Eusebio died even
before he could move therein. In said case, we ruled
that Eusebio retained his domicile --- and hence,
residence --- in San Fernando, Pampanga. It cannot be
said that Eusebio changed his residence because,
strictly speaking, his physical presence in Quezon City
was just temporary.
In the case at bar, there is substantial proof that the
decedents have transferred to petitioner’s Quezon City
residence. Petitioner failed to sufficiently refute
respondent’s assertion that their elderly parents stayed
in his house for some three to four years before they
died in the late 1980s.
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Entries in Death Certificate Presumed Correct
Furthermore, the decedents’ respective death
certificates state that they were both residents of
Quezon City at the time of their demise. Significantly, it
was petitioner himself who filled up his late mother’s
death certificate. To our mind, this unqualifiedly shows
that at that time, at least, petitioner recognized his
deceased mother’s residence to be Quezon City.
Moreover, petitioner failed to contest the entry in
Ignacio’s death certificate, accomplished a year earlier
by respondent.
The recitals in the death certificates, which are
admissible in evidence, were thus properly considered
and presumed to be correct by the court a quo. We
agree with the appellate court’s observation that since
the death certificates were accomplished even before
petitioner and respondent quarreled over their
inheritance, they may be relied upon to reflect the true
situation at the time of their parents’ death.
The death certificates thus prevailed as proofs of the
decedents’ residence at the time of death, over the
numerous documentary evidence presented by
petitioner. To be sure, the documents presented by
petitioner pertained not to residence at the time of
death, as required by the Rules of Court, but to
permanent residence or domicile. In Garcia-Fule v.
Court of Appeals, we held:
In statutes fixing venue, “domicile” and “residence”
are synonymous
xxx xxx xxx the term "resides" connotes ex vi termini
"actual residence" as distinguished from "legal
residence or domicile." This term "resides", like the
terms "residing" and "residence", is elastic and should
be interpreted in the light of the object or purpose of
the statute or rule in which it is employed. In the
application of venue statutes and rules – Section 1, Rule
73 of the Revised Rules of Court is of such nature –
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
residence rather than domicile is the significant factor.
Even where the statute uses the word "domicile" still it
is construed as meaning residence and not domicile in
the technical sense. Some cases make a distinction
between the terms "residence" and "domicile" but as
generally used in statutes fixing venue, the terms are
synonymous, and convey the same meaning as the term
"inhabitant." In other words, "resides" should be
viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person,
actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. In this
popular sense, the term means merely residence, that
is, personal residence, not legal residence or domicile.
Residence simply requires bodily presence as an
inhabitant in a given place, while domicile requires
bodily presence in that place and also an intention to
make it one’s domicile. No particular length of time of
residence is required though; however, the residence
must be more than temporary.
Decedent’s stay in QC was more than temporary
Both the settlement court and the Court of Appeals
found that the decedents have been living with
petitioner at the time of their deaths and for some time
prior thereto. We find this conclusion to be
substantiated by the evidence on record. A close
perusal of the challenged decision shows that, contrary
to petitioner’s assertion, the court below considered
not only the decedents’ physical presence in Quezon
City, but also other factors indicating that the
decedents’ stay therein was more than temporary. In
the absence of any substantial showing that the lower
courts’ factual findings stemmed from an erroneous
apprehension of the evidence presented, the same
must be held to be conclusive and binding upon this
Court.
Petitioner strains to differentiate between the venue
provisions found in Rule 4, Section 2, on ordinary civil
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actions, and Rule 73, Section 1, which applies
specifically to settlement proceedings. He argues that
while venue in the former understandably refers to
actual physical residence for the purpose of serving
summons, it is the permanent residence of the
decedent which is significant in Rule 73, Section 1.
Petitioner insists that venue for the settlement of
estates can only refer to permanent residence or
domicile because it is the place where the records of
the properties are kept and where most of the
decedents’ properties are located.
Petitioner’s argument fails to persuade.
It does not necessarily follow that the records of a
person’s properties are kept in the place where he
permanently resides. Neither can it be presumed that a
person’s properties can be found mostly in the place
where he establishes his domicile. It may be that he has
his domicile in a place different from that where he
keeps his records, or where he maintains extensive
personal and business interests. No generalizations can
thus be formulated on the matter, as the question of
where to keep records or retain properties is entirely
dependent upon an individual’s choice and peculiarities.
Standing Rule: "Residence", in the context of venue
provisions, means nothing more than a person’s actual
residence or place of abode, provided he resides
therein with continuity and consistency.
At any rate, petitioner is obviously splitting straws when
he differentiates between venue in ordinary civil actions
and venue in special proceedings. In Raymond v. Court
of Appeals19 and Bejer v. Court of Appeals,we ruled
that venue for ordinary civil actions and that for special
proceedings have one and the same meaning. As thus
defined, "residence", in the context of venue provisions,
means nothing more than a person’s actual residence or
place of abode, provided he resides therein with
continuity and consistency.. All told, the lower court
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
and the Court of Appeals correctly held that venue for
the settlement of the decedents’ intestate estate was
properly laid in the Quezon City court.
4. San Luis v San Luis
G.R. No. 133743, February 6, 2007
FACTS:
Felisicimo contracted three marriages during his
lifetime: 1st Virginia Sulit (predeceased Feli), Mary lee
Corwin (US divorce), Felicidad. Felicidad filed a petition
for letters of administration before RTC Makati. Rodolfo
San Luis, one of the children of Felicisimo by his first
marriage, filed a motion to dismiss on the grounds of
improper venue and failure to state a cause of action.
Rodolfo claimed that the petition for letters of
administration should have been filed in the Province of
Laguna because this was Felicisimo’s place of residence
prior to his death.
ISSUE: WON the petitioner was properly filed in
Makati? YES.
HELD:
“resides”- there must be continuity and consistency
SC reiterated the ruling in thecase of FULE. SC futher
held that It is incorrect for petitioners to argue that
"residence," for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is synonymous
with "domicile." The rulings in Nuval and Romualdez are
inapplicable to the instant case because they involve
election cases. Needless to say, there is a distinction
between "residence" for purposes of election laws and
"residence" for purposes of fixing the venue of actions.
In election cases, "residence" and "domicile" are
treated as synonymous terms, that is, the fixed
permanent residence to which when absent, one has
the intention of returning. However, for purposes of
fixing venue under the Rules of Court, the "residence"
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of a person is his personal, actual or physical habitation,
or actual residence or place of abode, which may not
necessarily be his legal residence or domicile provided
he resides therein with continuity and
consistency. Hence, it is possible that a person may
have his residence in one place and domicile in another.
In the instant case, while petitioners established that
Felicisimo was domiciled in Sta. Cruz, Laguna,
respondent proved that he also maintained a residence
in Alabang, Muntinlupa from 1982 up to the time of his
death. Respondent submitted in evidence the Deed of
Absolute Sale dated January 5, 1983 showing that the
deceased purchased the aforesaid property. She also
presented billing statements from the Philippine Heart
Center and Chinese General Hospital for the period
August to December 1992 indicating the address of
Felicisimo at "100 San Juanico, Ayala Alabang,
Muntinlupa." Respondent also presented proof of
membership of the deceased in the Ayala Alabang
Village Association and Ayala Country Club, Inc., letter-
envelopes from 1988 to 1990 sent by the deceased’s
children to him at his Alabang address, and the
deceased’s calling cards stating that his home/city
address is at "100 San Juanico, Ayala Alabang Village,
Muntinlupa" while his office/provincial address is in
"Provincial Capitol, Sta. Cruz, Laguna."
Parties in Interest
Probate Proceeding
1. Acain v IAC
G.R. No. 72706 October 27, 1987
FACTS:
Constantino Acain filed on the RTC, a petition for the
probate of the will of the late Nemesio Acain and for
the issuance to the same petitioner of letters
testamentary on the premise that Nemesio Acain died
leaving a will in which petitioner and his brothers
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Antonio, Flores and Jose and his sisters Anita,
Concepcion, Quirina and Laura were instituted as heirs.
The oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of tile deceased
and the latter's widow Rosa Diongson Vda. de Acain
filed a motion to dismiss on the following grounds for
the petitioner has no legal capacity to institute these
proceedings; (2) he is merely a universal heir and (3) the
widow and the adopted daughter have been preterited.
ISSUE: WON the legally adopted daughter and the
widow may legally oppose? YES
HELD:
Legally adopted daughter may oppose since she was
preterited and that she will stand benefited in the
annulment of the institution of the heirs
Legal adoption by the testator has not been questioned
by petitioner. Under Article 39 of P.D. No. 603, known
as the Child and Youth Welfare Code, adoption gives to
the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be
denied that she has totally omitted and preterited in
the will of the testator and that both adopted child and
the widow were deprived of at least their legitime.
Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of
the legally adopted child.
Pretention annuls the institution of an heir and
annulment throws open to intestate succession the
entire The only provisions which do not result in
intestacy are the legacies and devises made in the will
for they should stand valid and respected, except
insofar as the legitimes are concerned.
The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of The
Alvar, Ceballo, Cuabo
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effect of annulling the "Institution of heirs will be,
necessarily, the opening of a total intestacy except that
proper legacies and devises must, as already stated
above, be respected.
Since there is preterition, Constantino (brother) has no
legal standing to petition for probate.
Intestate Proceeding
1. San Luis v San Luis
G.R. No. 133743 February 6, 2007
EDGAR SAN LUIS, Petitioner,
vs.
FELICIDAD SAN LUIS, Respondent.
x ---------------------------------------------------- x
G.R. No. 134029 February 6, 2007
RODOLFO SAN LUIS, Petitioner,
vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN
LUIS, Respondent.
FACTS:
During his lifetime, Felicisimo contracted three
marriages. His first marriage was with Virginia Sulit on
out of which were born six children. Virginia
predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married
Merry Lee Corwin, with whom he had a son, Tobias but
which marriage ended in divorce.
On June 20, 1974, Felicisimo married respondent
Felicidad San Luis. He had no children with respondent
but lived with her for 18 years from the time of their
marriage up to his death on December 18, 1992.
On December 17, 1993, respondent filed a petition for
letters of administration before the Regional Trial Court
of Makati City.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Respondent alleged that she is the widow of Felicisimo;
that, at the time of his death, the decedent was residing
at 100 San Juanico Street, New Alabang Village,
Alabang, Metro Manila; that the decedent’s surviving
heirs are respondent as legal spouse, his six children by
his first marriage, and son by his second marriage; that
the decedent left real properties, both conjugal and
exclusive, valued at P30,304,178.00 more or less; that
the decedent does not have any unpaid debts.
Respondent prayed that the conjugal partnership assets
be liquidated and that letters of administration be
issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of
the children of Felicisimo by his first marriage, filed a
motion to dismiss on the grounds of improper venue
and failure to state a cause of action.
Rodolfo claimed that the petition for letters of
administration should have been filed in the Province of
Laguna because this was Felicisimo’s place of residence
prior to his death. He further claimed that respondent
has no legal personality to file the petition because she
was only a mistress of Felicisimo since the latter, at the
time of his death, was still legally married to Merry Lee.
In the instant consolidated petitions, Edgar and Rodolfo
insist that the venue of the subject petition for letters of
administration was improperly laid because at the time
of his death, Felicisimo was a resident of Sta. Cruz,
Laguna. They contend that pursuant to our rulings in
Nuval v. Guray and Romualdez v. RTC, Br. 7, Tacloban
City, "residence" is synonymous with "domicile" which
denotes a fixed permanent residence to which when
absent, one intends to return. They claim that a person
can only have one domicile at any given time. Since
Felicisimo never changed his domicile, the petition for
letters of administration should have been filed in Sta.
Cruz, Laguna.
Alvar, Ceballo, Cuabo
3Manresa
ISSUE: What is the proper venue for the petition for
letters administration? Makati City
HELD:
Under Section 1, Rule 73 of the Rules of Court, the
petition for letters of administration of the estate of
Felicisimo should be filed in the Regional Trial Court of
the province "in which he resides at the time of his
death." In the case of Garcia Fule v. Court of Appeals,
we laid down the doctrinal rule for determining the
residence – as contradistinguished from domicile – of
the decedent for purposes of fixing the venue of the
settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual
residence" as distinguished from "legal residence or
domicile." This term "resides," like the terms "residing"
and "residence," is elastic and should be interpreted in
the light of the object or purpose of the statute or rule
in which it is employed. In the application of venue
statutes and rules – Section 1, Rule 73 of the Revised
Rules of Court is of such nature – residence rather than
domicile is the significant factor. Even where the statute
uses the word "domicile" still it is construed as meaning
residence and not domicile in the technical sense. Some
cases make a distinction between the terms "residence"
and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same
meaning as the term "inhabitant." In other words,
"resides" should be viewed or understood in its popular
sense, meaning, the personal, actual or physical
habitation of a person, actual residence or place of
abode. It signifies physical presence in a place and
actual stay thereat. In this popular sense, the term
means merely residence, that is, personal residence,
not legal residence or domicile. Residence simply
requires bodily presence as an inhabitant in a given
place, while domicile requires bodily presence in that
place and also an intention to make it one’s domicile.
No particular length of time of residence is required
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
though; however, the residence must be more than
temporary.
It is incorrect for petitioners to argue that "residence,"
for purposes of fixing the venue of the settlement of the
estate of Felicisimo, is synonymous with "domicile." The
rulings in Nuval and Romualdez are inapplicable to the
instant case because they involve election cases.
Needless to say, there is a distinction between
"residence" for purposes of election laws and
"residence" for purposes of fixing the venue of actions.
In election cases, "residence" and "domicile" are
treated as synonymous terms, that is, the fixed
permanent residence to which when absent, one has
the intention of returning. However, for purposes of
fixing venue under the Rules of Court, the "residence"
of a person is his personal, actual or physical habitation,
or actual residence or place of abode, which may not
necessarily be his legal residence or domicile provided
he resides therein with continuity and consistency.
Hence, it is possible that a person may have his
residence in one place and domicile in another.
In the instant case, while petitioners established that
Felicisimo was domiciled in Sta. Cruz, Laguna,
respondent proved that he also maintained a residence
in Alabang, Muntinlupa from 1982 up to the time of his
death. Respondent submitted in evidence the Deed of
Absolute Sale dated January 5, 1983 showing that the
deceased purchased the aforesaid property. She also
presented billing statements from the Philippine Heart
Center and Chinese General Hospital for the period
August to December 1992 indicating the address of
Felicisimo at "100 San Juanico, Ayala Alabang,
Muntinlupa." Respondent also presented proof of
membership of the deceased in the Ayala Alabang
Village Association and Ayala Country Club, Inc., letter-
envelopes from 1988 to 1990 sent by the deceased’s
children to him at his Alabang address, and the
deceased’s calling cards stating that his home/city
address is at "100 San Juanico, Ayala Alabang Village,
Alvar, Ceballo, Cuabo
3Manresa
Muntinlupa" while his office/provincial address is in
"Provincial Capitol, Sta. Cruz, Laguna."
From the foregoing, we find that Felicisimo was a
resident of Alabang, Muntinlupa for purposes of fixing
the venue of the settlement of his estate. Consequently,
the subject petition for letters of administration was
validly filed in the Regional Trial Court which has
territorial jurisdiction over Alabang, Muntinlupa. The
subject petition was filed on December 17, 1993. At
that time, Muntinlupa was still a municipality and the
branches of the Regional Trial Court of the National
Capital Judicial Region which had territorial jurisdiction
over Muntinlupa were then seated in Makati City as per
Supreme Court Administrative Order No. 3. Thus, the
subject petition was validly filed before the Regional
Trial Court of Makati City.
Atty. Tiu: In San Luis vs. San Luis, the SC made a ruling
that the term residence is the same as the one laid down
in the case of Fule and Hao. It is a reiteration of the
doctrine in Fule and Hao. And it distinguishes the
concept of residence between a settlement case and for
purposes of election. So for purposes of settlement of
the estate, residence or reside should mean the personal
actual or physical habitation of the person, actual
residence or place of abode. It is not the same as
domicile in election laws that there should be intent to
return.
What is meant by the phrase in Section 1 that “The
court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts.”?
Atty. Tiu: This only apply for nonresident decedents and
not to resident decedents because there is only one
venue and that is where he last resided at the time of his
death. For the nonresident, you have plenty of options if
there are several properties present in many locations.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Now you choose. But when you made your choice, it
would exclude all the others. Meaning you settle there,
to the exclusion of others. The purpose for that is for the
orderly administration and successful administration of
the estate. Because regardless of the number of
properties of the decedent, there is only one estate,
there is only one settlement proceeding.
2. Hilado v CA
G.R. No. 164108, May 8, 2009
FACTS:
At the time of the death of Benedicto, there were 2 civil
cases (based on tort) pending with the deceased as
defendant and Hilado as one of the plaintiffs therein.
Hilado sought to intervene in the proceeding for the
estate of Benedicto claiming that he in a party-in-
interest.
ISSUE: WON Hilado may intervene. Yes , but only to a
limited extent.
HELD: Petitioners’ interests in the estate of Benedicto
may be inchoate interests, but they are viable interests
nonetheless. We are mindful that the Rules of Special
Proceedings allows not just creditors, but also “any
person interested” or “persons interested in the estate”
various specified capacities to protect their respective
interests in the estate. Anybody with a contingent claim
based on a pending action for quasi-delict against a
decedent may be reasonably concerned that by the
time judgment is rendered in their favor, the estate of
the decedent would have already been distributed, or
diminished to the extent that the judgment could no
longer be enforced against it.
In the same manner that the Rules on Special
Proceedings do not provide a creditor or any person
interested in the estate, the right to participate in every
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3Manresa
aspect of the testate or intestate proceedings, but
instead provides for specific instances when such
persons may accordingly act in those proceedings, we
deem that while there is no general right to intervene
on the part of the petitioners, they may be allowed to
seek certain prayers or reliefs from the intestate court
not explicitly provided for under the Rules, if the prayer
or relief sought is necessary to protect their interest in
the estate, and there is no other modality under the
Rules by which such interests can be protected
3. Tayag v Tayag –Gallor
G.R. No. 174680, March 24, 2008
FACTS:
On September 7, 2000, Ismael Tayag died intestate.
On 15 January 2001, respondent herein, Felicidad A.
Tayag-Gallor, filed a petition for the issuance of letters
of administration over the estate of Ismael Tayag. She
alleged that she is one of the three (3) illegitimate
children of the late Ismael Tayag and Ester C. Angeles.
The decedent was married to petitioner herein, Victoria
C. Tayag, but the two allegedly did not have any
children of their own.
Petitioner Victoria Tayag opposed. She averred that it is
necessary to allege that respondent was acknowledged
and recognized by Ismael Tayag as his illegitimate child.
There being no such allegation, the action becomes one
to compel recognition which cannot be brought after
the death of the putative father.
ISSUE: WON respondent’s petition for the issuance of
letters of administration sufficiently states a cause of
action (considering that respondent merely alleged
therein that she is an illegitimate child of the decedent,
without stating that she had been acknowledged or
recognized as such by the latter) YES
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
HELD:
Petition must be filed by interested person
Rule 79 of the Rules of Court provides that a petition for
the issuance of letters of administration must be filed
by an interested person. In Saguinsin v. Lindayag, the
Court defined an interested party as one who would be
benefited by the estate, such as an heir, or one who has
a claim against the estate, such as a creditor. This
interest, furthermore, must be material and direct, not
merely indirect or contingent.
Hence, where the right of the person filing a petition for
the issuance of letters of administration is dependent
on a fact which has not been established or worse, can
no longer be established, such contingent interest does
not make her an interested party. Here lies the
complication in the case which the appellate court had
not discussed, although its disposition of the case is
correct.
Essentially, the petition for the issuance of letters of
administration is a suit for the settlement of the
intestate estate of Ismael Tayag. The right of
respondent to maintain such a suit is dependent on
whether she is entitled to successional rights as an
illegitimate child of the decedent which, in turn, may be
established through voluntary or compulsory
recognition.
Voluntary recognition
Voluntary recognition must be express such as that in a
record of birth appearing in the civil register, a final
judgment, a public instrument or private handwritten
instrument signed by the parent concerned. The
voluntary recognition of an illegitimate child by his or
her parent needs no further court action and is,
therefore, not subject to the limitation that the action
for recognition be brought during the lifetime of the
putative parent.[16] Judicial or compulsory recognition,
on the other hand, may be demanded by the
Alvar, Ceballo, Cuabo
3Manresa
illegitimate child of his parents and must be brought
during the lifetime of the presumed parents.
Petitioner’s thesis is essentially based on her contention
that by Ismael Tayag’s death, respondent’s illegitimate
filiation and necessarily, her interest in the decedent’s
estate which the Rules require to be material and
direct, may no longer be established. Petitioner,
however, overlooks the fact that respondent’s
successional rights may be established not just by a
judicial action to compel recognition but also by proof
that she had been voluntarily acknowledged and
recognized as an illegitimate child.
In Uyguangco v. Court of Appeals, supra, Graciano
Uyguangco, claiming to be an illegitimate child of the
decedent, filed a complaint for partition against the
latter’s wife and legitimate children. However, an
admission was elicited from him in the course of his
presentation of evidence at the trial that he had none of
the documents mentioned in Article 278 of the 1950
Civil Code to show that he was the illegitimate son of
the decedent. The wife and legitimate children of the
decedent thereupon moved for the dismissal of the
case on the ground that he could no longer prove his
alleged filiation under the applicable provision of the
Civil Code.
The Court, applying the provisions of the Family Code
which had then already taken effect, ruled that since
Graciano was claiming illegitimate filiation under the
second paragraph of Article 172 of the Family Code, i.e.,
open and continuous possession of the status of an
illegitimate child, the action was already barred by the
death of the alleged father.
In contrast, respondent in this case had not been given
the opportunity to present evidence to show whether
she had been voluntarily recognized and acknowledged
by her deceased father because of petitioner’s
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
opposition to her petition and motion for hearing on
affirmative defenses. There is, as yet, no way to
determine if her petition is actually one to compel
recognition which had already been foreclosed by the
death of her father, or whether indeed she has a
material and direct interest to maintain the suit by
reason of the decedent’s voluntary acknowledgment or
recognition of her illegitimate filiation.
Mere allegation that respondent is illegitimate child is
sufficient
We find, therefore, that the allegation that respondent
is an illegitimate child of the decedent suffices even
without further stating that she has been so recognized
or acknowledged. A motion to dismiss on the ground
of failure to state a cause of action in the complaint
hypothetically admits the truth of the facts alleged
therein. Assuming the fact alleged to be true, i.e.,
that respondent is the
decedent’s illegitimate child, her interest in the estate
as such would definitely be material and direct. The
appellate court was, therefore, correct in allowing the
proceedings to continue, ruling that, “respondent still
has the duty to prove the allegation (that she is an
illegitimate child of the decedent), just as the petitioner
has the right to disprove it, in the course of the
settlement proceedings.”
4. San Juan v Cruz
G.R. No. 167321, July 31, 2006
EPIFANIO SAN JUAN, JR., petitioner, vs.JUDGE RAMON
A. CRUZ, REGIONAL TRIAL COURT, BRANCH 224,
QUEZON CITY and ATTY. TEODORICO A.
AQUINO, respondents.
FACTS:
Loreto Samia San Juan executed a Last Will and
Testament naming Oscar Casa as one of the devisees
therein. Upon Loreto's death on October 25, 1988, Atty.
Alvar, Ceballo, Cuabo
3Manresa
Teodorico A. Aquino filed a petition for the probate of
the will in the Regional Trial Court (RTC) of Quezon City.
While the petition was pending, Oscar Casa died
intestate on May 24, 1999. The firm of Aquino, Galang,
Lucas, Espinoza, Miranda & Associates entered their
appearance as counsel of Federico Casa, Jr., who
claimed to be one of the heirs of Oscar Casa and their
representative.
On August 14, 2002, the probate court issued an Order
denying the entry of appearance of said law firm,
considering that Federico Casa, Jr. was not the executor
or administrator of the estate of the devisee, hence,
cannot be substituted for the deceased as his
representative as required by Section 16, Rule 3 of the
Rules of Court. On November 22, 2002, the court issued
an order directing Aquino to secure the appointment of
an administrator or executor of the estate of Oscar Casa
in order that the appointee be substituted in lieu of the
said deceased.
On February 26, 2003, Aquino filed a pleading entitled
"Appointment of Administrator" the Casa heirs, praying
that Federico Casa, Jr. be designated as administrator
of the estate of Oscar Casa and that he be substituted
for the deceased.
In compliance with the order of the court, Epifanio San
Juan filed a "Motion to Declare Appointment of
Administrator As Inadequate or Insufficient." He
maintained that the heirs should present an
administrator of the estate of Oscar Casa as the
representative of the estate in the case.
In his reply, Aquino stated that, under Section 16, Rule 3
of the Rules of Court, the heirs of Oscar Casa may be
substituted for the deceased without need for
appointment of an administrator or executor of the
estate. He also claimed that the court is enjoined to
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
require the representative to appear before the court
and be substituted within the prescribed period.
The RTC DENIED the motion of San Juan. The court
held that there was, after all, no need for the
appointment of an administrator or executor as
substitute for the deceased devisee. It is enough, the
court declared, that a representative be appointed as
provided in Section 16, Rule 3 of the Rules of Court.
In an MR, San Juan further posited that the estate court,
sitting as a probate court, does not only decide on the
questions of identity and testamentary capacity of the
testator and the due execution of the will; it is likewise
charged with the settlement of the estate of the
testator after the will has been approved. Thus, the
probate court must not only determine the validity of
the will, but also the rightful heirs, legatees and
devisees for the purpose of settling the estate of the
testator.
The MR was denied hence this petition .
ISSUE: Whether there is a need for the appointment of
an administrator of the estate of Oscar Casa, or whether
it is enough that he be substituted by his heirs.
HELD:
Section 16, Rule 3 of the 1997 Rules of Civil Procedure
reads:
Sec. 16. Death of party; duty of counsel. – Whenever a party
to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the
court within thirty (30) days after such death of the fact
thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to
comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted
for the deceased, without requiring the appointment of an
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3Manresa
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period
of thirty (30) days from notice.
If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the opposing
party, within a specified time, to procure the appointment of
an executor or administrator for the estate of the deceased
and the latter shall immediately appear for and on behalf of
the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be
recovered as costs.
The rule is a revision of Section 17, Rule 3 of the Rules
of Court which reads:
Death of party. – After a party dies and the claim is not
thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and
to be substituted for the deceased, within a period of thirty
(30) days, or within such time as may be granted. If the legal
representative fails to appear within said time, the court may
order the opposing party to procure the appointment of a
legal representative of the deceased within a time to be
specified by the court, and the representative shall
immediately appear for and on behalf of the interest of the
deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be
recovered as costs. The heirs of the deceased may be allowed
to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court
may appoint guardian ad litem for the minor heirs.
The second paragraph of the rule is plain and explicit:
the heirs may be allowed to be substituted for the
deceased without requiring the appointment of an
administrator or executor. However, if within the
specified period a legal representative fails to appear,
the court may order the opposing counsel, within a
specified period, to process the appointment of an
administrator or executor who shall immediately
appear for the estate of the deceased. The
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
pronouncement of this Court in Lawas v. Court of
Appeals(relied upon by petitioner), that priority is given
to the legal representative of the deceased (the
executor or administrator) and that it is only in case of
unreasonable delay in the appointment of an executor
or administrator, or in cases where the heirs resort to
an extrajudicial settlement of the estate that the court
may adopt the alternative of allowing the heirs of the
deceased to be substituted for the deceased, is no
longer true. In Gochan v. Young, a case of fairly recent
vintage, the Court ruled as follows:
The above-quoted rules, while permitting an executor
or administrator to represent or to bring suits on behalf
of the deceased, do not prohibit the heirs from
representing the deceased. These rules are easily
applicable to cases in which an administrator has
already been appointed. But no rule categorically
addresses the situation in which special proceedings for
the settlement of an estate have already been
instituted, yet no administrator has been appointed. In
such instances, the heirs cannot be expected to wait for
the appointment of an administrator; then wait further
to see if the administrator appointed would care
enough to file a suit to protect the rights and the
interests of the deceased; and in the meantime do
nothing while the rights and the properties of the
decedent are violated or dissipated.
The Rules are to be interpreted liberally in order to
promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding.
They cannot be interpreted in such a way as to
unnecessarily put undue hardships on litigants. For the
protection of the interests of the decedent, this Court
has in previous instances recognized the heirs as proper
representatives of the decedent, even when there is
already an administrator appointed by the court. When
no administrator has been appointed, as in this case,
there is all the more reason to recognize the heirs as the
proper representatives of the deceased. Since the Rules
Alvar, Ceballo, Cuabo
3Manresa
do not specifically prohibit them from representing the
deceased, and since no administrator had as yet been
appointed at the time of the institution of the Complaint
with the SEC, we see nothing wrong with the fact that it
was the heirs of John D. Young, Sr. who represented his
estate in the case filed before the SEC.
The heirs of the estate of Oscar Casa do not need to
first secure the appointment of an administrator of his
estate, because from the very moment of his death,
they stepped into his shoes and acquired his rights as
devisee/legatee of the deceased Loreto San Juan. Thus,
a prior appointment of an administrator or executor of
the estate of Oscar Casa is not necessary for his heirs to
acquire legal capacity to be substituted as
representatives of the estate. Said heirs may designate
one or some of them as their representative before the
trial court.
Summary Settlement (Rule 74, Sec. 2)
Regular Settlement Proceeding
 Testate Proceedings
 Venue (Rule 73, Sec. 1)
1. Uriarte v CFI of Negros
G.R. Nos. L-21938-39 May 29, 1970
VICENTE URIARTE, petitioner, vs.THE COURT OF FIRST
INSTANCE OF NEGROS OCCIDENTAL (12th Judicial
District) THE COURT OF FIRST INSTANCE OF MANILA,
BRANCH IV, JUAN URIARTE ZAMACONA and HIGINIO
URIARTE, respondents.
FACTS:
Petitioner filed with the Negros Court a petition for the
settlement of the estate of the late Don Juan Uriarte y
Goite(non-resident). Private respondents herein, filed
an opposition to the above-mentioned petition alleging
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu

that he was a nephew of the deceased Juan Uriarte y
Goite who had "executed a Last Will and Testament in
Spain, a duly authenticated copy whereof has been
requested and which shall be submitted to this
Honorable Court upon receipt thereof," and further
questioning petitioner's capacity and interest to
commence the intestate proceeding.
Private respondent, commenced Special Proceeding in
the Manila Court for the probate of a document alleged
to be the last will of the deceased Juan Uriarte y Goite,
and on the same date he filed in Special Proceeding No.
6344 of the Negros Court a motion to dismiss the same
on the gorund that, as the deceased Juan Uriarte y
Goite had left a last will, there was no legal basis to
proceed with said intestate proceedings
Petitioner opposed the aforesaid motion to dismiss
contending that, as the Negros Court was first to take
cognizance of the settlement of the estate of the
deceased Juan Uriarte y Goite, it had acquired exclusive
jurisdiction over same pursuant to Rule 75, Section 1 of
the Rules of Court.
Negros Court sustained the motion to dismiss and
dismissed the Special Proceeding pending before it.
ISSUE: WON the Negros Court observed the proper
procedure? NO
HELD:
Negros court has jurisdiction
The Rules provides that the estate of a decedent
inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, shall be in the court of
first instance in the province in which he resided at the
time of his death, and if he is an inhabitant of a foreign
country, the court of first instance of any province in
which he had estate. Accordingly, when the estate to be
settled is that of a non-resident alien — like the
deceased Juan Uriarte y Goite — the Courts of First
Alvar, Ceballo, Cuabo
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Instance in provinces where the deceased left any
property have concurrent jurisdiction to take
cognizance of the proper special proceeding for the
settlement of his estate. In the case before Us, these
Courts of First Instance are the Negros and the Manila
Courts — province and city where the deceased Juan
Uriarte y Goite left considerable properties. From this
premise petitioner argues that, as the Negros Court had
first taken cognizance of the special proceeding for the
settlement of the estate of said decedent (Special
Proceeding No. 6344), the Manila Court no longer had
jurisdiction to take cognizance of Special Proceeding.
The proper procedure would have been to submit the
will in Negros Court
Private Respondent should have submitted said will for
probate to the Negros Court, either in a separate special
proceeding or in an appropriate motion for said
purpose filed in the already pending Special Proceeding
No. 6344. In the first place, it is not in accord with public
policy and the orderly and inexpensive administration
of justice to unnecessarily multiply litigation, especially
if several courts would be involved. This, in effect, was
the result of the submission of the will aforesaid to the
Manila Court. In the second place, when respondent
HiginioUriarte filed an opposition to Vicente Uriarte's
petition for the issuance of letters of administration, he
had already informed the Negros Court that the
deceased Juan Uriarte y Goite had left a will in Spain, of
which a copy had been requested for submission to said
court; and when the other respondent, Juan
UriarteZamacona, filed his motion to dismiss Special
Proceeding No. 6344, he had submitted to the Negros
Court a copy of the alleged will of the decedent, from
which fact it may be inferred that, like HiginioUriarte,
he knew before filing the petition for probate with the
Manila Court that there was already a special
proceeding pending in the Negros Court for the
settlement of the estate of the same deceased person.
As far as HiginioUriarte is concerned, it seems quite
 Case Digest for Special Proceedings
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clear that in his opposition to petitioner's petition in
Special Proceeding No. 6344, he had expressly promised
to submit said will for probate to the Negros Court.
Probate of Will (Rule 75, Sec. 1)
RULE 75
Production of Will. Allowance of Will Necessary
Section 1. Allowance necessary. Conclusive as to
execution. — No will shall pass either real or personal
estate unless it is proved and allowed in the proper
court. Subject to the right of appeal, such allowance of
the will shall be conclusive as to its due execution.
Section 2. Custodian of will to deliver. — The person
who has custody of a will shall, within twenty (20) days
after he knows of the death of the testator, deliver the
will to the court having jurisdiction, or to the executor
named in the will.
Section 3. Executor to present will and accept or refuse
trust. — A person named as executor in a will shall,
within twenty (20) days after he knows of the death of
the testate, or within twenty (20) days after he knows
that he is named executor if he obtained such
knowledge after the death of the testator, present such
will to the court having jurisdiction, unless the will has
reached the court in any other manner, and shall,
within such period, signify to the court in writing his
acceptance of the trust or his refusal to accept it.
Section 4. Custodian and executor subject to fine for
neglect. — A person who neglects any of the duties
required in the two last preceding sections without
excused satisfactory to the court shall be fined not
exceeding two thousand pesos.
Section 5. Person retaining will may be committed. — A
person having custody of a will after the death of the
testator who neglects without reasonable cause to
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deliver the same, when ordered so to do, to the court
having jurisdiction, may be committed to prison and
there kept until he delivers the will.
2. Nuguid v Nuguid
G.R. No. L-23445, June 23, 1966
FACTS:
Rosario Nuguid died on December 30, 1962, single,
without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid
and Paz Salonga Nuguid, and six (6) brothers and sisters,
namely: Alfredo, Federico, Remedios, Conrado, Lourdes
and Alberto, all surnamed Nuguid.
Petitioner Remedios Nuguid presented before the CFI a
holographic will allegedly executed by Rosario 11 years
before her death. The will instituted Remedios as the
universal heir.
The father and mother of decedent opposed the said
probate on that ground that by the institution of
petitioner Remedios Nuguid as universal heir of the
deceased, oppositors — who are compulsory heirs of
the deceased in the direct ascending line — were
illegally preterited and that in consequence the
institution is void.
ISSUE: WON the court may rule on the intrinsic validity
of the will YES
HELD:
Probate generally confined to due execution; extrinsic
validity
Right at the outset, a procedural aspect has engaged
our attention. The case is for the probate of a will. The
court's area of inquiry is limited — to an examination of,
and resolution on, the extrinsic validity of the will. The
due execution thereof, the testatrix's testamentary
capacity, and the compliance with the requisites or
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solemnities by law prescribed, are the questions solely
to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings — is not
called upon to rule on the intrinsic validity or efficacy of
the provisions of the will, the legality of any devise or
legacy therein.
A peculiar situation is here thrust upon us. The parties
shunted aside the question of whether or not the will
should be allowed probate. For them, the meat of the
case is the intrinsic validity of the will. Normally, this
comes only after the court has declared that the will has
been duly authenticated. But petitioner and oppositors,
in the court below and here on appeal, travelled on the
issue of law, to wit: Is the will intrinsically a nullity?
Waste of time if case was to be remanded for probate
We pause to reflect. If the case were to be remanded
for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught
that appears in the record, in the event of probate or if
the court rejects the will, probability exists that the case
will come up once again before us on the same issue of
the intrinsic validity or nullity of the will. Result: waste
of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the
validity of the provisions of the will in question. After
all, there exists a justiciable controversy crying for
solution.
The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the
direct ascending line her parents. And, the will
completely omits both of them. This is a clear case of
preterition.
ART. 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
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after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious.
Really, as we analyze the word annul employed in the
statute, there is no escaping the conclusion that the
universal institution of petitioner to the entire
inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal
heir — without any other testamentary disposition in
the will — amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article
854 offers no leeway for inferential interpretation.
Ineffective disinheritance vs preterition
Petitioner also avers that the present is "a case of
ineffective disinheritance rather than one of
preterition". From this, petitioner draws the conclusion
that Article 854 "does not apply to the case at bar". This
argument fails to appreciate the distinction between
pretention and disinheritance.
Preterition "consists in the omission in the testator's
will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are
expressly disinherited." Disinheritance, in turn, "is a
testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by
law." In Manresa's own words: "La privacion expresa de
la legitima constituye la desheredacion. La privacion
tacita de la misma se denomina pretericion." Sanchez
Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition,
upon the other hand, is presumed to be "involuntaria".
Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself.
The will here does not explicitly disinherit the testatrix's
parents, the forced heirs. It simply omits their names
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altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced
heirs suffer from preterition.
On top of this is the fact that the effects flowing from
preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, "shall annul the institution of heir".
This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance shall
also "annul the institution of heirs", put only "insofar as
it may prejudice the person disinherited", which last
phrase was omitted in the case of preterition. 21 Better
stated yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited heirs
have been illegally deprived.
Notes:
Ma’am Tiu: The issue on preterition would determine
whether the will is valid or not. So, you’re dealing with
intrinsic validity. And if the will is intrinsically void, what
is the point of ruling on it’s extrinsic validity? It’s a waste
of time. If you’re going to rule on the extrinsic validity,
and yet at the end of it all, the will is intrinsically void,
then nothing will be gained. They will go back to square
one. So, this is an exception: if on its face, the will is
intrinsically void.
Now, there is a peculiar section in Nuguid that talks
about the difference of preterition and ineffective
disinheritance, what are these distinctions?
Preterition consists in the omission in the testator’s will
of the forced heirs or any one of them, either because
they are not mentioned therein, or, though mentioned,
they are neither instituted as heirs nor are expressly
disinherited. Disinheritance, in turn, is a testamentary
disposition depriving any compulsory heir of his share in
the legitime for a cause authorized by law. When
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preterition exists, the institution of heirs is annulled.
Ineffective disinheritance, on the other hand, shall also
annul the institution of heirs insofar as it may prejudice
the person disinherited.
3. Balanay v Martinez
G.R. No. L-39247 June 27, 1975
In the Matter of the Petition to Approve the Will of
Leodegaria Julian. FELIX BALANAY, JR., petitioner,
vs.HON. ANTONIO M. MARTINEZ, Judge of the Court of
First Instance of Davao, Branch VI; AVELINA B.
ANTONIO and DELIA B. LANABAN, respondents.
ISSUE:
WON the probate Court erred in passing upon the
intrinsic validity of the will before ruling on its
allowance or formal validity . NO
HELD:
The trial court acted correctly in passing upon the will's
intrinsic validity even before its formal validity had been
established. The probate of a will might become an idle
ceremony if on its face it appears to be intrinsically
void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even before
it is probated, the court should meet the issue .
Atty. Tiu: Initially, there was the issue of preterition of
the husband here, although a husband cannot be
preterited. That was one of the grounds. Plus the
peculiar nature of the testamentary provisions wherein
there was a prohibition to partition the properties
during the lifetime of the husband, as well as the
payment of the legitime of children from the fruits of the
property. So these are the questions that have been
raised which point to the validity of the testamentary
provisions of the will.
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Now, after the intrinsic validity of the will has been
examined, was the will valid?
Yes, it was valid.
Atty. Tiu: So, only if the defect in the “will” will
invalidate the entire will can the court declare it invalid
even at the probate proceedings, and even if it’s
supposed to limit itself to extrinsic validity.
But if the effect of the will does not result to intestacy,
the court should proceed to determine the extrinsic
validity of the will, because the will is not invalidated in
its entirety. Because the probate court refused to
proceed with the examination of extrinsic validity, the
Supreme court said, that’s where the error lies. There
should have been a determination of the extrinsic
validity, given that the only objectionable provision of
the will does not result to intestacy. Therefore, you
proceed with the determination of the extrinsic validity
of the will. Kasi nauna e, baligtad e. Dapat mauna ang
extrinsic validity bago ang intrinsic validity. But in this
case, because of the issues raised, inuna nila ang
intrinsic validity. Now, since the defect of the will did not
result to intestacy, balik kayo sa step 1: determine now
the extrinsic validity. That was in Balanay.
4. v CA
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE
COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO
ANG, CARMELITA JUGO,respondents.
FACTS:
Martin Jugo died with a will. In his will, he instituted
Sofia Nepomuceno (mistress) as his sole executor. He
also acknowledged in his will his marriage to Gomez and
the existence of two legitimate children. Sofia filed a
petition for probate. Gomez and her children filed an
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opposition alleging inter alia that the execution of the
Will was procured by undue and improper influence.
The lower court denied the probate of the Will on the
ground that as the testator admitted in his Will to
cohabiting with the petitioner from December 1952
until his death on July 16, 1974, the Will's admission to
probate will be an Idle exercise because on the face of
the Will, the invalidity of its intrinsic provisions is
evident.
ISSUE: WON the lower court was correct in passing
upon intrinsic validity of the will? YES
HELD: The general rule is that in probate proceedings,
the court's area of inquiry is limited to an examination
and resolution of the extrinsic validity of the Will. The
rule, however, is not inflexible and absolute. Given
exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do
and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial
court, the testator instituted the petitioner as universal
heir and completely preterited her surviving forced
heirs. A will of this nature, no matter how valid it may
appear extrinsically, would be null and void. Separate or
latter proceedings to determine the intrinsic validity of
the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will,
the Court in Balanay .Jr. v. Martinez (64 SCRA 452)
passed upon the validity of its intrinsic provisions
invoking "practical considerations"
We see no useful purpose that would be served if we
remand the nullified provision to the proper court in a
separate action for that purpose simply because, in the
probate of a will, the court does not ordinarily look into
the intrinsic validity of its provisions.
 Case Digest for Special Proceedings
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the prohibition in Article 739 of the Civil Code is against
the making of a donation between persons who are
living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give
even assuming that the recipient may receive. The very
wordings of the Will invalidate the legacy because the
testator admitted he was disposing the properties to a
person with whom he had been living in concubinage.
Subject of Probate
1. Palaganas v Palaganas
GR 169144, January 26, 2011
Does the probate proceeding cover wills executed
abroad ? YES
Will the will executed abroad require the prior probate
of that will abroad before it can be probated here? NO
FACTS:
Ruperta Palaganas, a Filipino who became a naturalized
US citizen, died on Nov 8, 2001. She had designated her
brother Sergio as the executor for her will. Her will was
executed in California.
Ernesto (another brother of Ruperta) filed a petition for
the probate of Ruperta’s will. However, petitioners
Manuel and Benjamin, nephews of Ruperta, opposed
the petition on the ground that Ruperta’s will should
not be probated in the Philippines but in the US where
she executed it.
ISSUE: WON a will executed by a foreigner abroad may
be probated in the Philippines although it has not been
previously probated and allowed in the country where it
was executed YES
HELD:
A foreign will can be given legal effects in our
jurisdiction
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1. Article 816 of the Civil Code states that the will
of an alien who is abroad produces effect in the
Philippines if made in accordance with the
formalities prescribed by the law of the place
where he resides, or according to the
formalities observed in his country.
2. Section 1, Rule 73 of the 1997 Rules of Civil
Procedure provides that if the decedent is an
inhabitant of a foreign country, the RTC of the
province where he has an estate may take
cognizance of the settlement of such estate.
The rules do not require proof that the foreign will has
already been allowed and probated in the country of
its execution.
Our rules require merely that the petition for the
allowance of a will must show, so far as known to the
petitioner: (a) the jurisdictional facts; (b) the names,
ages, and residences of the heirs, legatees, and devisees
of the testator or decedent; (c) the probable value and
character of the property of the estate; (d) the name of
the person for whom letters are prayed; and (e) if the
will has not been delivered to the court, the name of
the person having custody of it. Jurisdictional facts
refer to the fact of death of the decedent, his residence
at the time of his death in the province where the
probate court is sitting, or if he is an inhabitant of a
foreign country, the estate he left in such province.
Reprobate does not apply in this case
Reprobate is specifically governed by Rule 77 of the
Rules of Court. Contrary to petitioners’ stance, since
this latter rule applies only to reprobate of a will, it
cannot be made to apply to the present case. In
reprobate, the local court acknowledges as binding the
findings of the foreign probate court provided its
jurisdiction over the matter can be established.
Petitioners’ stand is fraught with impracticality
 Case Digest for Special Proceedings
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If the instituted heirs do not have the means to go
abroad for the probate of the will, it is as good as
depriving them outright of their inheritance, since our
law requires that no will shall pass either real or
personal property unless the will has been proved and
allowed by the proper court.
2. Seangio v Reyes
G.R. Nos. 140371-72, November 27, 2006
Can a will containing merely a disinheritance be
probated? YES
FACTS:
The controversy involves a document denominated as
Kasulatan sa Pag-Alis ng Mana executed by the late
Segundo Seangio . In the said document, Alfredo
Seangio , decedent’s son, was disinherited ; no other
dispositions were found except the disinheritance.
Thus, Alfredo contends that said document purporting
to be the holographic will of Segundo does not contain
any disposition of the estate of the deceased and thus
does not meet the definition of a will under Article 783
of the Civil Code.
ISSUE: WON the Kasulatan sa Pag-Alis ng Mana may be
the subject of probate.
HELD:
A document containing only a disinheritance is still a
will and is thus subject to probate
Segundo’s document, although it may initially come
across as a mere disinheritance instrument, conforms to
the formalities of a holographic will prescribed by law. It
is written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causa can be clearly
deduced from the terms of the instrument, and while it
does not make an affirmative disposition of the latter’s
property, the disinheritance of Alfredo, nonetheless, is
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an act of disposition in itself. In other words, the
disinheritance results in the disposition of the property
of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.
Moreover, it is a fundamental principle that the intent
or the will of the testator, expressed in the form and
within the limits prescribed by law, must be recognized
as the supreme law in succession. All rules of
construction are designed to ascertain and give effect to
that intention. It is only when the intention of the
testator is contrary to law, morals, or public policy that
it cannot be given effect.
Holographic wills, therefore, being usually prepared by
one who is not learned in the law, as illustrated in the
present case, should be construed more liberally than
the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the
instrument and the intention of the testator. In this
regard, the Court is convinced that the document, even
if captioned as Kasulatan ng Pag-Aalis ng Mana, was
intended by Segundo to be his last testamentary act
and was executed by him in accordance with law in the
form of a holographic will. Unless the will is probated,
the disinheritance cannot be given effect.
Effect of Probate
1. Galanosa v Arcangel
GR L-29300, June 21, 1978
FACTS:
Florentino Hitosis executed a will on June 19, 1938. He
died on May 26, 1939. On June 24, 1939, a petition for
the probate of his will was filed in CFI Sorsogon.
Opposition to the probate of the will was registered by
the testator's legal heirs, namely, his surviving brother,
Leon, his nephews and nieces. The CFI Judge admitted
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the will to probate and appointed Gallanosa as
executor.
The testamentary heirs later submitted a project of
partition covering 61 parcels of land, which was
approved by the judge. In 1952, the heirs of Florentino’s
deceased brothers and sisters instituted an action for
the recovery of the parcels of land. Gallanosa moved to
dismiss on the ground of bar by prior judgment in the
probate proceeding. Judge dismissed the complaint on
the ground of res judicata.
28 years after the probate of the will, plaintiffs filed
another action in the same court for the annulment of
the will of Hitosis and for the recovery of the 61 parcels
of land. They alleged that the Gallanosa spouses,
through fraud trial deceit, caused the execution trial
simulation of the document purporting to be the last
will trial testament of Florentino Hitosis.
ISSUE: WON a will that has passed probate can be
annulled NO
HELD:
No annulment of will
Our procedural law does not sanction an action for the
"annulment" of a will. In order that a will may take
effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding. The probate of the
will is mandatory. The 1939 decree of probate is
conclusive as to the due execution or formal validity of
the will.
Testator of sound mind, no fraud: these cannot be
questioned in subsequent proceeding
That means that the testator was of sound trial
disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or
undue influence; that the will was signed by him in the
presence of the required number of witnesses, and that
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the will is genuine trial is not a forgery. Accordingly,
these facts cannot again be questioned in a subsequent
proceeding, not even in a criminal action for the forgery
of the will.
After the finality of the allowance of a will, the issue as
to the voluntariness of its execution cannot be raised
anymore.
Atty Tiu: Why is it that there is no such animal as
“ANNULMENT OF PROBATED WILL”? The explanation is
very simple. When you say annulment, what is the basic
ground for annulling a document? It’s basically vitiated
consent. Now, if a will has passed probate, there is now
a conclusive finding as to the voluntariness of the
execution of the will. Necessarily, it being conclusive, it
follows that at the time of the making of the will, the
testator was not suffering from any vitiated consent. So,
there is no such remedy as annulment of a probated will
because Sec 1 of Rule 75 says that, “a will that has been
probated is conclusive as to its due execution.”
2. Mang-oy v CA
GR L-27421, September 12, 1986
Is there an exception to the rule that: unless a will is
probated it cannot be enforced? YES
FACTS:
On September 4, 1937, Old Man Tumpao executed a
last will and testament. The contents of this document
were read to the beneficiaries named in the will. To
implement the document, the beneficiaries executed an
agreement on September 7, 1937. 2 days later, Old Man
Tumpao died. The parties remained in possession of the
lots assigned to them. But things changed in 1960, 23
years later.
On November 4, 1960, respondents executed an
extrajudicial partition in which they divided the
property of Old Man Tumpao among the 3 of them
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only, to the exclusion of the other persons. A new title
was then issued in favor of the 3. The title is now being
questioned by the petitioners Mang-oy et al. RTC ruled
in their favor but CA reversed. CA said that the will was
null and void because it had not been probated.
ISSUE: WON the will may be sustained YES
HELD:
General rule: a will must be probated
We sustain the ruling-made both by the trial court and
the Court of Appeals - that the will, not having been
probated as required by law, was inoperative as such.
The settled principle, as announced in a long line of
decisions in accordance with the Rules of Court, is that
no will shall pass either real or personal property unless
it is proved or allowed in court.
Document may be sustained; exception lies in the
Spanish Civil Code
We find, however, that the document may be sustained
on the basis of Article 1056 of the Civil Code of 1899,
which was in force at the time the said document was
executed by Old Man Tumpao in 1937.
Art. 1056. If the testator should make a partition of his
properties by an act inter vivos, or by win, such partition
shall stand in so far as it does not prejudice the legitime
of the forced heirs.
As the trial court put it: The will alone would be
inoperative for the simple reason that it was not
probated, However, when the persons who were
named therein as heirs and beneficiaries voluntarily
agreed in writing to abide by its terms probably to save
the expenses of probate. and furthermore, carried out
its terms after the death of the testator until now, then
it must be held to be binding between them.
Jurisdiction of Probate Court (Rule 76, Sec. 1)
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RULE 76
Allowance or Disallowance of Will
Section 1. Who may petition for the allowance of will. —
Any executor, devisee, or legatee named in a will, or
any other person interested in the estate, may, at any
time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition
the court for the allowance of his will.
Section 2. Contents of petition. — A petition for the
allowance of a will must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs,
legatees, and devisees of the testator or decedent;
(c) The probable value and character of the property of
the estate;
(d) The name of the person for whom letters are
prayed;
(e) If the will has not been delivered to the court, the
name of the person having custody of it.
But no defect in the petition shall render void the
allowance of the will, or the issuance of letters
testamentary or of administration with the will
annexed.
Section 3. Court to appoint time for proving will. Notice
thereof to be published. — When a will is delivered to,
or a petition for the allowance of a will is filed in, the
court having jurisdiction, such court shall fix a time and
place for proving the will when all concerned may
appear to contest the allowance thereof, and shall
cause notice of such time and place to be published
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three (3) weeks successively, previous to the time
appointed, in a newspaper of general circulation in the
province.
But no newspaper publication shall be made where the
petition for probate has been filed by the
testatorhimself.
Section 4. Heirs, devisees, legatees, and executors to be
notified by mail or personally. — The court shall also
cause copies of the notice of the time and place fixed
for proving the will to be addressed to the designated
or other known heirs, legatees, and devisees of the
testator resident in the Philippines at their places of
residence, and deposited in the post office with the
postage thereon prepaid at least twenty (20) days
before the hearing, if such places of residence be
known. A copy of the notice must in like manner be
mailed to the person named as executor, if he be not
the petitioner; also, to any person named as coexecutor
not petitioning, if their places of residence be known.
Personal service of copies of the notice at lest (10) days
before the day of hearing shall be equivalent to mailing.
If the testator asks for the allowance of his own will,
notice shall be sent only to his compulsory heirs.
Section 5. Proof at hearing. What sufficient in absence
of contest. — At the hearing compliance with the
provisions of the last two preceding sections must be
shown before the introduction of testimony in support
of the will. All such testimony shall be taken under oath
and reduced to writing. It no person appears to contest
the allowance of the will, the court may grant allowance
thereof on the testimony of one of the subscribing
witnesses only, if such witness testify that the will was
executed as is required by law.
In the case of a holographic will, it shall be necessary
that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the
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testator. In the absence of any such competent witness,
and if the court deem it necessary, expert testimony
may be resorted to.
Section 6. Proof of lost or destroyed will. Certificate
thereupon. — No will shall be proved as a lost or
destroyed will unless the execution and validity of the
same be established, and the will is proved to have
been in existence at the time of the death of the
testator, or is shown to have been fraudulently or
accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are
clearly and distinctly proved by at least two (2) credible
witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the
judge, under the seal of the court, and the certificate
must be filed and recorded as other wills are filed and
recorded.
Section 7. Proof when witnesses do not reside in
province. — If it appears at the time fixed for the
hearing that none of the subscribing witnesses resides
in the province, but that the deposition of one or more
of them can be taken elsewhere, the court may, on
motion, direct it to be taken, and may authorize a
photographic copy of the will to be made and to be
presented to the witness on his examination, who may
be asked the same questions with respect to it, and to
the handwriting of the testator and others, as would be
pertinent and competent if the original will were
present.
Section 8. Proof when witnesses dead or insane or do
not reside in the Philippines. — If the appears at the
time fixed for the hearing that the subscribing witnesses
are dead or insane, or that
none of them resides in the Philippines, the court may
admit the testimony of other witnesses to prove the
sanity of the testator, and the due execution of the will;
and as evidence of the execution of the will, it may
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
admit proof of the handwriting of the testator and of
the subscribing witnesses, or of any of them.
Section 9. Grounds for disallowing will. — The will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of
fear, or threats;
(d) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary, or of some
other person for his benefit;
(e) If the signature of the testator was procured by
fraud or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature
thereto.
Section 10. Contestant to file grounds of contest. —
Anyone appearing to contest the will must state in
writing his grounds for opposing its allowance, and
serve a copy thereof on the petitioner and other parties
interested in the estate.
Section 11. Subscribing witnesses produced or
accounted for where will contested. — If the will is
contested, all the subscribing witnesses, and the notary
in the case of wills executed under the Civil Code of the
Philippines, if present in the Philippines and not insane,
must be produced and examined, and the death,
absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of such
witnesses are present in the Philippines but outside the
province where the will has been filed, their deposition
must be taken. If any or all of them testify against the
due execution of the will, or do not remember having
attested to it, or are otherwise of doubtful credibility,
the will may nevertheless, be allowed if the court is
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satisfied from the testimony of other witnesses and
from all the evidence presented that the will was
executed and attested in the manner required by law.
If a holographic will is contested, the same shall be
allowed if at least three (3) witnesses who know the
handwriting of the testator explicitly declare that the
will and the signature are in the handwriting of the
testator; in the absence of any competent witnesses,
and if the court deem it necessary, expert testimony
may be resorted to.
Section 12. Proof where testator petitions for allowance
of holographic will. — Where the testator himself
petitions for the probate of his holographic will and no
contest is filed, the fact that the affirms that the
holographic will and the signature are in his own
handwriting, shall be sufficient evidence of the
genuineness and due execution thereof. If the
holographic will is contested, the burden of disproving
the genuineness and due execution thereof shall be on
the contestant. The testator to rebut the evidence for
the contestant.
Section 13. Certificate of allowance attached to prove
will. To be recorded in the Office of Register of Deeds. —
If the court is satisfied, upon proof taken and filed, that
the will was duly executed, and that the testator at the
time of its execution was of sound and disposing mind,
and not acting under duress, menace, and undue
influence, or fraud, a certificate of its allowance, signed
by the judge, and attested by the seal of the court shall
be attached to the will and the will and certificate filed
and recorded by the clerk. Attested copies of the will
devising real estate and of certificate of allowance
thereof, shall be recorded in the register of deeds of the
province in which the lands lie.
1. Rodriguez v De Borja
G.R. No. L-21993, June 21, 1966
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Which Court will have jurisdiction over the proceeding if
the will is submitted in one venue and a petition was
filed in another venue? The Court where the will was
first delivered
FACTS:
The will of decedent Fr. Celestino Rodriguez was
delivered by Apolonia Pangilinan and Adelaida Jacalan
on March 4, 1963 to the Clerk of Court of Bulacan. (first
delivery; no petition yet)
On March 12, 1963 at 8 AM, Angela and Maria
Rodriguez filed before the Court of First Instance of
Rizal a petition for the settlement of the intestate
estate of Fr. Rodriguez alleging, among other things,
that Fr. Rodriguez was a resident of Parañaque, Rizal,
and died without leaving a will and praying that Maria
Rodriguez be appointed as Special Administratrix of the
estate;
On March 12, 1963 at 11 AM Apolonia Pangilinan and
Adelaida Jacalan filed a petition in the Court of Bulacan
for the probation of the will delivered by them on
March 4, 1963.
The movants contend that since the intestate
proceedings in the Court of First Instance of Rizal w
Angela and Maria contend that the Court of Bulacan did
not acquire jurisdiction over the proceeding since the
petition was first filed in the Court of Rizal .
Panglinan and Jacalan take the stand that the Court of
First Instance of Bulacan acquired jurisdiction over the
case upon delivery by them of the will to the Clerk of
Court on March 4, 1963, and that the case in this Court
therefore has precedence over the case filed in Rizal on
March 12, 1963.
ISSUE: Which Court acquired jurisdiction first ?
HELD:
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Court where will delivered first acquires jurisdiction ;
Court can act upon the will even if no petition is yet
filed
The jurisdiction of the Court of First Instance of Bulacan
became vested upon the delivery thereto of the will of
the late Father Rodriguez on March 4, 1963, even if no
petition for its allowance was filed until later, because
upon the will being deposited the court could, motu
proprio, have taken steps to fix the time and place for
proving the will, and issued the corresponding notices
conformably to what is prescribed by section 3, Rule 76,
of the Revised Rules of Court (Section 3, Rule 77, of the
old Rules):
SEC. 3. Court to appoint time for proving will. Notice
thereof to be published. — When a will is delivered to,
or a petition for the allowance of a will is filed in, the
Court having jurisdiction, such Court shall fix a time and
place for proving the will when all concerned may
appear to contest the allowance thereof, and shall
cause notice of such time and place to be published
three (3) weeks successively, previous to the time
appointed, in a newspaper of general circulation in the
province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator
himself.
The use of the disjunctive in the words "when a will is
delivered to OR a petition for the allowance of a will is
filed" plainly indicates that the court may act upon the
mere deposit therein of a decedent's testament, even if
no petition for its allowance is as yet filed. Where the
petition for probate is made after the deposit of the
will, the petition is deemed to relate back to the time
when the will was delivered. Since the testament of Fr.
Rodriguez was submitted and delivered to the Court of
Bulacan on March 4, while petitioners initiated intestate
proceedings in the Court of First Instance of Rizal only
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
on March 12, eight days later, the precedence and
exclusive jurisdiction of the Bulacan court is
incontestable.
Testate takes precedence over Intestate proceedings
The other reason is that, in our system of civil law,
intestate succession is only subsidiary or subordinate to
the testate, since intestacy only takes place in the
absence of a valid operative will. Says Article 960 of the
Civil Code of the Philippines:
ART. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or
one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or
dispose of all the property belonging to the testator. In
such case, legal succession shall take place only with
respect to the property in which the testator has not
disposed;
(3) If the suspensive condition attached to the
institution of heir does not happen or is not fulfilled, or
if the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no right of
accretion takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.
Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil.
307, "only after final decision as to the nullity of testate
succession could an intestate succession be instituted in
the form of pre-established action". The institution of
intestacy proceedings in Rizal may not thus proceed
while the probate of the purported will of Father
Rodriguez is pending.
We rule that the Bulacan Court of First Instance was
entitled to priority in the settlement of the estate in
question, and that in refusing to dismiss the probate
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proceedings, said court did not commit any abuse of
discretion.
Principal Testate Proceeding
Who may File Petition (Rule 76 , Sec. 1)
1. Maloles v Philipps
GR 129505, January 31, 2000
FACTS:
Dr. Arturo de Santos filed a petition for probate of his
will (Makati RTC Branch 61), where he declared the
Arturo de Santos Foundation Inc as the sole legatee and
devisee. RTC Makati Judge Gorospe issued an order
allowing the will on February 16, 1996. Shortly after the
probate, Dr. De Santos died on February 26, 1996.
Petitioner Octavio Maloles II filed a motion for
intervention claiming that, as the only child of testator’s
sister, he was the sole full-blooded nephew and nearest
kin of the testator. He also alleged that he was a
creditor of the testator. He thus prayed for the
reconsideration of the order allowing the will and the
issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los
Reyes Phillips, the designated executrix of the will, filed
a motion for the issuance of letters testamentary with
Branch 61. She later moved to withdraw the motion,
which was granted.
Pacita, who earlier withdrew her motion for the
issuance of letters testamentary in Branch 61, refiled a
petition for the same purpose with the Regional Trial
Court, Makati, which was docketed as Sp. Proc. No. M-
4343 and assigned to Branch 65. Judge Abad Santos of
Branch 65 then issued an order appointing her as
special administrator of the estate.
On July 29, 1996, petitioner sought to intervene in Sp.
Proc. No. M-4343 and to set aside the appointment of
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
private respondent as special administrator. He
reiterated that he was the sole and full blooded nephew
and nearest of kin of the testator; that he came to know
of the existence of Sp. Proc. No. M-4343 only by
accident; that the probate proceedings in Sp. Proc. No.
M-4223 before Branch 61 of the same court was still
pending.
On August 28, 1996, Judge Abad Santos ordered the
transfer of Sp. Proc. No. M-4343 to Branch 61, on the
ground that "[it] is related to the case before Judge
Gorospe of RTC Branch 61 . . ."
But Judge Gorospe returned the said records to Branch
65 on the ground that there was already a pending case
involving the said estate in that court. Judge Abad
Santos eventually took cognizance of the case to
expedite the proceedings (but he previously said that it
would have been improper for Branch 65 to resolve the
petition considering that the probate proceedings were
commenced with Branch 61).
ISSUE: WON Branch 65 could not lawfully act upon
private respondent’s petition for issuance of letters
testamentary NO
HELD:
Testator may file petition for probate of his will
Ordinarily, probate proceedings are instituted only after
the death of the testator, so much so that, after
approving and allowing the will, the court proceeds to
issue letters testamentary and settle the estate of the
testator.
However, Art. 838 of the Civil Code authorizes the filing
of a petition for probate of the will filed by the testator
himself. Art. 838. Xxx The testator himself may, during
his lifetime, petition the court having jurisdiction for the
allowance of his will. xxx
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Rule 76, §1 likewise provides: Sec. 1 Who may petition
for the allowance of will. – xxx The testator himself may,
during his lifetime, petition in the court for the
allowance of his will.
Rationale for allowing the probate of wills during the
lifetime of testator
It is far easier for the courts to determine the mental
condition of a testator during his lifetime than after his
death. Fraud, intimidation and undue influence are
minimized. Furthermore, if a will does not comply with
the requirements prescribed by law, the same may be
corrected at once. The probate during the testator’s life,
therefore, will lessen the number of contest upon wills.
Once a will is probated during the lifetime of the
testator, the only questions that may remain for the
courts to decide after the testator’s death will refer to
the intrinsic validity of the testamentary dispositions.
Branch 61 could only issue certificate of allowance of
will
Thus, after the allowance of the will of Dr. De Santos on
February 16, 1996, there was nothing else for Branch 61
to do except to issue a certificate of allowance of the
will pursuant to Rule 73, §12 of the Rules of Court.
There is, therefore, no basis for the ruling of Judge Abad
Santos of Branch 65 of RTC-Makati that – “Branch 61 of
the Regional Trial Court of Makati having begun the
probate proceedings of the estate of the deceased, it
continues and shall continue to exercise said jurisdiction
to the exclusion of all others. It should be noted that
probate proceedings do not cease upon the allowance
or disallowance of a will but continues up to such time
that the entire estate of the testator had been
partitioned and distributed.”
Other branches not barred from taking cognizance of
settlement of estate after testator’s death
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
It is noteworthy that, although Rule 73, §1 applies
insofar as the venue of the petition for probate of the
will of Dr. De Santos is concerned, it does not bar other
branches of the same court from taking cognizance of
the settlement of the estate of the testator after his
death. It is noteworthy that, although Rule 73, §1
applies insofar as the venue of the petition for probate
of the will of Dr. De Santos is concerned, it does not bar
other branches of the same court from taking
cognizance of the settlement of the estate of the
testator after his death. As held in the leading case of
Bacalso v. Ramolote: The various branches of the Court
of First Instance of Cebu under the Fourteenth Judicial
District, are a coordinate and co-equal courts, and the
totality of which is only one Court of First Instance. The
jurisdiction is vested in the court, not in the judges. And
when a case is filed in one branch, jurisdiction over the
case does not attach to the branch or judge alone, to
the exclusion of the other branches.
Necessarily, therefore, Branch 65 of the RTC of Makati
City has jurisdiction over Sp. Proc. No. M-4343.
2. Nittscher v Nittscher
GR 160530, November 20, 2007
PETITION FOR PROBATE AND
FACTS: ISSUANCE OF LETTERS
TESTAMENTARY
On January 31, 1990, Dr. Werner Nittscher filed with the
RTC of Makati a petition for the probate of his
holographic will and for the issuance of letters
testamentary to respondent Atty. Nogales. RTC issued
an order allowing the said will.
Dr. Nittscher died on September 26, 1994. Atty. Nogales
then filed a petition for letters testamentary for the
administration of Nittscher’s estate. Petitioner Cynthia
Nittscher, the surviving spouse, moved for the dismissal
of said petition. She claims that the properties listed for
disposition in her husband’s will actually belong to her.
She insists she was denied due process of law because
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she did not receive by personal service the notices of
the proceedings.
ISSUE: WON Dr. Nittscher may ask for the allowance of
his own will YES
HELD:
Regarding the issues, we note that Dr. Nittscher asked
for the allowance of his own will. In this connection,
Section 4, Rule 76 of the Rules of Court states:
SEC. 4. Heirs, devisees, legatees, and executors to
be notified by mail or personally. – …
If the testator asks for the allowance of his own
will, notice shall be sent only to his compulsory heirs.
Petitioner’s allegation that she was denied due process
is without basis
In this case, records show that petitioner, with whom
Dr. Nittscher had no child, and Dr. Nittscher’s children
from his previous marriage were all duly notified, by
registered mail, of the probate proceedings. Petitioner
even appeared in court to oppose respondent’s petition
for the issuance of letters testamentary and she also
filed a motion to dismiss the said petition. She likewise
filed a motion for reconsideration of the issuance of the
letters testamentary and of the denial of her motion to
dismiss. We are convinced petitioner was accorded
every opportunity to defend her cause.
Claim of title to properties in an ordinary action; not
before probate court
As a final word, petitioner should realize that the
allowance of her husband’s will is conclusive only as to
its due execution. The authority of the probate court is
limited to ascertaining whether the testator, being of
sound mind, freely executed the will in accordance with
the formalities prescribed by law. Thus, petitioner’s
claim of title to the properties forming part of her
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
husband’s estate should be settled in an ordinary action
before the regular courts.
CONFLICT OF RULINGS BETWEEN MALOLES AND
NITTSCHER:
In Maloles, a separate petition was filed by the executor
for letters testamentary. Meaning, the petition for
issuance of letters testamentary is separate and not a
continuation of the probate proceedings.
In Nittscher, the petitioner questioned the petition for
issuance of letters testamentary since it lacked a CNFS.
The Court, through Admin Circular 04-94 required a
CNFS for all initiatory pleadings. But the Court said that
the petition for the issuance of letters testamentary is
NOT an initiatory pleading but a mere continuation of
the original petition for probate of will. Hence, the lack
of CNFS was not a ground for the outright dismissal of
the said petition.
Note that in Nittscher, the testator himself filed a
petition for probate of his own will AND for the issuance
of letters testamentary to Atty. Nogales. In Maloles,
testator filed a petition only for the probate of his will.
Delivery of Will (Rule 75, Sec.2-5)
1. Uy Kiao Eng v Nixon Lee
G.R. No. 176831, January 15, 2010
Can Mandamus lie to compel the delivery of will?NO
FACTS:
Nixon Lee filed a petition for mandamus with damages
against his mother,Uy Kiao Eng so that the latter be
compelled to produce the will of their deceased
patriarch and the probate proceedings be instituted. Uy
Kiao Eng denies custody of the said will.
The CA eventually granted the writ hence this petition
by Uy Kiao Eng.
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ISSUE: Is mandamus proper to compel delivery of will?
NO
HELD:
Mandamus may be availed of to compel performance
of a public duty ; Nixon had other remedies available
to compel delivery of will thus mandamus will not lie
The first paragraph of Section 3 of Rule 65 of the Rules
of Court pertinently provides that—
SEC. 3. Petition for mandamus.—When any tribunal,
corporation, board, officer or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done
to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
Mandamus is a command issuing from a court of law of
competent jurisdiction, in the name of the state or the
sovereign, directed to some inferior court, tribunal, or
board, or to some corporation or person requiring the
performance of a particular duty therein specified,
which duty results from the official station of the party
to whom the writ is directed or from operation of law.
This definition recognizes the public character of the
remedy, and clearly excludes the idea that it may be
resorted to for the purpose of enforcing the
performance of duties in which the public has no
interest. The writ is a proper recourse for citizens who
seek to enforce a public right and to compel the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
performance of a public duty, most especially when the
public right involved is mandated by the Constitution.
As the quoted provision instructs, mandamus will lie if
the tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the
law enjoins as a duty resulting from an office, trust or
station.
The writ of mandamus, however, will not issue to
compel an official to do anything which is not his duty
to do or which it is his duty not to do, or to give to the
applicant anything to which he is not entitled by
law. Nor will mandamus issue to enforce a right which
is in substantial dispute or as to which a substantial
doubt exists, although objection raising a mere
technical question will be disregarded if the right is
clear and the case is meritorious. As a
rule, mandamus will not lie in the absence of any of the
following grounds: [a] that the court, officer, board, or
person against whom the action is taken unlawfully
neglected the performance of an act which the law
specifically enjoins as a duty resulting from office, trust,
or station; or [b] that such court, officer, board, or
person has unlawfully excluded petitioner/relator from
the use and enjoyment of a right or office to which he is
entitled. On the part of the relator, it is essential to the
issuance of a writ of mandamus that he should have a
clear legal right to the thing demanded and it must be
the imperative duty of respondent to perform the act
required.
Recognized further in this jurisdiction is the principle
that mandamus cannot be used to enforce contractual
obligations. Generally, mandamus will not lie to enforce
purely private contract rights, and will not lie against an
individual unless some obligation in the nature of a
public or quasi-public duty is imposed. The writ is not
appropriate to enforce a private right against an
individual. The writ of mandamus lies to enforce the
execution of an act, when, otherwise, justice would be
obstructed; and, regularly, issues only in cases relating
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to the public and to the government; hence, it is called
a prerogative writ. To preserve its prerogative
character, mandamus is not used for the redress of
private wrongs, but only in matters relating to the
public.
Moreover, an important principle followed in the
issuance of the writ is that there should be no plain,
speedy and adequate remedy in the ordinary course of
law other than the remedy of mandamus being invoked.
In other words, mandamus can be issued only in cases
where the usual modes of procedure and forms of
remedy are powerless to afford relief. Although
classified as a legal remedy, mandamus is equitable in
its nature and its issuance is generally controlled by
equitable principles. Indeed, the grant of the writ of
mandamus lies in the sound discretion of the court.
Nevertheless, Nixon Lee can still institute probate
proceedings whether he is in possession of the will or
not
In the instant case, the Court, without unnecessarily
ascertaining whether the obligation involved here—the
production of the original holographic will—is in the
nature of a public or a private duty, rules that the
remedy of mandamus cannot be availed of by
respondent Lee because there lies another plain,
speedy and adequate remedy in the ordinary course of
law. Let it be noted that respondent has a photocopy of
the will and that he seeks the production of the original
for purposes of probate. The Rules of Court, however,
does not prevent him from instituting probate
proceedings for the allowance of the will whether the
same is in his possession or not. Rule 76, Section 1
relevantly provides:
Section 1. Who may petition for the allowance of will.—
Any executor, devisee, or legatee named in a will, or
any other person interested in the estate, may, at any
time, after the death of the testator, petition the court
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed.
Another remedy to compel delivery is provided for by
the Rules
An adequate remedy is further provided by Rule 75,
Sections 2 to 5, for the production of the original
holographic will. Thus—
SEC. 2. Custodian of will to deliver.—The person who
has custody of a will shall, within twenty (20) days after
he knows of the death of the testator, deliver the will to
the court having jurisdiction, or to the executor named
in the will.
SEC. 3. Executor to present will and accept or refuse
trust.—A person named as executor in a will shall within
twenty (20) days after he knows of the death of the
testator, or within twenty (20) days after he knows that
he is named executor if he obtained such knowledge
after the death of the testator, present such will to the
court having jurisdiction, unless the will has reached the
court in any other manner, and shall, within such
period, signify to the court in writing his acceptance of
the trust or his refusal to accept it.
SEC. 4. Custodian and executor subject to fine for
neglect.—A person who neglects any of the duties
required in the two last preceding sections without
excuse satisfactory to the court shall be fined not
exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.—A
person having custody of a will after the death of the
testator who neglects without reasonable cause to
deliver the same, when ordered so to do, to the court
having jurisdiction, may be committed to prison and
there kept until he delivers the will.
There being a plain, speedy and adequate remedy in the
ordinary course of law for the production of the subject
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will, the remedy of mandamus cannot be availed of.
Suffice it to state that respondent Lee lacks a cause of
action in his petition. Thus, the Court grants the
demurrer.
Contents of Petition (Rule 76, Sec. 2)
1. Fran v Salas
GR 53546, June 25, 1992
FACTS:
Remedios Vda de Tiosejo executed a last will and
testament. She died on July 10, 1972. On July 15, 1972,
Jesus Fran filed a petition with CFI Cebu for the probate
of testator’s will. Private respondents asked for time to
the petition but did not actually file an opposition to the
probate. Hence, the petition was uncontested.
Evidence submitted: a copy of the original of the will
and its English translation.
ISSUE: WON the original will must be attached for the
court to acquire jurisdiction NO
HELD:
Not necessary that original will is attached
In Santos vs. Castillo and Salazar vs. Court of First
Instance of Laguna, decided six (6) months apart in
1937, this Court already ruled that it is not necessary
that the original of the will be attached to the petition.
In the first, it ruled: "The original of said document [the
will] must be presented or sufficient reasons given to
justify the nonpresentation of said original and the
acceptance of the copy or duplicate thereof." In the
second case, this Court was more emphatic in holding
that: The law is silent as to the specific manner of
bringing the jurisdictional allegations before the court,
but practice and jurisprudence have established that
they should be made in the form of an application and
filed with the original of the will attached thereto. It has
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
been the practice in some courts to permit attachment
of a mere copy of the will to the application, without
prejudice to producing the original thereof at the
hearing or when the court so requires. This precaution
has been adopted by some attorneys to forestall its
disappearance, which has taken place in certain cases.
Annexing of original not jurisdictional requirement
That the annexing of the original will to the petition is
not a jurisdictional requirement is clearly evident in
Section 1, Rule 76 of the Rules of Court which allows the
filing of a petition for probate by the person named
therein regardless of whether or not he is in possession
of the will, or the same is lost or destroyed. The section
reads in full as follows:
Sec. 1. Who may petition for the allowance of will. —
Any executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time
after the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same
be in his possession or not, or is lost or destroyed.
In the instant case, a copy of the original will and its
English translation were attached to the petition as
Annex "A" and Annex "A-1", respectively, and made
integral parts of the same. It is to be presumed that
upon the filing of the petition the Clerk of Court, or his
duly authorized subordinate, examined the petition and
found that the annexes mentioned were in fact
attached thereto. If they were not, the petition cannot
be said to have been properly presented and the Clerk
of Court would not have accepted it for docketing.
Ma’am Tiu: For purposes of filing the petition, you need
not attach the original. But for purposes of presenting it
in evidence, you produce the original.
Notice of Hearing (Rule 76, Sec. 3-4; Rule 77, Sec.2; Rule
79, Sec. 3)
Alvar, Ceballo, Cuabo
3Manresa
2. Alaban v CA
GR 156021, September 23, 2005
Is personal notice a jurisdictional requirement? NO (but
take note of Aranz v Galing)
FACTS:
Private respondent Provido filed a petition for the
probate of the will of the sale Soledad Elevencionado.
Respondent alleged that he was the heir and executor
of Soledad’s will. RTC Iloilo then allowed the probate of
the will and directed the issuance of letters
testamentary to respondent.
4 months later, petitioners filed a motion for the
reopening of the probate proceedings. They also filed
an opposition to the allowance of the will. They claimed
that RTC did not acquire jurisdiction over the petition
due to lack of notice to the other heirs.
ISSUE: WON personal notice to the other heirs is a
jurisdictional requirement NO
HELD:
Probate proceeding is one in rem; publication extends
to all interested persons
Petitioners are mistaken in asserting that they have not
become parties to the probate proceedings. Under the
Rules of Court, any executor, devisee, or legatee named
in a will, or any other person interested in the estate
may, at any time after the death of the testator,
petition the court having jurisdiction to have the will
allowed. Notice of the time and place for proving the
will must be published for three (3) consecutive weeks,
in a newspaper of general circulation in the province, as
well as furnished to the designated or other known
heirs, legatees, and devisees of the testator. Thus, it has
been held that a proceeding for the probate of a will is
one in rem, such that with the corresponding
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
publication of the petition the court's jurisdiction
extends to all persons interested in said will or in the
settlement of the estate of the decedent.
Publication vests the court with jurisdiction
Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all who
might be minded to make an objection of any sort
against the right sought to be established. It is the
publication of such notice that brings in the whole
world as a party in the case and vests the court with
jurisdiction to hear and decide it. Thus, even though
petitioners were not mentioned in the petition for
probate, they eventually became parties thereto as a
consequence of the publication of the notice of hearing.
Petition for annulment of probate must fail
Annulment is based on only two grounds: extrinsic
fraud, and lack of jurisdiction or denial of due process.
An action to annul a final judgment on the ground of
fraud lies only if the fraud is extrinsic or collateral in
character. Fraud is regarded as extrinsic where it
prevents a party from having a trial or from presenting
his entire case to the court, or where it operates upon
matters pertaining not to the judgment itself but to the
manner in which it is procured. The overriding
consideration when extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing litigant prevented a
party from having his day in court.
Non-inclusion of petitioners’ names in the petition and
the alleged failure to personally notify them of the
proceedings do not constitute extrinsic fraud
Petitioners, as nephews and nieces of the decedent, are
neither compulsory nor testate heirs who are entitled
to be notified of the probate proceedings under the
Rules. Besides, assuming arguendo that petitioners are
entitled to be so notified, the purported infirmity is
cured by the publication of the notice. After all,
Alvar, Ceballo, Cuabo
3Manresa
personal notice upon the heirs is a matter of procedural
convenience and not a jurisdictional requisite. The non-
inclusion of petitioners’ names in the petition and the
alleged failure to personally notify them of the
proceedings do not constitute extrinsic fraud.
Petitioners were not denied their day in court, as they
were not prevented from participating in the
proceedings and presenting their case before the
probate court.
3. Aranz v Galing
G.R. No. 77047, May 28, 1988
Note: This case is an exception to the rule set forth in
Alaban v CA . The two cases can be reconciled in this
wise: if the name and address of heirs, legatees, and
devisees are known they shall be personally notified. If
not, individual notice is not necessary as long as the lack
of knowledge is in good faith on the part of petitioning
party.
FACTS:
Joaquin R-Infante filed a petition for the probate of the
will of the Montserrat R-Infante y G-Pola. In the
petition, the devisees and legatees were named along
with their corresponding addresses.T
The probate court issued an order setting the petition
for hearing on 5 May 1986 at 8:30 o'clock in the
morning. Said order was published in the "Nueva Era" A
newspaper of general circulation in Metro Manila once
a week for three (3) consecutive weeks.
There was no opposition thus an order to receive
evidence ex parte was issued. Joaquin was appointed
executor.
The named devisees and legatees filed a motion for
reconsideration alleging that, as named legatees, no
notices were sent to them as required by Sec. 4, Rule 76
of the Rules of Court and they prayed that they be given
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
a period of ten (10) days within which to file their
opposition to the probate of the will.
CA held that the individual notice is merely for
procedural convenience.
ISSUE: WON personal notice of the probate proceedings
to the named legatees and devisees is a jurisdictional
requirement. YES
HELD:
The standing rule is that ; if the name and address of
heirs, legatees, and devisees are known they shall be
personally notified. If not, individual notice is not
necessary.
Sec. 4, Rule 76 of the Rules reads:
SEC. 4. Heirs, devisees, legatees, and executors to be
notified by mail or personally. — The court shall also
cause copies of the notice of the time and place fixed for
proving the will to be addressed to the designated or
other known heirs, legatees, and devisees of the testator
resident in the Philippines at their places of residence,
and deposited in the post office with the postage
thereon prepaid at least twenty (20) days before the
hearing, if such places of residence be known. A copy of
the notice must in like manner be mailed to the person
named as executor, if he be not, the petitioner; also, to
any person named as co-executor not petitioning, if
their places of residence be known. Personal service of
copies of the notice at least ten (10) days before the day
of hearing shall be equivalent to mailing.
It is clear from the aforecited rule that notice of the
time and place of the hearing for the allowance of a will
shall be forwarded to the designated or other known
heirs, legatees, and devisees residing in the Philippines
at their places of residence, if such places of residence
be known. There is no question that the residences of
herein petitioners legatees and devisees were known to
Alvar, Ceballo, Cuabo
3Manresa
the probate court. The petition for the allowance of the
wig itself indicated the names and addresses of the
legatees and devisees of the testator. But despite such
knowledge, the probate court did not cause copies of
the notice to be sent to petitioners. The requirement of
the law for the allowance of the will was not satisfied by
mere publication of the notice of hearing for three (3)
weeks in a newspaper of general circulation in the
province.
The case of Joson vs. Nable cited by the Court of
Appeals in its assailed decision to support its theory is
not applicable in the present case. In that case,
petitioners Purificacion Joson and Erotica Joson failed to
contest the will of Tomas Joson because they had not
been notified of the hearing of the petition for
probate.T he the petition included the residence of
petitioners as Dagupan Street No. 83, Manila,
petitioners claimed that their residence was not
Dagupan Street No. 83, Manila. There the Court said:
Petitioners maintain that no notice was received by
them partly because their residence was not Dagupan
Street No. 83 as alleged in the petition for probate. If
the allegation of the petition was wrong and the true
residence of petitioners was not known, then notice
upon them individually was not necessary. Under the
provision above quoted, individual notice upon heirs,
legatees and devisees is necessary only when they are
known or when their places of residence are known. In
other instances, such notice is not necessary and the
court may acquire and exercise jurisdiction simply upon
the publication of the notice in a newspaper of general
circulation. ...
In Re: Testate Estate of Suntay, the Court, speaking
thru Mr. Justice Sabino Padilla, said:
... It is a proceedings in rem and for the validity of such
proceedings personal notice or by publication or both to
all interested parties must be made. The interested
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
parties in the case were known to reside in the
Philippines. The evidence shows that no such notice was
received by the interested parties residing in the
Philippines. The proceedings had in the municipal
district court of Amoy, China, may be likened to a
deposition or to a perpetuation of testimony, and even
if it were so it does not measure or come up to the
standard of such proceedings in the Philippines for lack
of notice to all interested parties and the proceedings
were held at the back of such interested parties.
xxx xxx xxx
... In view thereof, the will and the alleged probate
thereof cannot be said to have been done in accordance
with the accepted basic and fundamental concepts and
principles followed in the probate and allowance of
wills. Consequently, the authenticated transcript of
proceedings held in the municipal district court of
Amoy, China, cannot be deemed and accepted as
proceedings leading to the probate or allowance of a
will and, therefore, the will referred to therein cannot
be allowed, filed and recorded by a competent court of
court.
Who may Oppose (Rule 79, Sec. 1)
1. Acain v IAC
G.R. No. 72706, October 27, 1987
CONSTANTINO C. ACAIN, petitioner, vs. HON.
INTERMEDIATE APPELLATE COURT (Third Special Cases
Division), VIRGINIA A. FERNANDEZ and ROSA
DIONGSON, respondents.
Does the preterited heir have the right to oppose the
will? YES
FACTS:
Constantino Acain filed on the RTC, a petition for the
probate of the will of the late NemesioAcain and for the
Alvar, Ceballo, Cuabo
3Manresa
issuance to the same petitioner of letters
testamentaryon the premise that NemesioAcain died
leaving a will in which petitioner and his brothers
Antonio, Flores and Jose and his sisters Anita,
Concepcion, Quirina and Laura were instituted as heirs.
The oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of tile deceased
and the latter's widow Rosa DiongsonVda. de Acain filed
a motion to dismiss on the following grounds for the
petitioner has no legal capacity to institute these
proceedings; (2) he is merely a universal heir and (3) the
widow and the adopted daughter have been
preterited.
ISSUE: WON the legally adopted daughter and the
widow may legally oppose? YES
HELD:
The Legally adopted daughter may oppose since she
was preterited and that she will stand benefited in the
annulment of the institution of the heirs
Legal adoption by the testator has not been questioned
by petitioner. Under Article 39 of P.D. No. 603, known
as the Child and Youth Welfare Code, adoption gives to
the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be
denied that she has totally omitted and preterited in
the will of the testator and that both adopted child and
the widow were deprived of at least their legitime.
Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of
the legally adopted child.
Pretention annuls the institution of an heir and
annulment throws open to intestate succession the
entire The only provisions which do not result in
intestacy are the legacies and devises made in the will
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
for they should stand valid and respected, except
insofar as the legitimes are concerned.
The universal institution of petitioner together with his
brothers and sisters to the entire inheritance of The
effect of annulling the "Institution of heirs will be,
necessarily, the opening of a total intestacy except that
proper legacies and devises must, as already stated
above, be respected.
Since there is preterition, Constantino (brother) has no
legal standing to petition for probate.
2. Maloles II v Philips
GR 129505, January 31, 2000
FACTS:
Dr. Arturo de Santos filed a petition for probate of his
will, where he declared the Arturo de Santos
Foundation Inc as the sole legatee and devisee. RTC
Makati judge issued an order allowing the will. Shortly
after the probate, Dr. De Santos died.
Petitioner Octavio Maloles II filed a motion for
intervention claiming that, as the only child of testator’s
sister, he was the sole full-blooded nephew and nearest
kin of the testator.
ISSUE: May the petitioner (nephew of testator)
intervene and oppose the petition for issuance of
letters testamentary? NO
HELD:
Interested persons may oppose
Rule 79, §1 provides:
Opposition to issuance of letters testamentary.
Simultaneous petition for administration. - Any person
interested in a will may state in writing the grounds why
letters testamentary should not issue to the persons
Alvar, Ceballo, Cuabo
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named therein as executors, or any of them, and the
court, after hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at the same
time, be filed for letters of administration with the will
annexed.
Under this provision, it has been held that an
"interested person" is one who would be benefited by
the estate, such as an heir, or one who has a claim
against the estate, such as a creditor, and whose
interest is material and direct, not merely incidental or
contingent.
Even if petitioner is the nearest next of kin of Dr. De
Santos, he cannot be considered an "heir" of the
testator. It is a fundamental rule of testamentary
succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will.
Nephew not a compulsory heir and does not have the
right to intervene or oppose
Petitioner, as nephew of the testator, is not a
compulsory heir who may have been preterited in the
testator’s will.
Nor does he have any right to intervene in the
settlement proceedings based on his allegation that he
is a creditor of the deceased. Since the testator
instituted or named an executor in his will, it is
incumbent upon the Court to respect the desires of the
testator.
Atty. Tiu: He claimed to be a creditor so why is he not a
interested person still?
He raised the issue of being a creditor as a mere
afterthought
3. Leviste v CA
G.R. No. L-29184, January 30, 1989
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Does a lawyer trying to enforce a contingent fee have a
direct interest in the probate of the will? NO
FACTS:
Atty. Leviste appeared as counsel of Rosa Del Rosario
in a petition for probate of the holographic will of the
late Maxima C. Reselva. Under the will, a piece of real
property was bequeathed to Del Rosario. It was agreed
that Atty. Leviste’s contigent fee would be thirty-five
per cent (35%) of the property that Rosa may receive
upon the probate of the will .
Atty. Leviste was eventually terminated while the
proceeding was ongoing . He filed a motion to intervene
in the probate proceeding but the same was denied.
Nevertheless, he continued to file pleadings for Del
Rosario.
Del Rosario waived her right to the devise in favor of
private respondents but even so the Court disallowed
the will . Atty. Leviste filed a notice of appeal and an
appeal bond. The private respondents filed a motion to
dismiss alleging that Atty. Leviste was not a party in
interest.
ISSUE: WON the appeal was proper. NO
HELD:
Atty. Leviste is not a creditor
Article 1052 of the Civil Code does not apply to this
case. That legal provision protects the creditor of a
repudiating heir. Petitioner is not a creditor of Rosa del
Rosario. The payment of his fees is contingent and
dependent upon the successful probate of the
holographic will. Since the petition for probate was
dismissed by the lower court, the contingency did not
occur. Attorney Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor
is an heir. Rosa del Rosario is not a legal heir of the late
Alvar, Ceballo, Cuabo
3Manresa
Maxima C. Reselva. Upon the dismissal of her petition
for probate of the decedent's will, she lost her right to
inherit any part of the latter's estate. There is nothing
for the petitioner to accept in her name.
This Court had ruled in the case of Recto vs.
Harden, 100 Phil. 1427, that "the contract (for
contingent attorney's fees) neither gives, nor purports
to give, to the appellee (lawyer) any right whatsoever,
personal or real, in and to her (Mrs. Harden's) aforesaid
share in the conjugal partnership. The amount thereof
is simply a basis for thecomputation of said fees."
The Court of Appeals did not err in dismissing the
petition for mandamus, for while it is true that, as
contended by the petitioner, public policy favors the
probate of a will, it does not necessarily follow that
every will that is presented for probate, should be
allowed. The law lays down procedures which should be
observed and requisites that should be satisfied before
a will may be probated. Those procedures and
requirements were not followed in this case resulting in
the disallowance of the will. There being no valid will,
the motion to withdraw the probate petition was
inconsequential.
Petitioner was not a party to the probate proceeding
in the lower court. He had no direct interest in the
probate of the will. His only interest in the estate is an
indirect interest as former counsel for a prospective
heir. In Paras vs. Narciso, 35 Phil. 244, We had
occassion to rule that one who is only indirectly
interested in a will may not interfere in its probate.
Thus:
... the reason for the rule excluding strangers from
contesting the will, is not that thereby the court maybe
prevented from learning facts which would justify or
necessitate a denial of probate, but rather that the
courts and the litigants should not be molested by the
intervention in the proceedings of persons with no
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
interest in the estate which would entitle them to be
heard with relation thereto. (Paras vs. Narciso, 35 Phil.
244, 246.)
Similary, in Morente vs. Firmalino, 40 O.G. 21st Supp. 1,
We held:
We are of the opinion that the lower court did not err in
holding that notice of an attorney's lien did not entitle
the attorney-appellant to subrogate himself in lieu of
his client. It only gives him the right to collect a certain
amount for his services in case his client is awarded a
certain sum by the court.
How to Oppose (Rule 76, Sec. 10)
Proof Required
Lost or Destroyed Will (Rule 76, Sec. 6)
1. Rodelas v Aranza
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant, vs.AMPARO ARANZA, ET
AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
FACTS:
The petition with CFI for the probate of the holographic
will of Ricardo B. Bonilla and the issuance of letters
testamentary in his favour was opposed on the ground
that the alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise it
would produce no effect.
ISSUE: Whether a holographic will which was lost or
cannot be found can be proved by means of a
photostatic copy. YES
HELD:
Alvar, Ceballo, Cuabo
3Manresa
Photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made
with the standard writings of the testator
Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the
court after its due execution has been proved. The
probate may be uncontested or not. If uncontested, at
least one Identifying witness is required and, if no
witness is available, experts may be resorted to. If
contested, at least three Identifying witnesses are
required. However, if the holographic will has been lost
or destroyed and no other copy is available, the will
cannot be probated because the best and only evidence
is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample
handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy
of the holographic will may be allowed because
comparison can be made with the standard writings of
the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of
a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards
the document itself as material proof of authenticity."
But, in Footnote 8 of said decision, it says that "Perhaps
it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the
photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.
Atty. Tiu : The very reason why a copy of a holographic
will should be presented in court is for there to be some
basis that the will was indeed in the handwriting of the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu

testator. Because a holographic will is one written, Grounds for Disallowance of Will ( Rule 76, Sec. 9)
dated, and signed in the testator’s own handwriting. So
the only way to authenticate it is to examine the 1. Ortega v Valmonte
handwriting. If there is no photocopy available, then
there can be no way of probating that lost holographic GR 157451, December 16, 2005
will. But if you can produce a photocopy or a carbon
copy of the holographic will, then that can be allowed. FACTS:
PROVIDED, that you were able to establish the
Placido Valmonte executed a notarial last will and
circumstances why you are presenting secondary
evidence. testament. The allowance to probate of this will was
opposed by petitioner Leticia (Placido’s sister) on the
In notarial wills, it is not really a problem, because the grounds that, among others, the will was not executed
notary public usually has a copy. You can easily request in accordance with law, that the will was executed
one from them. But in the event that there is a mere under duress, that the signature of testator was
photocopy of a notarial will, and the original has been
procured by fraud, etc.
lost or destroyed, you still have to present evidence of
the due execution and validity of that notarial will. The CA reduced the opposition to two grounds, namely:
formalities that have to be complied with are very
specific. Plus the fact that the will existed at the time of 1. Non-compliance with the legal solemnities and
death of the testator. And you should prove the
formalities in the execution and attestation of
fraudulent or destruction of the will during the lifetime
the will; and
without his knowledge. Why do you think that it should
without the knowledge of the testator? Because if he
2. Mental incapacity of the testator at the time of
knew of its destruction, but didn’t do anything about it,
then there would be an implied revocation of such will. the execution of the will as he was then in an
advanced state of senility
Atty. Tiu: In short, even if the will has been lost or
ISSUE: WON the will was executed in accordance with
destroyed, you can prove its existence, provided that
law YES
you were able to prove that the lost or destruction was
not intended by the testator during his lifetime. Because HELD:
that will be considered a revocation.
Varying dates in execution and attestation of the will
Holographic will, you can only prove that it was lost or properly explained
destroyed if there is a copy. If it is a notarial will, you
According to Leticia, deception is allegedly reflected in
can prove that it was lost or destroyed even without a
the varying dates of the execution and the attestation
copy. The problem with that is how will you prove the
of the will. SC ruling: the conflict between the dates
contents?Section 6 Rule 76. Present 2 Credible
appearing on the will does not invalidate the document,
Witnesses.
“because the law does not even require that a notarial
will be executed and acknowledged on the same
Uncontested Will (Rule 76, Sec. 5, 12)
occasion.” The variance in the dates of the will as to its
Contested Notarial Will (Rule 76, Sec. 11; Sec. 7, Sec. 8)
supposed execution and attestation was satisfactorily
Contested Holographic Will (Rule 76, Sec. 11, Sec. 12)
and persuasively explained by the notary public and the
instrumental witnesses.
Alvar, Ceballo, Cuabo
3Manresa
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
It was explained during the testimony of the lawyer and
witnesses that the will was typed during the first week
of June when they first went to Atty Sarmiento’s office.
But when the witnesses returned on June 15, Atty.
Sarmiento was out of town. So they were only able to
sign the will on Aug 9. Atty Sarmiento explained that he
did not make the corrections on the dates because he
did not want to make alterations. He, instead, wrote the
date of the acknowledgment using his own handwriting.
Fraud must be proven; it is not presumed
Petitioner contends that it was “highly dubious for a
woman at the prime of her young life [to] almost
immediately plunge into marriage with a man who
[was] thrice her age x x x and who happened to be [a]
Fil-American pensionado,” thus casting doubt on the
intention of respondent in seeking the probate of the
will. Moreover, it supposedly “defies human reason,
logic and common experience” for an old man with a
severe psychological condition to have willingly signed a
last will and testament.
SC: That the testator was tricked into signing it was not
sufficiently established by the fact that he had
instituted his wife, who was more than fifty years his
junior, as the sole beneficiary. We stress that the party
challenging the will bears the burden of proving the
existence of fraud at the time of its execution.
Unfortunately in this case, no evidence of fraud was
ever presented.
Testator was of sound mind:
According to Article 799, the three things that the
testator must have the ability to know to be considered
of sound mind are as follows: (1) the nature of the
estate to be disposed of, (2) the proper objects of the
testator’s bounty, and (3) the character of the
testamentary act. Applying this test to the present
case, we find that the appellate court was correct in
Alvar, Ceballo, Cuabo
3Manresa
holding that Placido had testamentary capacity at the
time of the execution of his will.
It must be noted that despite his advanced age, he was
still able to identify accurately the kinds of property he
owned, the extent of his shares in them and even their
locations. As regards the proper objects of his bounty,
it was sufficient that he identified his wife as sole
beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal
validity.
2. Baltazar v Laxa
G.R. No. 174489, April 11, 2012
Forgetfulness is not a ground to disallow a will ;neither
is the non presentation of all subscribing witnesses and
the notary public
FACTS:
Paciencia , a 78 year old spinster executed a Will
bequeathing all her properties to her nephew , Lorenzo
Laxa (respondent) whom she considered as her son as
well as his wife and children. She lived with Lorenzo’s
family . She was childless and without brothers or
sisters.
The witnesses to the Will were Dra. Maria Lioba A.
Limpin (Dra. Limpin), Francisco Garcia (Francisco) and
Faustino R. Mercado (Faustino). The Will remained in
the custody of Judge Limpin in whose house the will
was executed.
Four days after Paciencia’s death, Lorenzo filed a
petition for the probate of the Will of Paciencia and for
the issuance of Letters of Administration in his favor.
Antonio Baltazar(petitioner) filed an opposition and
averred that the properties subject of Paciencia’s Will
belong to Nicomeda Regala Mangalindan, his
predecessor-in-interest; hence, Paciencia had no right
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
to bequeath them to Lorenzo. Petitioner asked that the
will be denied on the following grounds:
Paciencia was mentally incapable to make a Will at the
time of its execution; that she was forced to execute
the Will under duress or influence of fear or threats;
that the execution of the Will had been procured by
undue and improper pressure and influence by
Lorenzo or by some other persons for his benefit; that
the signature of Paciencia on the Will was forged; that
assuming the signature to be genuine, it was obtained
through fraud or trickery; and, that Paciencia did not
intend the document to be her Will.
Petitioners, through their witness Rosie, claim that
Paciencia was "magulyan" or forgetful so much so that
it effectively stripped her of testamentary capacity.
They likewise claimed in their Motion for
Reconsideration filed with the CA that Paciencia was
not only "magulyan" but was actually suffering from
paranoia.
CA allowed the probate.
ISSUE:
Is forgetfulness a ground for disallowance of the will?
NO
Will the non presentation of the attesting witnesses and
notary public cause the disallowance of the will? NO
HELD:
Forgetfulness not a ground to disallow a will;
Forgetfulness not equivalent to unsoundness of mind
Being forgetful does not necessarily make a person
mentally unsound so as to render him unfit to execute a
Will. Forgetfulness is not equivalent to being of
unsound mind. Besides, Article 799 of the New Civil
Code states:
Alvar, Ceballo, Cuabo
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Art. 799. To be of sound mind, it is not necessary that
the testator be in full possession of all his reasoning
faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other
cause.
It shall be sufficient if the testator was able at the time
of making the will to know the nature of the estate to
be disposed of, the proper objects of his bounty, and
the character of the testamentary act.
In this case, apart from the testimony of Rosie
pertaining to Paciencia’s forgetfulness, there is no
substantial evidence, medical or otherwise, that would
show that Paciencia was of unsound mind at the time of
the execution of the Will. On the other hand, we find
more worthy of credence Dra. Limpin’s (daughter of
Judge Limpin) testimony as to the soundness of mind of
Paciencia when the latter went to Judge Limpin’s house
and voluntarily executed the Will. "The testimony of
subscribing witnesses to a Will concerning the testator’s
mental condition is entitled to great weight where they
are truthful and intelligent." More importantly, a
testator is presumed to be of sound mind at the time of
the execution of the Will and the burden to prove
otherwise lies on the oppositor. Article 800 of the New
Civil Code states:
Art. 800. The law presumes that every person is of
sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the
person who opposes the probate of the will; but if the
testator, one month, or less, before making his will was
publicly known to be insane, the person who maintains
the validity of the will must prove that the testator
made it during a lucid interval.
Here, there was no showing that Paciencia was publicly
known to be insane one month or less before the
making of the Will. Clearly, thus, the burden to prove
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
that Paciencia was of unsound mind lies upon the
shoulders of petitioners. However and as earlier
mentioned, no substantial evidence was presented by
them to prove the same, thereby warranting the CA’s
finding that petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was
aware of the nature of her estate to be disposed of, the
proper objects of her bounty and the character of the
testamentary act. As aptly pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was
aware of the nature of the document she executed. She
specially requested that the customs of her faith be
observed upon her death. She was well aware of how
she acquired the properties from her parents and the
properties she is bequeathing to LORENZO, to his wife
CORAZON and to his two (2) children. A third child was
born after the execution of the will and was not
included therein as devisee.
Bare allegations of duress or influence of fear or
threats, undue and improper influence and pressure,
fraud and trickery cannot be used as basis to deny the
probate of a will.
Will could not be disallowed on the basis of non
presentation of witnesses when absence is
satisfactorily explained
Section 11. Subscribing witnesses produced or
accounted for where will contested. – If the will is
contested, all the subscribing witnesses, and the notary
in the case of wills executed under the Civil Code of the
Philippines, if present in the Philippines and not insane,
must be produced and examined, and the death,
absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of such
witnesses are present in the Philippines but outside the
province where the will has been filed, their deposition
must be taken. If any or all of them testify against the
due execution of the will, or do not remember having
Alvar, Ceballo, Cuabo
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attested to it, or are otherwise of doubtful credibility,
the will may nevertheless, be allowed if the court is
satisfied from the testimony of other witnesses and
from all the evidence presented that the will was
executed and attested in the manner required by law.
If a holographic will is contested, the same shall be
allowed if at least three (3) witnesses who know the
handwriting of the testator explicitly declare that the
will and the signature are in the handwriting of the
testator; in the absence of any competent witnesses,
and if the court deem it necessary, expert testimony
may be resorted to.
We note that the inability of Faustino and Judge
Limpin to appear and testify before the court was
satisfactorily explained during the probate
proceedings. As testified to by his son, Faustino had a
heart attack, was already bedridden and could no
longer talk and express himself due to brain damage. To
prove this, said witness presented the corresponding
medical certificate. For her part, Dra. Limpin testified
that her father, Judge Limpin, suffered a stroke in 1991
and had to undergo brain surgery. At that time, Judge
Limpin could no longer talk and could not even
remember his daughter’s name so that Dra. Limpin
stated that given such condition, her father could no
longer testify. It is well to note that at that point,
despite ample opportunity, petitioners neither
interposed any objections to the testimonies of said
witnesses nor challenged the same on cross
examination. We thus hold that for all intents and
purposes, Lorenzo was able to satisfactorily account for
the incapacity and failure of the said subscribing witness
and of the notary public to testify in court. Because of
this the probate of Paciencia’s Will may be allowed on
the basis of Dra. Limpin’s testimony proving her sanity
and the due execution of the Will, as well as on the
proof of her handwriting. It is an established rule that
"[a] testament may not be disallowed just because the
attesting witnesses declare against its due execution;
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
neither does it have to be necessarily allowed just
because all the attesting witnesses declare in favor of
its legalization; what is decisive is that the court is
convinced by evidence before it, not necessarily from
the attesting witnesses, although they must testify,
that the will was or was not duly executed in the
manner required by law."
Moreover, it bears stressing that "[i]rrespective x x x of
the posture of any of the parties as regards the
authenticity and due execution of the will x x x in
question, it is the mandate of the law that it is the
evidence before the court and/or [evidence that] ought
to be before it that is controlling." "The very existence
of [the Will] is in itself prima facie proof that the
supposed [testatrix] has willed that [her] estate be
distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such
desire be given full effect independent of the attitude of
the parties affected thereby." This, coupled with
Lorenzo’s established relationship with Paciencia, the
evidence and the testimonies of disinterested
witnesses, as opposed to the total lack of evidence
presented by petitioners apart from their self-serving
testimonies, constrain us to tilt the balance in favor of
the authenticity of the Will and its allowance for
probate.
Demurrer
1. Codoy v Calugay
G.R. No. 123486, August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY,
JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
FACTS:
Calugay et al (legatees and devisees of the will) filed a
petition for probate of the holographic will of the
Alvar, Ceballo, Cuabo
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deceased. Codoy et al filed an opposition thereto
alleging that the holographic will was a forgery and that
the same is even illegible. This gives an impression that
a "third hand" of an interested party other than the
"true hand" of MatildeSeñoVda. deRamonal executed
the holographic will.
Calugay et al presented six (6) witnesses and various
documentary evidence. Codoy et al instead of
presenting their evidence, filed a demurrer to evidence,
claiming that respondents failed to establish sufficient
factual and legal basis for the probate of the
holographic will of the deceased Matilde Seño Vda.
deRamonal.
The trial court granted the demurrer to evidence filed
thus the petition for probate was denied. The case
ISSUE: WON the trial court was correct in denying
probate?
HELD:
The records are ordered remanded to the court of
origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate
of the holographic will of the deceased Matilde
Señovda. De Ramonal. [the court said that the
presentation of the 6 witnesses was not sufficient for
the probate of the will as the strokes were really
different. However, SC did not immediately dismiss the
proceeding as there was no evidence adduced by the
oppositors to support their allegation of fraud. So
thecase was remanded for receipt of more evidence]
"the object of the solemnities surrounding the
execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But on the other
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the
exercise of the right to make a will.
However, we cannot eliminate the possibility of a false
document being adjudged as the will of the testator,
which is why if the holographic will is contested, that
law requires three witnesses to declare that the will was
in the handwriting of the deceased.
The will was found not in the personal belongings of the
deceased but with one of the respondents, who kept it
even before the death of the deceased. In the
testimony of Ms.Binanay, she revealed that the will was
in her possession as early as 1985, or five years before
the death of the deceased.
There was no opportunity for an expert to compare the
signature and the handwriting of the deceased with
other documents signed and executed by her during her
lifetime. The only chance at comparison was during the
cross-examination of Ms.Binanay when the lawyer of
petitioners asked Ms.Binanay to compare the
documents which contained the signature of the
deceased with that of the holographic will and she is
not a handwriting expert. Even the former lawyer of the
deceased expressed doubts as to the authenticity of the
signature in the holographic will.
A visual examination of the holographic will convince us
that the strokes are different when compared with
other documents written by the testator. The signature
of the testator in some of the disposition is not
readable. There were uneven strokes, retracing and
erasures on the will.
Comparing the signature in the holographic will dated
August 30, 1978,33 and the signatures in several
documents such as the application letter for pasture
permit dated December 30, 1980,34 and a letter dated
Alvar, Ceballo, Cuabo
3Manresa
June 16, 1978,35 the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing
that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that
ruling holographic will was in the handwriting by the
deceased.
Guide Questions:
So, how many witnesses should be presented? 3
witnesses are required. Six were presented in this
case. However, some of the witnesses only testified
that they were familiar but they did not actually
testify that they saw the testator execute the will.
 Were the testimonies of these six witnesses
sufficient to prove the probate of the will? No. In
this case, the court said that it was not sufficient for
the probate of the will. The court here readily saw
that the strokes were really different.
 So what did the oppositor do? Given that despite
the testimony of the 6 witnesses, they were not
satisfied that the necessary proof was sufficiently
adduced to probate the will. Did the oppositors
present contrary evidence? No, they did not. They
only said that the holographic will was a forgery.
 What was the basis of the court in denying the
probate of the will, when in fact, they did not
present any evidence? Remember, forgery is not
presumed, you must substantiate that.
 Instead, what did they do? What was the basis of
the ruling of the trial court? They filed a demurrer
to evidence. This is when a party presents evidence
and the opposing party feels that what they
presented was insufficient to establish their claim,
then you file a demurrer.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
 Is demurrer applicable in special proceedings? Yes,
it applies.
 Ma’am Tiu: This case actually deals with demurrer.
There are consequences when you file a demurrer.
It’s different in a criminal case. You ask for leave of
court, if it’s granted, you file your demurrer, and if
the demurrer is denied, you can still present
evidence. If you file it without leave of court and it is
denied, then you can no longer present evidence,
and the court will rule based on the prosecution’s
evidence. In CIVIL cases, you file a demurrer to
evidence and it is granted, the case will be
dismissed. But if the dismissal is appealed, and the
appellate court reverses the dismissal,
automatically, the judgment is reversed, and the
other party can no longer present evidence. That’s
Rule 33 of the Civil procedure.
 If your demurrer is denied by the trial court, can
you present evidence? YES! This is what happened
here. The probate court granted the demurrer, the
civil case was dismissed. On appeal, the appellate
court reversed. And on reversing, the appellate
court said that you are now precluded from
presenting evidence, therefore, the will is now
considered probated, kahitwalang proof
angoppositor. This is a contested holographic will.
So being contested, you must be able to comply of
the number of witnesses to present. Three
witnesses. In this case, 6 angprinesent! Without any
opposition evidence, on the basis of the testimony of
the 6 witnesses, nagruleang trial court based on the
demurrer filed. Denied ang probate. Nireverse upon
appeal, sabing appellate court, granted ang
probate. Tama bayun? What did the SC say?
Alvar, Ceballo, Cuabo
3Manresa
 So, out of the 6 witnesses, how many positively
identified that it was the handwriting of the
testator? Only 1, so the 3 witness requirement was
not satisfied.
 Now, why didn’t the Supreme Court just affirm the
ruling of the lower court? Because they still allowed
the witnesses to present evidence to support their
opposition. They denied the probate of the will not
mainly on demurrer but on the basis of the evidence
presented.
 Ma’am Tiu: Ok, so in this case, the SC did not apply
the consequence of demurrer under Rule 33 because
given the necessity of determining the due execution
of the will, there has to be an exhaustive
presentation of evidence. Both for, and against the
probate of the will. And the only way to do that is to
allow either parties to present their respective
evidence. So, the rule of demurrer was not applied.
Although it was availed of, but it only resulted to
delay.
 So, what did the SC do here? The SC, being not sure
if indeed it was the handwriting of the deceased,
remanded the case to the trial court with
instructions to allow the oppositors to produce
evidence.
 Ma’am Tiu: So, the court allowed them to produce
evidence. Why? Because given the lack of 3
witnesses to positively identify the handwriting of
the testator, such document cannot be considered
as the last will and testament of the testator, given
that they are certain questionable circumstances
that they have noticed in the will itself. They cannot
allow a fraudulent document to be considered as
the last will and testament of a testator. That is how
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
important a last will and testament is. It has to be
ascertained that it is really the document executed
by the testator. Kasi unusual daw di ba? Every
disposition may date sakanyang will. The SC was
concerned here, that if you apply the rule on
demurrer, then there is a possibility that a
fraudulent document can be considered as the last
will and testament of the testator. The number 1
purpose of probate is really to ascertain whether
that will is really the intended will of the testator.
Certificate of Allowance (Rule 76, Sec. 13)
Ancillary Testate Proceeding (Rule 77, Sec. 1)
RULE 77
Allowance of Will Proved Outside of Philippines and
Administration of Estate Thereunder
Section 1. Will proved outside Philippines may be
allowed here. — Wills proved and allowed in a foreign
country, according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of First
Instance in the Philippines.
Section 2. Notice of hearing for allowance. — When a
copy of such will and of the order or decree of the
allowance thereof, both duly authenticated, are filed
with a petition for allowance in the Philippines, by the
executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the
hearing, and cause notice thereof to be given as in case
of an original will presented for allowance.
Section 3. When will allowed, and effect thereof. — If it
appears at the hearing that the will should be allowed in
the Philippines, the shall so allow it, and a certificate of
its allowance, signed by the judge, and attested by the
seal of the court, to which shall be attached a copy of
the will, shall be filed and recorded by the clerk, and the
Alvar, Ceballo, Cuabo
3Manresa
will shall have the same effect as if originally proves and
allowed in such court.
Section 4. Estate, how administered. — When a will is
thus allowed, the court shall grant letters testamentary,
or letters of administration with the will annexed, and
such letters testamentary or of administration, shall
extend to all the estate of the testator in the
Philippines. Such estate, after the payment of just debts
and expenses of administration, shall be disposed of
according to such will, so far as such will may operate
upon it; and the residue, if any shall be disposed of as is
provided by law in cases of estates in the Philippines
belonging to persons who are inhabitants of another
state or country.
1. Roberts v Leonidas
G.R. No. L-55509. April 27, 1984
ETHEL GRIMM ROBERTS, petitioner, vs. JUDGE TOMAS
R. LEONIDAS, Branch 38, Court of First Instance of
Manila; MAXINE TATE-GRIMM, EDWARD MILLER
GRIMM II and LINDA GRIMM, respondents.
FACTS:
The question in this case is whether a petition for
allowance of wills and to annul a partition, approved in
an intestate proceeding by Branch 20 of the Manila
Court of First Instance, can be entertained by its Branch
38 (after a probate in the Utah district court).
Edward Grimm, an American resident of Manila, died in
Manila. He was survived by his second wife, Maxine
Tate Grimm and their two children, named Edward
Miller Grimm II (Pete) and Linda Grimm and by Juanita
Grimm Morris and Ethel Grimm Roberts (McFadden),
his two children by a first marriage which ended in
divorce.
Grimm executed on January 23, 1959 2 wills in
California. First will: disposed of his Philippine estate
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
which he described as conjugal property of himself and
his second wife. Second will: disposed of his estate
outside the Philippines. (In both wills, the 2nd wife and 2
children were favoured).
The 2 wills and a codicil were presented for probate by
Maxine on March 7, 1978 in Utah. But before this, there
was already an intestate petition filed in Manila by Ethel
on January 1978. Maxine admitted that she received
notice of the said intestate petition. Thereafter, the 2
wills and codicil were admitted to probate.
2 weeks later, Maxine and her 2 children (with
knowledge of the intestate proceedings in Manila)
entered into a compromise agreement in Utah
regarding the estate. On March 11, Maxine (through
Angara law office), filed an opposition and motion to
dismiss the intestate proceeding on the ground of the
pendency of a proceeding for the probate of Grimm’s
will in Utah. The opposition and motion to dismiss were;
however, withdrawn by Maxine (through a new lawyer
Limqueco). This was apparently done pursuant to the
aforementioned Utah compromise agreement.
Acting on the declaration of heirs and project of
partition signed and filed by lawyers Limqueco and
Macaraeg (not signed by Maxine and her two children),
Judge Conrado M. Molina in his order of July 27, 1979
adjudicated to Maxine onehalf (4/8) of the decedent's
Philippine estate and one-eighth (1/8) each to his four
children.
6 days later (Aug 2), Maxine replaced Limqueco as
lawyer and moved to defer the approval of the
partition. The motion was considered moot by the court
since it had already approved the partition.
On June 10, 1980, the Angara law firm (ACCRA) filed
again its appearance as counsel for Maxine. They soon
filed, in Branch 38 of the lower court, a petition praying
for the reprobate of Grimm’s 2 wills that were already
probated in Utah, and that the Utah partition be set
Alvar, Ceballo, Cuabo
3Manresa
aside (petition to annul partition and testate
proceeding).
ISSUE: WON an agreement abroad (with regard to the
estate) can be enforced in the Philippines, even if the
agreement is not in accordance with the last will and
testament of the decedent NO
HELD:
Probate is mandatory
A testate proceeding is proper in this case because
Grimm died with two wills and "no will shall pass either
real or personal property unless it is proved and
allowed".
The probate of the will is mandatory. It is anomalous
that the estate of a person who died testate should be
settled in an intestate proceeding. Therefore, the
intestate case should be consolidated with the testate
proceeding and the judge assigned to the testate
proceeding should continue hearing the two cases.
Atty Tiu: Maxine was originally represented by ACCRA
who was replaced by Limqueco, and then replaced again
by another lawyer. So the motion to dismiss filed by
Maxine in the intestate proceeding was withdrawn
when she changed lawyer. Nung nagkagulo na sila at
naisahan na sila ni Limqueco kasi kinonchaba ni
Limqueco, nagpalit siya ng lawyer hanggang sa bumalik
siya ulit kay ACCRA. Since natapos na yung project of
partition in accordance with the agreement in UTAH
which is not in accordance with the last will and
testament of the testator. Ano ang remedy? Eh nagfinal
na ang partition nila. So ACCRA came back to the
picture and what they did was to file a case for
annulment of judgment on the ground of fraud. But
before that, meron pa silang finile at a different branch
of the court, what is it that they filed? Another petition
for probate! This is now the reprobate of the wills.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Ok, note, initially, tama ang ginawa ni Maxine!
Ipapadismiss ang intestate, papalitan ng reprobate
proceedings. Nagpalit siya ng lawyer! So withdrawn. So
they went along with the intestate proceeding, which
according to the SC was anomalous because the
testator died testate. Why then would you settle it
intestate? So they went along nga, until they came up
with the project of partition only to realize later na
naisahan sila sa project of partition yun. So balik siya
kay ACCRA, at dun si ACCRA nagdamage control. There
should have been a reprobate of the wills that were
already probated in Utah. Regardless of whatever
agreement they may have entered into abroad. So kung
may will probated abroad, no choice ka pa rin, you have
to reprobate it here. This is what this case is telling us.
Notice of Hearing (Rule 77, Sec. 2)
Proof Required (Art. 816, Civil Code)
1. Perez v Tolete
G.R. No. 76714, June 2, 1994
FACTS:
Spouses Dr. Jose Cunanan and Dr. Evelyn Cunanan are
American citizens (naturalized) . Upon their death, their
separate wills were probated in separate proceedings
with the Surrogate Court of the Country of Onondaga,
New York . The two wills were admitted and letters
testamentary issued in favor of Dr. Rafael Cunanan Jr.,
substitute executrix.
On February 21, 1983, Salud Teodoro Perez (petitioner),
the mother of Dr. Evelyn Cunanan, filed with the
Regional Trial Court, Malolos, Bulacan a petition for the
reprobate of the two bills ancillary to the probate
proceedings in New York. She also asked that she be
appointed the special administratrix of the estate of the
deceased couple consisting primarily of a farm land in
San Miguel, Bulacan.
Alvar, Ceballo, Cuabo
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The RTC Bulacan issued an order, directing the issuance
of letters of special administration in favor of petitioner
upon her filing of a P10,000.00 bond.
On May 31, Atty. Federico Alday filed a notice of
appearance as counsel for the heirs of Dr. Jose F.
Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla
Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F.
Cunanan and Loreto Cunanan Concepcion (Cunanan
heirs). He also manifested that his clients were unaware
of the filing of the testate estate case and therefore, "in
the interest of simple fair play," they should be notified
of the proceedings .
The appointment of petitioner was highly opposed by
the Cunanan heirs .
On February 21, 1984, Judge de la Llana issued an order,
disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix,
requiring the submission of petitioner of an inventory of
the property received by her as special administratrix
and declaring all pending incidents moot and academic.
Judge de la Llana reasoned out that petitioner failed to
prove the law of New York on procedure and allowance
of wills and the court had no way of telling whether the
wills were executed in accordance with the law of New
York.
The reprobate case was reassigned and the Judge
deemed the proceeding closed and terminated when it
was first disallowed in February 21, 1984.
Thereafter, petitioner filed a motion to resume
proceedings on account of the final settlement and
termination of the probate cases in New York.
Just when petitioner was ready to submit further
evidence on the law obtaining in the State of New York"
and praying that she be granted "the opportunity to
present evidence on what the law of the State of New
York has on the probate and allowance of wills, in the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
end, the Judge denied the reprobate of the will .The
denial is one the ground that the probate of separate
wills of two or more different persons even if they are
husband and wife cannot be undertaken in a single
petition.
ISSUE:
WON the Judge is correct in disallowing the reprobate
of two wills in a single petition. NO
(Based on Outline) What is the proof required for
reprobate of wills?
WON the Cunanan heirs are entitled to notice
HELD:
Joint Probate is not prohibited; liberal application of
rules
The separate wills of the Cunanan spouses should be
probated jointly. Respondent Judge’s view that the
Rules on allowance of wills is couched in singular terms
and therefore should be interpreted to mean that there
should be separate probate proceedings for the wills of
the Cunanan spouses is too literal and simplistic an
approach. Such view overlooks the provisions of Section
2, Rule 1 of the Revised Rules of Court, which advise
that the rules shall be "liberally construed in order to
promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination
of every action and proceeding."
A literal application of the Rules should be avoided if
they would only result in the delay in the administration
of
What the law expressly prohibits is the making of joint
wills either for the testator’s reciprocal benefit or for
the benefit of a third person (Civil Code of the
Philippines, Article 818). In the case at bench, the
Cunanan spouses executed separate wills. Since the two
Alvar, Ceballo, Cuabo
3Manresa
wills contain essentially the same provisions and pertain
to property which in all probability are conjugal in
nature, practical considerations dictate their joint
probate.
Requirements for Reprobate
The respective wills of the Cunanan spouses, who were
American citizens, will only be effective in this country
upon compliance with the following provision of the
Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces
effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides,
or according to the formalities observed in his country,
or in conformity with those which this Code prescribes.
Thus, proof that both wills conform with the formalities
prescribed by New York laws or by Philippine laws is
imperative.
The evidence necessary for the reprobate or allowance
of wills which have been probated outside of the
Philippines are as follows:
(1) the due execution of the will in accordance with the
foreign laws;
(2) the testator has his domicile in the foreign country
and not in the Philippines;
(3) the will has been admitted to probate in such
country;
(4) the fact that the foreign tribunal is a probate court,
and (5) the laws of a foreign country on procedure and
allowance of wills
Except for the first and last requirements, the petitioner
submitted all the needed evidence.
The necessity of presenting evidence on the foreign
laws upon which the probate in the foreign country is
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
based is impelled by the fact that our courts cannot
take judicial notice of them
Petitioner must have perceived this omission as in fact
she moved for more time to submit the pertinent
procedural and substantive New York laws but which
request respondent Judge just glossed over. While the
probate of a will is a special proceeding wherein courts
should relax the rules on evidence, the goal is to receive
the best evidence of which the matter is susceptible
before a purported will is probated or denied probate.
On Notice
Petitioner has always considered herself the sole heir
of Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she
noticeably failed to notify his heirs of the filing of the
proceedings.
The rule that the court having jurisdiction over the
reprobate of a will shall "cause notice thereof to be
given as in case of an original will presented for
allowance" (Revised Rules of Court, Rule 27, Section 2)
means that with regard to notices, the will probated
abroad should be treated as if it were an "original will"
or a will that is presented for probate for the first time.
Accordingly, compliance with Sections 3 and 4 of Rule
76, which require publication and notice by mail or
personally to the "known heirs, legatees, and devisees
of the testator resident in the Philippines" and to the
executor, if he is not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan,
contrary to petitioner's claim, are entitled to notices of
the time and place for proving the wills. Under Section 4
of Rule 76 of the Revised Rules of Court, the "court shall
also cause copies of the notice of the time and place
fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees
of the testator.
Alvar, Ceballo, Cuabo
3Manresa
RULING: Judge was wrong in denying the reprobate
because Joint Probate is not prohibited Petitioner is
directed to present further evidence to comply with 4
requirements for reprobate and Court should receive
them . Notices should be sent to the Cunanan heirs .
In the case of Perez vs Tolete, Perez argued that why
would I have to notify the other relatives of the
daughter’s husband when under the wills that she
wanted to reprobate, she was the sole and only heir.
Kelangan pa ba? Because according to the will of the
wife, pagsabay silang namatay, presumed na si husband
ang nagpredeceased. Sa will ng husband, ganun din.
Since nung namatay si wife, wala na rin siyang anak,
kasi sabay sabay silang nasunog, then the sole heir of
the wife is the ascendant, yung nanay. So sabi nung
nanay, why would I have to notify the others? Ako lang
ang sole and only heir. Why would I have to comply with
Sec 4 of Rule 76?! Is that correct?
No. The SC said, “the rule that the court having
jurisdiction over the reprobate of a will shall cause
notice thereof to be given as in case of an ORIGINAL
WILL presented for allowance”. This means that with
regard to notices, the will probated abroad should be
treated as if it were an “original will” or a will that is
presented for probate for the first time. Accordingly,
compliance with Sections 3 and 4 of Rule 76, which
require publication and notice by mail or personally to
the “known heirs, legatees, devisees of the testator
resident in the Philippines” and to the executor, if he is
not the petitioner, are required.
Ma’am Tiu: Although reprobate siya, it’s as if
panibagong will ito. You still have to comply with the
requirements. But there is another point in this case,
what are the requirements that you should comply with
in proving a will already probated?
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
The SC held that, “the evidence necessary for the
reprobate or allowance of wills which have been
probated outside of the Philippines are as follows:
1) the due execution of the the will in accordance with
foreign laws;
2) the testator has his domicile in the foreign country
and
3) the will has been admitted to probate in such country
4) the fact that the foreign tribunal is a probate court;
and
5) the laws of a foreign country on procedure and
allowance of wills.
Was the fact that the wills were admitted for probate
abroad, isn’t that enough proof of the due execution of
the will in accordance with the foreign law? How do you
present the law of a foreign country? How do you do
that? You search the internet, copy the law, and submit
it to court?
Ma’am Tiu: Go to your rule on evidence. Andiyan yan!
2. Ancheta v Guersey-Dalaygon
G.R. No. 139868, June 8, 2006
FACTS:
Spouses Audrey and Richard were American citizens
who have resided in thePhilippines for 30 years. They
have an adopted daughter, Kyle. On 1979, Audrey died,
leaving a will. In it, she bequeathed her entire estate to
Richard, who was also designated as executor. The will
was admitted to probate before Court of Maryland,
U.S.A. The court also named Atty. Ancheta (petitioner)
of the QuashaAsperillaAncheta Pena &Nolasco Law
Offices as ancillary administrator. In 1981, Richard
married Candelaria Guersey-Dalaygon (respondent).
Alvar, Ceballo, Cuabo
3Manresa
On October 1982, Audrey’s will was also admitted to
probate by the then CFI Pasig docketed as Special
Proceeding No. 9625.(Later on 1988, CFI issued an
order declaring Richard and Kyle as heirs and
adjudicated the properties including the Makati
property to them.)
On 1984, Richard died, leaving a will, wherein he
bequeathed his entire estate to respondent, save for his
rights and interests over the A/G Interiors, Inc. shares,
which he left to Kyle. The will was also admitted to
probate by the Court in Maryland, U.S.A, and eventually
designated Atty. Quasha as ancillary administrator.
The ancillary administrator in the Special proceedingNo.
M-888 (for Richard’s Estate) also filed a project of
partition wherein 2/5 of Richard’s interest in the Makati
property was allocated to respondent, while 3/5 thereof
were allocated to Richard’s three children. This was
opposed by Candelaria on the ground that under the
law of the State of Maryland, “a legacy passes to the
legatee the entire interest of the testator in the
property subject of the legacy.” Since Richard left his
entire estate to respondent, except for his rights and
interests over the A/G Interiors, Inc, shares, then his
entire ¾ undivided interest in the Makati property
should be given to Candelaria. RTC found merit in
respondent’s opposition.
Candelaria filed with CA a complaint for the annulment
of the trial court’s Orders dated 1988, issued in SP No.
9625. She argued that since Audrey devised her entire
estate to Richard, then the Makati property should be
wholly adjudicated to him, and not merely ¾ thereof,
and since Richard left his entire estate, except for his
rights and interests over the A/G Interiors, Inc., to
her(candelaria) , then the entire Makati property should
now pertain to her.
ISSUE: Whether the entire property or only ¾ thereof
should be adjudicated to Candelaria? Entire Property.
HELD:
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Section 4, Rule 77 of the Rules of Court on Allowance of
Will Proved Outside the Philippines and Administration
of Estate Thereunder, states:
SEC. 4. Estate, how administered.—xxx Such estate,
after the payment of just debts and expenses of
administration, shall be disposed of according to such
will, so far as such will may operate upon it;xxx.
General RULE: Courts are not authorized to take
judicial notice of Foreign laws; they must be proved
While foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take
judicial notice of them; however, petitioner, as ancillary
administrator of Audrey’s estate, was duty-bound to
introduce in evidence the pertinent law of the State
of Maryland.
Petitioner admitted that he failed to introduce in
evidence the law of the State of Maryland on Estates
and Trusts, and merely relied on the presumption that
such law is the same as the Philippine law on wills and
succession. Thus, the trial court peremptorily applied
Philippine laws and totally disregarded the terms of
Audrey’s will. The obvious result was that there was no
fair submission of the case before the trial court or a
judicious appreciation of the evidence presented.
Properties of Audrey passed on to Richard upon
Audrey’s death. Meanwhile, Richard, in his will,
bequeathed his entire estate to respondent, except for
his rights and interests over the A/G Interiors, Inc.
shares, which he left to Kyle. When Richard
subsequently died, the entire Makati property should
have then passed on to respondent. This, of course,
assumes the proposition that the law of the State
of Maryland which allows “a legacy to pass to the
legatee the entire estate of the testator in the property
which is the subject of the legacy,” was sufficiently
proven in Special Proceeding No. 9625. Nevertheless,
the Court may take judicial notice thereof in view of the
ruling in Bohanan v. Bohanan. Therein, the Court took
Alvar, Ceballo, Cuabo
3Manresa
judicial notice of the law of Nevada despite failure to
prove the same.
Exception: Courts may take judicial notice thereof if
interested person for that matter does not dispute the
existence or validity of said law
In this case, given that the pertinent law of the State
of Maryland has been brought to record before the CA,
and the trial court in Special Proceeding No. M-888
appropriately took note of the same in disapproving the
proposed project of partition of Richard’s estate, not to
mention that petitioner or any other interested person
for that matter, does not dispute the existence or
validity of said law, then Audrey’s and Richard’s estate
should be distributed according to their respective wills,
and not according to the project of partition submitted
by petitioner. Consequently, the entire Makati property
belongs to respondent.
Effect of Reprobate (Rule 77, Sec. 3,4)
Intestate Proceeding
Who may File Petition
1. Acain v IAC
G.R. No. 72706, October 27, 1987
FACTS:
Constantino Acain filed on the RTC, a petition for the
probate of the will of the late Nemesio Acain and for
the issuance to the same petitioner of letters
testamentary on the premise that Nemesio Acain died
leaving a will in which petitioner and his brothers
Antonio, Flores and Jose and his sisters Anita,
Concepcion, Quirina and Laura were instituted as heirs.
The oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of tile deceased
and the latter's widow Rosa Diongson Vda. de Acain
filed a motion to dismiss on the following grounds for
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the petitioner has no legal capacity to institute these
proceedings; (2) he is merely a universal heir and (3) the
widow and the adopted daughter have been preterited.
ISSUE: WON the legally adopted daughter may oppose?
YES
HELD:
Widow not preterited since not in the direct line
Insofar as the widow is concerned, Article 854 of the
Civil Code may not apply as she does not ascend or
descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even
if she is omitted from the inheritance, for she is not in
the direct line.
Legally adopted child preterited
The same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the
testator has not been questioned by petitioner. Under
Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person
the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a
legal heir of the adopter. It cannot be denied that she
has totally omitted and preterited in the will of the
testator and that both adopted child and the widow
were deprived of at least their legitime. Neither can it
be denied that they were not expressly disinherited.
Hence, this is a clear case of preterition of the legally
adopted child.
Petitioner cannot intervene
In order that a person may be allowed to intervene in a
probate proceeding he must have an interest iii the
estate, or in the will, or in the property to be affected
by it either as executor or as a claimant of the estate
and an interested party is one who would be benefited
Alvar, Ceballo, Cuabo
3Manresa
by the estate such as an heir or one who has a claim
against the estate like a creditor. Petitioner is not the
appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition
of any gift of an individual item of personal or real
property he is called upon to receive. At the outset, he
appears to have an interest in the will as an heir,
defined under Article 782 of the Civil Code as a person
called to the succession either by the provision of a will
or by operation of law. However, intestacy having
resulted from the preterition of respondent adopted
child and the universal institution of heirs, petitioner is
in effect not an heir of the testator. He has no legal
standing to petition for the probate of the will left by
the deceased and Special Proceedings No. 591 A-CEB
must be dismissed.
2. Maloles II v Philips
G.R. No. 129505, January 31, 2000
FACTS: (See facts under previous digests )
ISSUE: Who may file a petition for probate ?
HELD:
Art. 838 of the Civil Code authorizes the filing of a
petition for probate of the will filed by the testator
himself. It provides:
CIVIL CODE, ART. 838. No will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime, petition
the court having jurisdiction for the allowance of his
will. In such case, the pertinent provisions of the Rules
of Court for the allowance of wills after the testator's
death shall govern.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
The Supreme Court shall formulate such additional
Rules of Court as may be necessary for the allowance of
wills on petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his
death, shall be conclusive as to its due execution.
Rule 76, §1 likewise provides:
Sec. 1. Who may petition for the allowance of will. —
Any executor, devisee, or legatee named in a will, or
any other person interested in the estate, may, at any
time after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether the
same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in
the court for the allowance of his will.
The rationale for allowing the probate of wills during
the lifetime of testator has been explained by the Code
Commission thus:
Most of the cases that reach the courts involve either
the testamentary capacity of the testator or the
formalities adopted in the execution of wills. There are
relatively few cases concerning the intrinsic validity of
testamentary dispositions. It is far easier for the courts
to determine the mental condition of a testator during
his lifetime than after his death. Fraud, intimidation and
undue influence are minimized. Furthermore, if a will
does not comply with the requirements prescribed by
law, the same may be corrected at once. The probate
during the testator's life, therefore, will lessen the
number of contest upon wills. Once a will is probated
during the lifetime of the testator, the only questions
that may remain for the courts to decide after the
testator's death will refer to the intrinsic validity of the
testamentary dispositions. It is possible, of course, that
even when the testator himself asks for the allowance
Alvar, Ceballo, Cuabo
3Manresa
of the will, he may be acting under duress or undue
influence, but these are rare cases.
After a will has been probated during the lifetime of the
testator, it does not necessarily mean that he cannot
alter or revoke the same before his death. Should he
make a new will, it would also be allowable on his
petition, and if he should die before he has had a
chance to present such petition, the ordinary probate
proceeding after the testator's death would be in order.
Thus, after the allowance of the will of Dr. De Santos on
February 16, 1996, there was nothing else for Branch 61
to do except to issue a certificate of allowance of the
will pursuant to Rule 73, §12 of the Rules of Court.
There is, therefore, no basis for the ruling of Judge Abad
Santos of Branch 65 of RTC-Makati that —
Branch 61 of the Regional Trial Court of Makati having
begun the probate proceedings of the estate of the
deceased, it continues and shall continue to exercise
said jurisdiction to the exclusion of all others. It should
be noted that probate proceedings do not cease upon
the allowance or disallowance of a will but continues up
to such time that the entire estate of the testator had
been partitioned and distributed.
The fact that the will was allowed during the lifetime of
the testator meant merely that the partition and
distribution of the estate was to be suspended until the
latter's death. In other words, the petitioner, instead of
filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation
for the same purpose in the probate court.
3. Leviste v CA
GR. No. 29184, January 30, 1989
FACTS:
(See More facts in page 22)
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Leviste as a lawyer (on a contingent fee basis)
contended that by virtue of his contract of service with
Rosa Del Rosario thus he is considered a creditor thus a
proper party to the proceeding.
ISSUE: Is his contention tenable? NO
HELD:
Article 1052 of the Civil Code does not apply to this
case. That legal provision protects the creditor of a
repudiating heir. Petitioner is not a creditor of Rosa del
Rosario. The payment of his fees is contingent and
dependent upon the successful probate of the
holographic will. Since the petition for probate was
dismissed by the lower court, the contingency did not
occur. Attorney Leviste is not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor
is an heir. Rosa del Rosario is not a legal heir of the late
Maxima C. Reselva. Upon the dismissal of her petition
for probate of the decedent's will, she lost her right to
inherit any part of the latter's estate. There is nothing
for the petitioner to accept in her name.
Petitioner was not a party to the probate proceeding in
the lower court. He had no direct interest in the
probate of the will. His only interest in the estate is an
indirect interest as former counsel for a prospective
heir. In Paras vs. Narciso, 35 Phil. 244, We had
occassion to rule that one who is only indirectly
interested in a will may not interfere in its probate.
Thus:
... the reason for the rule excluding strangers from
contesting the will, is not that thereby the court maybe
prevented from learning facts which would justify or
necessitate a denial of probate, but rather that the
courts and the litigants should not be molested by the
intervention in the proceedings of persons with no
interest in the estate which would entitle them to be
heard with relation thereto. (Paras vs. Narciso, 35 Phil.
244, 246.)
Alvar, Ceballo, Cuabo
3Manresa
4. San Luis v San Luis
G.R. No. 133743, February 6, 2007
FACTS:
The instant case involves the settlement of the estate of
Felicisimo T. San Luis (Felicisimo), who was the former
governor of the Province of Laguna. During his lifetime,
Felicisimo contracted three marriages. His first marriage
was with Virginia Sulit on March 17, 1942 out of which
were born six children, namely: Rodolfo, Mila, Edgar,
Linda, Emilita and Manuel. On August 11, 1963, Virginia
predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married
Merry Lee Corwin, with whom he had a son, Tobias.
However, on October 15, 1971, Merry Lee, an American
citizen, filed a Complaint for Divorce in Hawaii.
On June 20, 1974, Felicisimo married respondent
Felicidad San Luis. He had no children with respondent
but lived with her for 18 years from the time of their
marriage up to his death on December 18, 1992.
Thereafter, respondent sought the dissolution of their
conjugal partnership assets and the settlement of
Felicisimo’s estate. On December 17, 1993, she filed a
petition for letters of administration.
On February 4, 1994, petitioner Rodolfo San Luis, one of
the children of Felicisimo by his first marriage, filed a
motion to dismiss and claimed that respondent has no
legal personality to file the petition because she was
only a mistress of Felicisimo since the latter, at the time
of his death, was still legally married to Merry Lee.
ISSUE: WON a co-owner in the estate may file for a
petition for intestate proceedings YES
HELD:
Respondent, as co-owner, has personality to file
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Even assuming that Felicisimo was not capacitated to
marry respondent in 1974, nevertheless, we find that
the latter has the legal personality to file the subject
petition for letters of administration, as she may be
considered the co-owner of Felicisimo as regards the
properties that were acquired through their joint efforts
during their cohabitation.
Section 6, Rule 78 of the Rules of Court states that
letters of administration may be granted to the
surviving spouse of the decedent. However, Section 2,
Rule 79 thereof also provides in part:
SEC. 2. Contents of petition for letters of administration.
– A petition for letters of administration must be filed
by an interested person and must show, as far as known
to the petitioner: x x x.
An "interested person" has been defined as one who
would be benefited by the estate, such as an heir, or
one who has a claim against the estate, such as a
creditor. The interest must be material and direct, and
not merely indirect or contingent.
Respondent qualifies as an interested person
In the instant case, respondent would qualify as an
interested person who has a direct interest in the estate
of Felicisimo by virtue of their cohabitation, the
existence of which was not denied by petitioners. If she
proves the validity of the divorce and Felicisimo’s
capacity to remarry, but fails to prove that her marriage
with him was validly performed under the laws of the
U.S.A., then she may be considered as a co-owner under
Article 144 76 of the Civil Code. This provision governs
the property relations between parties who live
together as husband and wife without the benefit of
marriage, or their marriage is void from the beginning.
It provides that the property acquired by either or both
of them through their work or industry or their wages
and salaries shall be governed by the rules on co-
ownership. In a co-ownership, it is not necessary that
Alvar, Ceballo, Cuabo
3Manresa
the property be acquired through their joint labor,
efforts and industry. Any property acquired during the
union is prima facie presumed to have been obtained
through their joint efforts. Hence, the portions
belonging to the co-owners shall be presumed equal,
unless the contrary is proven.
Meanwhile, if respondent fails to prove the validity of
both the divorce and the marriage, the applicable
provision would be Article 148 of the Family Code which
has filled the hiatus in Article 144 of the Civil Code by
expressly regulating the property relations of couples
living together as husband and wife but are
incapacitated to marry. The Court described the
property regime under this provision as follows:
The regime of limited co-ownership of property
governing the union of parties who are not legally
capacitated to marry each other, but who nonetheless
live together as husband and wife, applies to properties
acquired during said cohabitation in proportion to their
respective contributions. Co-ownership will only be up
to the extent of the proven actual contribution of
money, property or industry. Absent proof of the extent
thereof, their contributions and corresponding shares
shall be presumed to be equal.
In view of the foregoing, we find that respondent’s legal
capacity to file the subject petition for letters of
administration may arise from her status as the
surviving wife of Felicisimo or as his co-owner under
Article 144 of the Civil Code or Article 148 of the Family
Code.
Co-owner in the Estate
Form of Petition ( Rule 79, Sec. 1)
Contents of Petition (Rule 79, Sec. 2)
Notice of Hearing ( Rule 79, Sec. 3)
Who may Oppose ; grounds (Rule 79, Sec. 4)
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Hearing (Rule 79, Sec. 5)
RULE 79
Opposing Issuance Of Letters Testamentary. Petition
And Contest For Letters Of Administration
Section 1. Opposition to issuance of letters
testamentary. Simultaneous petition for administration.
— Any person interested in a will may state in writing
the grounds why letters testamentary should not issue
to the persons named therein as executors, or any of
them, and the court, after hearing upon notice, shall
pass upon the sufficiency of such grounds. A petition
may, at the time, be filed for letters of administration
with the will annexed.
Section 2. Contents of petition for letters of
administration. — A petition for letters of
administration must be filed by an interested person
and must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, and
the names and residences of the creditors, of the
decedent;
(c) The probable value and character of the property of
the estate;
(d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the
issuance of letters of administration.
Section 3. Court to set time for hearing. Notice
thereof. — When a petition for letters of administration
is filed in the court having jurisdiction, such court shall
fix a time and place for hearing the petition, and shall
cause notice thereof to be given to the known heirs and
creditors of the decedent, and to any other persons
Alvar, Ceballo, Cuabo
3Manresa
believed to have an interest in the estate, in the manner
provided in sections 3 and 4 of Rule 76.
Section 4. Opposition to petition for administration. —
Any interested person may, by filing a written
opposition, contest the petition on the ground of the
incompetency of the person for whom letters are
prayed therein, or on the ground of the contestant's
own right to the administration, and may pray that
letters issue to himself, or to any competent person or
person named in the opposition.
Section 5. Hearing and order for letters to issue. — At
the hearing of the petition, it must first be shown that
notice has been given as hereinabove required, and
thereafter the court shall hear the proofs of 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.
Section 6. When letters of administration granted to
any applicant. — Letters of administration may be
granted to any qualified applicant, though it appears
that there are other competent persons having better
right to the administration, if such persons fail to
appear when notified and claim the issuance of letters
to themselves.
Who may be Appointed (Rule 78, Sec . 1,2,3,4)
RULE 78
Letters Testamentary and of Administration, When
and to Whom Issued
Section 1. Who are incompetent to serve as executors or
administrators. — No person in competent to serve as
executor or administrator who:
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute the
duties of the trust by reason of drunkenness,
improvidence, or want of understanding or integrity, or
by reason of conviction of an offense involving moral
turpitude.
Section 2. Executor of executor not to administer estate.
— The executor of an executor shall not, as such,
administer the estate of the first testator.
Section 3. Married women may serve. — A married
woman may serve as executrix or administratrix, and
the marriage of a single woman shall not affect her
authority so to serve under a previous appointment.
Section 4. Letters testamentary issued when will
allowed. — When a will has been proved and allowed,
the court shall issue letters testamentary thereon to the
person named as executor therein, if he is competent,
accepts the trust, and gives bond as required by these
rules.
Section 5. Where some coexecutors disqualified others
may act. — When all of the executors named in a will
can not act because of incompetency, refusal to accept
the trust, or failure to give bond, on the part of one or
more of them, letters testamentary may issue to such of
them as are competent, accept and give bond, and they
may perform the duties and discharge the trust
required by the will.
Section 6. When and to whom letters of administration
granted. — If no executor is named in the will, or the
executor or executors are incompetent, refuse the
trust, or fail to give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may
be, or next of kin, or both, in the discretion of the court,
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or to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent
and willing to serve;
(b) If such surviving husband or wife, as the case may
be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to
request that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if may be granted to one or more of
the principal creditors, if competent and willing to
serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
1. Ramos v Judge Barot
A.M. No. MTJ-00-1338, January 21, 2004
FACTS:
An administrative complaint was filed against Judge
Barot . The complaint alleged that said Judge acted as
attorney-in-fact for his uncle Florencio A. Barot and
represented the latter in DARAB Cases filed by Florencio
Barot against Dominador Ramos (complainant), among
others.
ISSUE: WON the Judge violated the Code of Conduct.
YES
(based on the outline) WON a Judge may be appointed
executor, administrator, or trustee. NO
HELD:
The Code of Judicial Conduct lays down the guidelines
with respect to fiduciary activities that judges may
engage in. The thin line between what is allowed and
what is not allowed is set forth in Rule 5.06, and therein
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
made very specific. As a general rule, judges cannot
serve as executor, administrator, trustee, guardian or
other fiduciary, except if he acts in a fiduciary capacity
for the estate, trust or person of a member of his
immediate family. The Code defines "immediate
family" as being limited to the spouse and relatives
within the second degree of consanguinity. Clearly,
respondent's paternal uncle does not fall under
"immediate family" as herein defined.
The Code does not qualify the prohibition. The intent of
the rule is to limit a judge's involvement in the affairs
and interests of private individuals to minimize the risk
of conflict with his judicial duties and to allow him to
devote his undivided attention to the performance of
his official functions.
Order of Preference (Rule 78, Sec. 6 )
1. Baluyut v Cruz-Pano
G.R. No. L-42088, May 7, 1976
ALFREDO G. BALUYUT, petitioner, vs. HON. ERNANI
CRUZ PAÑO, ENCARNACION LOPEZ VDA. DE BALUYUT,
JOSE ESPINO and CORAZON ESPINO, respondents.
FACTS:
Sotero Baluyut died on 1975. A few weeks later, his
nephew, Alfredo G. Baluyut, filed in the CFI verified
petition for letters of administration. He alleged that
the deceased was survived by his widow, Encarnacion
Lopez, who was mentally incapable of acting as
administratrix of the decedent's estate. Alfredo
surmised that the decedent had executed a will. He
prayed that he be appointed regular administrator and
in the meantime as special administrator.
Mrs.Baluyut in her verified opposition alleged that she
was unaware that her deceased husband executed a
will. She characterized as libelous the allegation as to
her mental incapacity. She prayed that she be named
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administratrix and that the appointment of Alfredo G.
Baluyut as special administrator be set aside.The lower
court in its order of March 1975 cancelled Baluyut's
appointment as special administrator. In that same
order the lower court noted that after asking
Mrs.Baluyut a series of questions while on the witness
stand, it found that she "is healthy and mentally
qualified".
ISSUE: WON the lower court acted with grave abuse of
discretion in appointingMrs.Baluyut as administratrix?
HELD:
While the Spouse enjoys preference it does not follow
that he should be named as administratrix
We hold that while the probate court correctly assumed
that Mrs.Baluyut as surviving spouse enjoys preference
in the granting of letters of administration (Sec. 6[a),
Rule 78, Rules of Court), it does not follow that she
should be named administratrix without conducting a
full-dress hearing on her competency to discharge that
trust.
Even the directive of the testator in his will designating
that a certain person should act as executor is not
binding on the probate court and does not
automatically entitle him to the issuance of letters
testamentary. A hearing has to be held in order to
ascertain his fitness to act as executor. He might have
been fit to act as executor when the will was executed
but supervening circumstances might have rendered
him unfit for that position.
Hearing is still necessary
Thus, it was held that a hearing is necessary in order to
determine the suitability of the person to be appointed
administrator by giving him the opportunity to prove his
qualifications and affording oppositors a chance to
contest the petition (Matute vs. Court of Appeals, L-
26106, January 31, 1969, 26 SCRA 768, 791).
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
In this case the probate court briefly and perfunctorily
interrogated Mrs.Baluyut in order to satisfy itself on her
mental capacity. The court did not give Alfredo G.
Baluyut a chance to contest her qualifications. He had
squarely raised the issue as to her competency. The
probate court assumed that
Alfredo G. Baluyut had no interest in the decedent's
estate. As it now turned out, he is one of the legatees
named in the decedent's alleged will.
Moreover, it is necessary to convert the proceeding in
the lower court into a testamentary proceeding. The
probate of the will cannot be dispensed with and is a
matter of public policy (Art. 838, Civil Code; See. 1, Rule
75, Rules of Court; Guevara vs. Guevara, 74 Phil. 479
and 98 Phil. 249).
After the will is probated, the prior letters of
administration should be revoked and proceedings for
the issuance of letters testamentary or of
administration under the will should be conducted (Sec.
1, Rule 82, Rules of Court; Cartajena vs. Lijauco and
Zaballa, 38 Phil. 620; Rodriguez vs. De Borja, L-21993,
64 O.G. 754, 17 SCRA 418).
Whether Sotero Baluyut died testate or intestate, it is
imperative in the interest of the orderly administration
of justice that a hearing be held to determine
Mrs.Baluyut's fitness to act as executrix or
administratrix. Persons questioning her capacity should
be given an adequate opportunity to be heard and to
present evidence.
The lower court departed from the usual course of
probate procedure in summarily appointing Mrs.
Baluyut as administratrix on the assumption that
Alfredo G. Baluyut was not an interested party. That
irregularity became more pronounced after Alfredo G.
Baluyut's revelation that the decedent had executed a
will. He anticipated that development when he
articulated in his petition his belief that Sotero Baluyut
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executed wills which should be delivered to the court
for probate.
Authority issued to executors/ administrators: Letters
Testamentary
2. De Roxas v Pecson
G.R. No. L-2211, December 20, 1948
NATIVIDAD I. VDA. DE ROXAS, petitioner, vs.
POTENCIANO PECSON, Judge of First Instance of
Bulacan, MARIA ROXAS and PEDRO ROXAS,
respondents.
FACTS:
Pablo Roxas died, leaving properties in Bulacan. The
other respondents Maria and Pedro Roxas, sister and
brother respectively of the deceased, filed on August 3,
1946, a petition for the administration of the latter's
estate, in special intestate proceeding No. 1707 of the
Court of First Instance of Bulacan, and Maria Roxas was
appointed special administratrix upon an ex-parte
petition.
On August 10, 1946, the petitioner Natividad Vda. de
Roxas, widow of Pablo M. Roxas, filed a petition for the
probate of an alleged will of her deceased husband, and
for her appointment as executrix of his estate
designated is said will, and the petition was docketed as
special proceeding No. 172 of the same court. In said
will the deceased bequeathed one-half of his estate to
his widow, the herein petitioner, and the other half to
Reynaldo Roxas, an adulterous child 9 years old of the
decedent. Upon agreement of both parties, the
intestate proceeding No. 170 was dismissed and
ordered closed by the court.
In view of the opposition to the probate of the will by
the respondents Maria and Pedro Roxas, the petitioner
was appointed on September 10, 1946, special
administratrix and qualified as such over the objection
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
of the respondents Maria and Pedro Roxas, who sought
the appointment of Maria as such.
After hearing on December 15, 1947, the respondent
judge rendered a decision denying the probate of the
will presented by the petitioner on the ground that the
attesting witnesses did not sign their respective names
in the presence of the testator, from which the
petitioner has appealed, and the appeal is now pending.
On December 29, 1947, the respondents Maria and
Pedro Roxas renewed their petition for the
appointment of Maria Roxas as special administratrix or
special co-administratrix, and on May 5, 1948, the
respondent judge rendered his resolution appointing
the petitioner Natividad I. Vda. de Roxas as special
administratrix only of all the conjugal properties of the
deceased, and Maria Roxas as special administratrix of
all capital or properties belonging exclusively to the
deceased Pablo M. Roxas.
ISSUE: WON the judge was correct in appointing two
special co-administratices of the estate of the deceased
Pablo Roxas NO
HELD:
Respondent judge erred in appointing 2 administrators
Respondent's subsequent act of appointing her as
special administratrix only of the conjugal or community
property, and Maria Roxas as special administratrix of
the capital or exclusive property of the decedent, does
not seem to be in conformity with logic or reason. The
petitioner has or claims to have the same beneficial
interest after the decision of the court disapproving the
will, which is now pending on appeal, as she had prior
to it, because the decision is not yet final and may be
reversed by the appellate court.
Widow has beneficial interest over the estate
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Besides, even if the will is not probated, the widow in
the present case would have, under the law, the right of
usufruct over one-half of the exclusive property of the
decedent, besides her share in the conjugal partnership.
The beneficial interest required as a qualification for
appointment as administrator of the estate of a
decedent is the interest in the whole estate and not
only in some part thereof. The petitioner being entitled
to one-half in usufruct of all the exclusive properties of
the decedent, she would have as much if not more
interest in administering the entire estate correctly.
No need to appoint 2 administrators
There is absolutely no reason for appointing two
separate administrators, specially if the estate to be
settled is that of a deceased husband as in the present
case, for according to articles 1422 and 1423 of the Civil
Code, only after the dowry and parapherna of the wife
and the debts, charges, and obligations of the conjugal
partnership have been paid, the capital or exclusive
property of the husband may be liquidated and paid in
so far as the inventoried estate may reach; and if the
estate inventoried should not be sufficient to pay the
dowry and the parapherna of the wife and the debts,
charges and obligations of the partnership, the
provision of Title XVII of the Civil Code relating to
concurrence and preference of credits shall be
observed. If two separate administrators are appointed
as done in the present case, in every action which one
of them may institute to recover properties or credit of
the deceased, the defendant may raise the question or
set up the defense that the plaintiff has no cause of
action, because the property or credit in issue belongs
to the class which is being administered by the other
administrator, which cannot be done if the
administrator of the entire estate is only one.
In view of all the foregoing, we hold that the court
below has no power to appoint two special
administratices of the estate of a deceased husband or
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
wife, one of the community property and another of the
exclusive property of the decedent, and therefore the
respondent judge acted in excess of the court's
jurisdiction in rendering or issuing the order complained
of, and therefore said order is hereby set aside.
Atty. Tiu: The appointment of 2 special administrators,
in the case of De Roxas vs Pecson, was illegal because it
separated the conjugal and separate property of the
deceased. The court appointed a special administrator
for each. That is why it was not allowed. But are you
saying now, that just because under the factual
circumstances of Roxas vs Pecson, there can be no 2
special administrators appointed by the court? Are you
generalizing it now? There was no ruling that the court
is prohibited from 2 special administrators. It is just that,
under the factual circumstances in this case, it was an
error appointing 2 special administrators to administer
the conjugal and separate properties of the decedent.
If a special administrator is simply a temporary
administrator pending issuance of letters testamentary
of for administrarion to the regular
executor/administrator, and there can be 2 executors,
or 2 administrators appointed by the court, can you not
say the same for special administrators? Especially if the
estate is so vast, that a single special administrator
cannot handle everything. So, there is no prohibition.
3. Uy v CA
G.R. No. 167979, March 15, 2006
FACTS:
Jose K.C. Uy died intestate and survived by his wife and
5 children including Wilson(petitioner). Letters of
administration were granted to petitioner.
Johnny K.H. Uy (respondent), brother of the deceased
was allowed to intervene and was appointed co –
administrator with Wilson.
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The Court ordered Johnny to bring to the estate
properties belonging to the deceased.
Not satisfied with the compliance of private respondent
to the order of the Court, petitioner reiterated his
motion for removal of the former as co-administrator,
but the same was denied.
The trial court found that private respondent
substantially complied with the order directing him to
bring into the estate properties owned by or registered
in the name of the deceased not subject of any adverse
claim or controversy when he listed the alleged
properties suspected to be concealed, embezzled or
conveyed away by the persons named therein. Thus, it
found no cogent reason to remove private respondent
as co-administrator.
Thereafter, petitioner appealed to the Court of Appeals
by way of a petition for certiorari which however,
dismissed the petition.
The Court of Appeals held that the refusal of the trial
court to remove private respondent as co-administrator
of the estate is neither an error of jurisdiction nor a
grave abuse of discretion; that the appointment of
private respondent was justified; that the order of
preference under Section 6 of Rule 78 of the Rules of
Court does not rule out the appointment of co-
administrators; that the institution of a case for
annulment of title and reconveyance against
respondent does not justify private respondent’s
removal as co-administrator.
ISSUE: WON the Trial Court erred in disregarding the
order of preference. NO
HELD:
Under Section 6, Rule 78 of the Rules of Court, the
preference to whom letters of administration may be
granted are as follows:
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
SEC. 6. When and to whom letters of administration
granted. – If no executor is named in the will, or the
executor or executors are incompetent, refuse the
trust, or fail to give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may
be, or next of kin, or both, in the discretion of the court,
or to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent
and willing to serve;
(b) If such surviving husband or wife, as the case may
be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to
request that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
Unsuitability defeats the order of preference
The order of preference in the appointment of an
administrator depends on the attendant facts and
circumstances. In Sioca v. Garcia, this Court set aside
the order of preference, to wit:
It is well settled that a probate court cannot arbitrarily
and without sufficient reason disregard the preferential
rights of the surviving spouse to the administration of
the estate of the deceased spouse. But, if the person
enjoying such preferential rights is unsuitable, the
court may appoint another person. The determination
of a person’s suitability for the office of administrator
rests, to a great extent, in the sound judgment of the
court exercising the power of appointment and such
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judgment will not be interfered with on appeal unless it
appears affirmatively that the court below was in error.
x x x Unsuitableness may consist in adverse interest of
some kind or hostility to those immediately interested
in the estate. x x x.
In the instant case, the order of preference was not
disregarded by the trial court. Instead of removing
petitioner, it appointed private respondent, a creditor,
as co-administrator since the estate was sizeable and
petitioner was having a difficult time attending to it
alone. In fact, petitioner did not submit any report
regarding the estate under his administration. In its
March 16, 2000 Order, the trial court found thus:
Going over all the arguments of the parties, after
hearing has been set relative thereto, this Court has
observed that indeed the judicial administrator had not
submitted to the Court any report about the Estate
under his administration except those involving the
cases he filed and/or intervened in other branches. This
may be due to his being inexperienced, but this fact
will not be reason enough to remove him from the
administration of the Estate as Judicial Administrator
thereof. However, considering that the Intervenor is
claiming to be the patriarch of the Uy family and who
claims to have enormous knowledge of the businesses
and properties of the decedent Jose K.C. Uy, it is the
feeling of this Court that it will be very beneficial to the
Estate if he be appointed co-administrator (without
removing the already appointed Judicial Administrator)
of the Estate of Jose K.C. Uy, if only to shed more light
to the alleged enormous properties/businesses and to
bring them all to the decedent’s Estate pending before
this Court.
A co-administrator performs all the functions and duties
and exercises all the powers of a regular administrator,
only that he is not alone in the administration. The
practice of appointing co-administrators in estate
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
proceedings is not prohibited. In Gabriel v. Court of
Appeals, this Court reaffirmed that jurisprudence allows
the appointment of co-administrators under certain
circumstances, to wit:
Under both Philippine and American jurisprudence, the
appointment of co-administrators has been upheld for
various reasons, viz: (1) to have the benefit of their
judgment and perhaps at all times to have different
interests represented; (2) where justice and equity
demand that opposing parties or factions be
represented in the management of the estate of the
deceased; (3) where the estate is large or, from any
cause, an intricate and perplexing one to settle; (4) to
have all interested persons satisfied and the
representatives to work in harmony for the best
interests of the estate; and (5) when a person entitled
to the administration of an estate desires to have
another competent person associated with him in the
office.
Thus, petitioner’s argument that the trial court cannot
re-open the issue of the appointment of an
administrator without removing the incumbent
administrator is erroneous. In probate proceedings,
considerable latitude is allowed a probate court in
modifying or revoking its own orders as long as the
proceedings are pending in the same court and timely
applications or motions for such modifications or
revocations are made by the interested parties. In the
instant case, the estate of the deceased has not yet
been settled and the case is still within the jurisdiction
of the court.
The foregoing discussion renders moot the second issue
raised by petitioner. We see no cogent reason to set
aside the findings of the Court of Appeals, because its
findings of fact is conclusive and binding on the parties
and not subject to review by this Court, unless the case
falls under any of the exceptions to the rule.
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Authority Issued to Executors/Administrators
Letters Testamentary (Rule 78, Sec. 4)
1. Maloles v Philips
G.R. No. 129505, January 31, 2000
FACTS: See facts under “who may file the petition”
Petitioner claims the right to intervene in and oppose
the petition for issuance of letters testamentary filed by
private respondent. He argues that, as the nearest next
of kin and creditor of the testator, his interest in the
matter is material and direct.
HELD:
Rule 79, §1 provides:
Opposition to issuance of letters testamentary.
Simultaneous petition for administration. - Any person
interested in a will may state in writing the grounds why
letters testamentary should not issue to the persons
named therein as executors, or any of them, and the
court, after hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at the same
time, be filed for letters of administration with the will
annexed.
Under this provision, it has been held that an
"interested person" is one who would be benefited by
the estate, such as an heir, or one who has a claim
against the estate, such as a creditor, and whose
interest is material and direct, not merely incidental or
contingent.
Even if petitioner is the nearest next of kin of Dr. De
Santos, he cannot be considered an "heir" of the
testator. It is a fundamental rule of testamentary
succession that one who has no compulsory or forced
heirs may dispose of his entire estate by will.
Petitioner, as nephew of the testator, is not a
compulsory heir who may have been preterited in the
testator’s will.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Nor does he have any right to intervene in the
settlement proceedings based on his allegation that he
is a creditor of the deceased. Since the testator
instituted or named an executor in his will, it is
incumbent upon the Court to respect the desires of the
testator. As we stated in Ozaeta v. Pecson:
The choice of his executor is a precious prerogative of a
testator, a necessary concomitant of his right to dispose
of his property in the manner he wishes. It is natural
that the testator should desire to appoint one of his
confidence, one who can be trusted to carry out his
wishes in the disposal of his estate. The curtailment of
this right may be considered a curtailment of the right
to dispose.
Only if the appointed executor is incompetent, refuses
the trust, or fails to give bond may the court appoint
other persons to administer the estate. None of these
circumstances is present in this case.
2. Nittscher v Nittscher
FACTS:
On January 31, 1990, Dr. Werner Nittscher filed with the
RTC of Makati a petition for the probate of his
holographic will and for the issuance of letters
testamentary to respondent Atty. Nogales. RTC issued
an order allowing the said will.
Dr. Nittscher died on September 26, 1994. Atty. Nogales
then filed a petition for letters testamentary for the
administration of Nittscher’s estate. Petitioner Cynthia
Nittscher, the surviving spouse, moved for the dismissal
of said petition. She claims that the properties listed for
disposition in her husband’s will actually belong to her.
She insists she was denied due process of law because
she did not receive by personal service the notices of
the proceedings. However, the court in its September
29, 1995 Order denied petitioner’s motion to dismiss,
and granted respondent’s petition for the issuance of
letters testamentary. Petitioner contends that
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respondent’s petition for the issuance of letters
testamentary lacked a certification against forum-
shopping.
ISSUE: WON the lack of CNFS in a petition for the
issuance of letters testamentary is fatal NO
HELD:
Petition for issuance of letters testamentary not an
initiatory pleading; failure to include CNFS not a
ground for outright dismissal
As to the first issue, Revised Circular No. 28-918 and
Administrative Circular No. 04-949 of the Court require
a certification against forum-shopping for all initiatory
pleadings filed in court. However, in this case, the
petition for the issuance of letters testamentary is not
an initiatory pleading, but a mere continuation of the
original petition for the probate of Dr. Nittscher’s will.
Hence, respondent’s failure to include a certification
against forum-shopping in his petition for the issuance
of letters testamentary is not a ground for outright
dismissal of the said petition.
Letters of Administration with a Will Annexed
Letters of Administration (Rule 79, Sec. 2)
Special Administrator (Rule 80 , Sec. 1; Rule 86, Sec 8 )
RULE 80
Special Administrator
Section 1. Appointment of special administrator. —
When there is delay in granting letters testamentary or
of administration by any cause including an appeal from
the allowance or disallowance of a will, the court may
appoint a special administrator to take possession and
charge of the estate of the deceased until the questions
causing the delay are decided and executors or
administrators appointed.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Section 2. Powers and duties of special adminsitrator.
— Such special administrator shall take possession and
charge of the goods, chattels, rights, credits, and estate
of the deceased and preserve the same for the
executors or administrator afterwards appointed, and
for that purpose may commence and maintain suits as
administrator. He may sell only such perishable and
other property as the court orders sold. A special
administrator shall not be liable to pay any debts of the
deceased unless so ordered by the court.
Section 3. When powers of special administrator
cease. Transfer of effects. Pending suits. — When letters
testamentary or of administration are granted on the
estate of the deceased, the powers of the special
administrator shall cease, and he shall forthwith deliver
to the executor or administrator the goods, chattels,
money, and estate of the deceased in his hands. The
executor or administrator may prosecute to final
judgment suits commenced by such special
administrator.
1. Heirs of Castillo v Gabriel
Is the rule of preference applicable to the appointment
of a special administrator?
FACTS:
Crisanta Yanga-Gabriel, wife of Lorenzo B. Almoradie,
died and left behind a sizable inheritance consisting
mostly of real estate and shares of stock.
Her mother instituted an intestate proceeding alleging
that the estate is being managed by Lorenzo , the
deceased’s incompetent and wastrel husband . She
prayed that letters of administration be issued in favor
of her son Mariano, brother of the deceased but RTC
appointed Lorenzo as administrator .
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Meanwhile, the marriage of Crisanta and Lorenzo had
been declared void for being bigamous and the latter
was replaced by Mariano as administrator.
Subsequently, Belinda, claiming to be the only
legitimate child of Crisanta and Lorenzo filed a motion
for intervention .
Roberto Gabriel, the legally adopted son of Crisanta
filed a probate for the alleged will of Crisanta and a
petition for issuance of letters testamentary in his favor.
In said will, Roberto was designated sole heir and
alternative executor .
Belinda died. The two special proceedings were
consolidated and Roberto was appointed special
administrator of his mother’s estate to which Mariano
filed a petition for certiorari with the CA.
The heirs of Belinda filed a Motion praying that they be
allowed to substitute their mother as party-litigant .
Upon Roberto’s death, his widow Dolores filed a motion
and prayed to be appointed administratrix of the estate
of Crisanta.
The heirs of Belinda questioned the kinship of Dolores
with Roberto and filed an opposition. The lower Court
appointed Dolores as special administratrix upon a bond
of P200,000.00.
The Court ruled;
…even assuming that movant Dolores L. Gabriel’s lawful
relationship with petitioner, and corollarily with the
decedent, was not proven, the stringent rules regarding
the order of preference in the appointment of an
Administrator does not find application in the instant
case … for what is at stake here is the appointment of a
Special Administrator as such position was vacated by
the death of the previously appointed Special
Administrator in the person of petitioner herein.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
ISSUE: WON it was proper to appoint Dolores as
administratrix. YES
HELD:
Appointment of special administrator discretionary ;
order of preference inapplicable
The appointment of a special administrator lies entirely
in the discretion of the court. The order of preference in
the appointment of a regular administrator under
Section 6, Rule 78 of the Rules of Court does not apply
to the selection of a special administrator. In the
issuance of such appointment, which is but temporary
and subsists only until a regular administrator is
appointed, the court determines who is entitled to the
administration of the estate of the decedent. On this
point, We hold that the preference of private
respondent Dolores Gabriel is with sufficient reason.
Crisanta is rightful administrator being an heir of the
deceased special administrator
The facts of this case show that Roberto Gabriel – the
legally adopted son of Crisanta Yanga-Gabriel – survived
Crisanta’s death. When Crisanta died on January 25,
1989, her estate passed on to her surviving adopted son
Roberto. When Roberto himself later died on April 16,
2001, pursuant to the law on succession, his own estate
which he inherited from Crisanta passed on to his
surviving widow, private respondent.
While it is true, as petitioners submit, that private
respondent is neither a compulsory nor a legal heir of
Crisanta Yanga-Gabriel and is considered a third person
to the estate of Crisanta, nonetheless, private
respondent is undeniably entitled to the administration
of the said estate because she is an heir of her husband
Roberto, whose estate is the former estate of his
adopting mother Crisanta.
Special administrator is an officer of the Court
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The Court has repeatedly held that the appointment of
a special administrator lies in the sound discretion of
the probate court. A special administrator is a
representative of a decedent appointed by the probate
court to care for and preserve his estate until an
executor or general administrator is appointed. When
appointed, a special administrator is regarded not as a
representative of the agent of the parties suggesting
the appointment, but as the administrator in charge of
the estate, and, in fact, as an officer of the court. As
such officer, he is subject to the supervision and
control of the probate court and is expected to work
for the best interests of the entire estate, especially its
smooth administration and earliest settlement.
Principal object of appointment to preserve the estate
The principal object of appointment of temporary
administrator is to preserve the estate until it can pass
into hands of person fully authorized to administer it for
the benefit of creditors and heirs. In many instances,
the appointment of administrators for the estates of
decedents frequently become involved in protracted
litigations, thereby exposing such estates to great waste
and losses unless an authorized agent to collect the
debts and preserve the assets in the interim is
appointed. The occasion for such an appointment,
likewise, arises where, for some cause, such as a
pendency of a suit concerning the proof of the will,
regular administration is delayed.
Section 1, Rule 80 of the Revised Rules of Court
provides:
Section 1. Appointment of Special Administrator. –
When there is delay in granting letters testamentary or
of administration by any cause including an appeal from
the allowance or disallowance of a will, the court may
appoint a special administrator to take possession and
charge of the estate of the deceased until the questions
 Case Digest for Special Proceedings
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causing the delay are decided and executors or
administrators appointed.
When is appointment of special administrator proper?
The new Rules have broadened the basis for the
appointment of an administrator, and such
appointment is allowed when there is delay in granting
letters testamentary or administration by any cause,
e.g., parties cannot agree among themselves.
Nevertheless, the discretion to appoint a special
administrator or not lies in the probate court.[33] In De
Guzman v. Guadiz, Jr., the Court further elucidated –
Under the above rule, the probate court may appoint a
special administrator should there be a delay in granting
letters testamentary or of administration occasioned by
any cause including an appeal from the allowance or
disallowance of a will. Subject to this qualification, the
appointment of a special administrator lies in the
discretion of the Court. This discretion, however, must
be sound, that is, not whimsical, or contrary to reason,
justice, equity or legal principle.
The basis for appointing a special administrator under
the Rules is broad enough to include any cause or
reason for the delay in granting letters testamentary or
of administration as where a contest as to the will is
being carried on in the same or in another court, or
where there is an appeal pending as to the proceeding
on the removal of an executor or administrator, or in
cases where the parties cannot agree among
themselves. Likewise, when from any cause general
administration cannot be immediately granted, a
special administrator may be appointed to collect and
preserve the property of the deceased.
It is obvious that the phrase "by any cause" includes
those incidents which transpired in the instant case
clearly showing that there is a delay in the probate of
the will and that the granting of letters testamentary
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will consequently be prolonged necessitating the
immediate appointment of a special administrator.
As enunciated above, the probate court has ample
jurisdiction to appoint respondent as special
administratrix. The deceased Crisanta Yanga-Gabriel left
a document purporting to be her will where her
adopted son, Roberto, was named as the sole heir of all
her properties. However, pending probate of the will,
Roberto died leaving his widow, the respondent herein,
as his sole heir. Thus, the respondent has much stake in
Crisanta’s estate in case the latter’s will is allowed
probate. It needs to be emphasized that in the
appointment of a special administrator (which is but
temporary and subsists only until a regular
administrator is appointed), the probate court does not
determine the shares in the decedent’s estate, but
merely appoints who is entitled to administer the
estate. The issue of heirship is one to be determined in
the decree of distribution, and the findings of the court
on the relationship of the parties in the administration
as to be the basis of distribution. Thus, the preference
of respondent is sound, that is, not whimsical, or
contrary to reason, justice, equity or legal principle.
Preference of administrator not applicable in
appointment of special administrator
The petitioners’ strenuous invocation of Section 6, Rule
78 of the Rules of Court is misplaced. The rule refers to
the appointment of regular administrators of estates;
Section 1, Rule 80, on the other hand, applies to the
appointment of a special administrator. It has long been
settled that the appointment of special administrators is
not governed by the rules regarding the appointment of
regular administrators. Thus, in Roxas v. Pecson,[38] this
Court ruled:
It is well settled that the statutory provisions as to the
prior or preferred right of certain persons to the
appointment of administrator under Section 1, Rule 81,
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
as well as the statutory provisions as to causes for
removal of an executor or administrator under section
653 of Act No. 190, now Section 2, Rule 83, do not apply
to the selection or removal of special administrator. ...
As the law does not say who shall be appointed as
special administrator and the qualifications the
appointee must have, the judge or court has discretion
in the selection of the person to be appointed,
discretion which must be sound, that is, not whimsical
or contrary to reason, justice or equity.
2. Tan v Gregorio
G.R. No. 166520, March 14, 2008
FACTS:
Gerardo Tan (Gerardo) died without a will. Private
respondents (who are claiming to be the children of the
deceased) filed a with the RTC a Petition for the
issuance of letters of administration. Petitioners,
claiming to be legitimate heirs of Gerardo Tan, filed an
Opposition to the Petition.
Private respondents then moved for the appointment of
a special administrator and prayed that their attorney-
in-fact, Romualdo D. Lim (Romualdo), be appointed as
the special administrator. Petitioners filed an
Opposition to private respondents’ Motion for
Appointment.
RTC issued an Order appointing Romualdo as special
administrator of Gerardo’s Estate.
Petitioners contendthat they should be given priority in
the administration of the estate since they are allegedly
the legitimate heirs of the late Gerardo, as opposed to
private respondents, who are purportedly Gerardo’s
illegitimate children. Petitioners rely on the doctrine
that generally, it is the nearest of kin, whose interest is
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more preponderant, who is preferred in the choice of
administrator of the decedent’s estate.
Petitioners also claim that they are more competent
than private respondents or their attorney-in-fact to
administer Gerardo’s estate. Petitioners Vilma and
Gerardo “Jake” Tan (Jake) claim to have lived for a long
time and continue to reside on Gerardo’s estate, while
respondents are not even in the Philippines, having long
established residence abroad.
ISSUE: WON Private respondents should be preferred in
the appointment as special administrator? NO.
HELD:
Order of Preference not applicable
The order of preference in the appointment of a regular
administrator as provided in the afore-quoted provision
does not apply to the selection of a special
administrator. The preference under Section 6, Rule 78
of the Rules of Court for the next of kin refers to the
appointment of a regular administrator, and not of
aspecial administrator, as the appointment of the
latter lies entirely in the discretion of the court, and is
not appealable.
Proper Remedy is Certiorari
Not being appealable, the only remedy against the
appointment of a special administrator
is Certiorari under Rule 65 of the Rules of Court, which
was what petitioners filed with the Court of
Appeals. Certiorari, however, requires nothing less than
grave abuse of discretion, a term which implies such
capricious and whimsical exercise of judgment which is
equivalent to an excess or lack of jurisdiction. The
abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at
all in contemplation of law.
 Case Digest for Special Proceedings
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Residence of SA Immaterial
We find immaterial the fact that private respondents
reside abroad, for the same cannot be said as regards
their attorney-in-fact, Romualdo, who is, after all, the
person appointed by the RTC as special
administrator. It is undisputed that Romualdo resides in
the country and can, thus, personally administer
Gerardo’s estate.
When issuance of SA Proper
If petitioners really desire to avail themselves of the
order of preference provided in Section 6, Rule 78 of
the Rules of Court, so that petitioner Vilma as the
supposed next of kin of the late Gerardo may take over
administration of Gerardo’s estate, they should already
pursue the appointment of a regular administrator and
put to an end the delay which necessitated the
appointment of a special administrator. The
appointment of a special administrator is justified only
when there is delay in granting letters, testamentary (in
case the decedent leaves behind a will) or
administrative (in the event that the decedent leaves
behind no will, as in the Petition at bar) occasioned by
any cause. The principal object of the appointment of a
temporary administrator is to preserve the estate until
it can pass into the hands of a person fully authorized to
administer it for the benefit of creditors and heirs.
In the case at bar, private respondents were
constrained to move for the appointment of a special
administrator due to the delay caused by the failure of
petitioner Vilma to comply with the directives of the
court-appointed commissioner.
3. De Roxas v Pecson
FACTS:
Pablo Roxas died, leaving properties in Bulacan. The
other respondents Maria and Pedro Roxas, sister and
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brother respectively of the deceased, filed on August 3,
1946, a petition for the administration of the latter's
estate, in special intestate proceeding No. 1707 of the
Court of First Instance of Bulacan, and Maria Roxas was
appointed special administratrix upon an ex-parte
petition.
On August 10, 1946, the petitioner Natividad Vda. de
Roxas, widow of Pablo M. Roxas, filed a petition for the
probate of an alleged will of her deceased husband, and
for her appointment as executrix of his estate
designated is said will, and the petition was docketed as
special proceeding No. 172 of the same court. In said
will the deceased bequeathed one-half of his estate to
his widow, the herein petitioner, and the other half to
Reynaldo Roxas, an adulterous child 9 years old of the
decedent. Upon agreement of both parties, the
intestate proceeding No. 170 was dismissed and
ordered closed by the court.
In view of the opposition to the probate of the will by
the respondents Maria and Pedro Roxas, the petitioner
was appointed on September 10, 1946, special
administratrix and qualified as such over the objection
of the respondents Maria and Pedro Roxas, who sought
the appointment of Maria as such.
After hearing on December 15, 1947, the respondent
judge rendered a decision denying the probate of the
will presented by the petitioner on the ground that the
attesting witnesses did not sign their respective names
in the presence of the testator, from which the
petitioner has appealed, and the appeal is now pending.
On December 29, 1947, the respondents Maria and
Pedro Roxas renewed their petition for the
appointment of Maria Roxas as special administratrix or
special co-administratrix, and on May 5, 1948, the
respondent judge rendered his resolution appointing
the petitioner Natividad I. Vda. de Roxas as special
administratrix only of all the conjugal properties of the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
deceased, and Maria Roxas as special administratrix of
all capital or properties belonging exclusively to the
deceased Pablo M. Roxas.
ISSUE: WON the judge was correct in appointing two
special co-administratices of the estate of the deceased
Pablo Roxas NO
HELD:
Respondent judge erred in appointing 2 administrators
Respondent's subsequent act of appointing her as
special administratrix only of the conjugal or community
property, and Maria Roxas as special administratrix of
the capital or exclusive property of the decedent, does
not seem to be in conformity with logic or reason. The
petitioner has or claims to have the same beneficial
interest after the decision of the court disapproving the
will, which is now pending on appeal, as she had prior
to it, because the decision is not yet final and may be
reversed by the appellate court.
Widow has beneficial interest over the estate
Besides, even if the will is not probated, the widow in
the present case would have, under the law, the right of
usufruct over one-half of the exclusive property of the
decedent, besides her share in the conjugal partnership.
The beneficial interest required as a qualification for
appointment as administrator of the estate of a
decedent is the interest in the whole estate and not
only in some part thereof. The petitioner being entitled
to one-half in usufruct of all the exclusive properties of
the decedent, she would have as much if not more
interest in administering the entire estate correctly.
No need to appoint 2 administrators
There is absolutely no reason for appointing two
separate administrators, specially if the estate to be
settled is that of a deceased husband as in the present
case, for according to articles 1422 and 1423 of the Civil
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Code, only after the dowry and parapherna of the wife
and the debts, charges, and obligations of the conjugal
partnership have been paid, the capital or exclusive
property of the husband may be liquidated and paid in
so far as the inventoried estate may reach; and if the
estate inventoried should not be sufficient to pay the
dowry and the parapherna of the wife and the debts,
charges and obligations of the partnership, the
provision of Title XVII of the Civil Code relating to
concurrence and preference of credits shall be
observed. If two separate administrators are appointed
as done in the present case, in every action which one
of them may institute to recover properties or credit of
the deceased, the defendant may raise the question or
set up the defense that the plaintiff has no cause of
action, because the property or credit in issue belongs
to the class which is being administered by the other
administrator, which cannot be done if the
administrator of the entire estate is only one.
In view of all the foregoing, we hold that the court
below has no power to appoint two special
administratices of the estate of a deceased husband or
wife, one of the community property and another of the
exclusive property of the decedent, and therefore the
respondent judge acted in excess of the court's
jurisdiction in rendering or issuing the order complained
of, and therefore said order is hereby set aside.
Atty. Tiu: The appointment of 2 special administrators,
in the case of De Roxas vs Pecson, was illegal because it
separated the conjugal and separate property of the
deceased. The court appointed a special administrator
for each. That is why it was not allowed. But are you
saying now, that just because under the factual
circumstances of Roxas vs Pecson, there can be no 2
special administrators appointed by the court? Are you
generalizing it now? There was no ruling that the court
is prohibited from 2 special administrators. It is just that,
under the factual circumstances in this case, it was an
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
error appointing 2 special administrators to administer
the conjugal and separate properties of the decedent.
If a special administrator is simply a temporary
administrator pending issuance of letters testamentary
of for administrarion to the regular
executor/administrator, and there can be 2 executors,
or 2 administrators appointed by the court, can you not
say the same for special administrators? Especially if the
estate is so vast, that a single special administrator
cannot handle everything. So, there is no prohibition.
Powers and Duties ( Rule 80, Sec. 2,3 )
Co-Administrator
1. Uy v CA
(Please see facts on previous case for more details)
The brother of deceased , who also happens to be a
creditor, was appointed co-administrator with the
deceased’s son.The son was first appointed prior to the
brother .
ISSUE : WON the appointment of co-administrator was
proper vis a vis :
1. Finality of the order designating the son as
administrator (YES)
2. Order of preference (YES)
HELD:
Finality :
In probate proceedings, considerable latitude is allowed
a probate court in modifying or revoking its own orders
as long as the proceedings are pending in the same
court and timely applications or motions for such
modifications or revocations are made by the interested
parties. In the instant case, the estate of the deceased
has not yet been settled and the case is still within the
jurisdiction of the court.
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Order of preference:
Under Section 6, Rule 78 of the Rules of Court, the
preference to whom letters of administration may be
granted are as follows:
SEC. 6. When and to whom letters of administration
granted. – If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust,
or fail to give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may be,
or next of kin, or both, in the discretion of the court, or
to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent
and willing to serve;
(b) If such surviving husband or wife, as the case may
be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or
next of kin, neglects for thirty (30) days after the death
of the person to apply for administration or to request
that administration be granted to some other person, it
may be granted to one or more of the principal
creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
The order of preference may be set aside for certain
reasons
The order of preference in the appointment of an
administrator depends on the attendant facts and
circumstances. In Sioca v. Garcia,11 this Court set aside
the order of preference, to wit:
It is well settled that a probate court cannot arbitrarily
and without sufficient reason disregard the preferential
rights of the surviving spouse to the administration of
the estate of the deceased spouse. But, if the person
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
enjoying such preferential rights is unsuitable, the
court may appoint another person. The determination
of a person’s suitability for the office of administrator
rests, to a great extent, in the sound judgment of the
court exercising the power of appointment and such
judgment will not be interfered with on appeal unless it
appears affirmatively that the court below was in error.
x x x Unsuitableness may consist in adverse interest of
some kind or hostility to those immediately interested
in the estate. x x x.
Order of preference was NOT disregarded in this case
the instant case, the order of preference was not
disregarded by the trial court. Instead of removing
petitioner (son) , it appointed private respondent
(brother) , a creditor, as co-administrator since the
estate was sizeable and petitioner was having a difficult
time attending to it alone. In fact, petitioner did not
submit any report regarding the estate under his
administration. In its March 16, 2000 Order, the trial
court found thus:
Going over all the arguments of the parties, after
hearing has been set relative thereto, this Court has
observed that indeed the judicial administrator had not
submitted to the Court any report about the Estate
under his administration except those involving the
cases he filed and/or intervened in other branches. This
may be due to his being inexperienced, but this fact will
not be reason enough to remove him from the
administration of the Estate as Judicial Administrator
thereof. However, considering that the Intervenor is
claiming to be the patriarch of the Uy family and who
claims to have enormous knowledge of the businesses
and properties of the decedent Jose K.C. Uy, it is the
feeling of this Court that it will be very beneficial to the
Estate if he be appointed co-administrator (without
removing the already appointed Judicial Administrator)
of the Estate of Jose K.C. Uy, if only to shed more light
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to the alleged enormous properties/businesses and to
bring them all to the decedent’s Estate pending before
this Court.
Appointment of co-administrator not prohibited in
certain cases
A co-administrator performs all the functions and duties
and exercises all the powers of a regular administrator,
only that he is not alone in the administration. The
practice of appointing co-administrators in estate
proceedings is not prohibited. In Gabriel v. Court of
Appeals, this Court reaffirmed that jurisprudence allows
the appointment of co-administrators under certain
circumstances, to wit:
Under both Philippine and American jurisprudence, the
appointment of co-administrators has been upheld for
various reasons, viz:
(1) to have the benefit of their judgment and perhaps
at all times to have different interests represented;
(2) where justice and equity demand that opposing
parties or factions be represented in the management
of the estate of the deceased;
(3) where the estate is large or, from any cause, an
intricate and perplexing one to settle;
(4) to have all interested persons satisfied and the
representatives to work in harmony for the best
interests of the estate; and
(5) when a person entitled to the administration of an
estate desires to have another competent person
associated with him in the office.
Conclusion: Appointment of co-administrator proper in
certain circumstances. When the Court do appoints
one, It does not necessarily disregard the order of
preference under the Rules.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
RULE 81
Bond of Executors and Administrators
Section 1. Bond to be given issuance of
letters. Amount. Conditions. — Before an executor or
administrator enters upon the execution of his trust,
and letters testamentary or administration issue, he
shall give a bond, in such sum as the court directs,
conditioned as follows:
(a) To make and return to the court, within three (3)
months, a true and complete inventory of all goods,
chattels, rights, credits, and estate of the deceased
which shall come to his possession or knowledge or to
the possession of any other person for him;
(b) To administer according to these rules, and, if an
executor, according to the will of the testator, all goods,
chattels, rights, credits, and estate which shall at any
time come to his possession or to the possession of any
other person for him, and from the proceeds to pay and
discharge all debts, legacies, and charges on the same,
or such dividends thereon as shall be decreed by the
court;
(c) To render a true and just account of his
administration to the court within one (1) years, and at
any other time when required by the court;
(d) To perform all orders of the court by him to be
performed.
Section 2. Bond of executor where directed in
will. When further bond required. — If the testator in his
will directs that the executors serve without bond, or
with only his individual bond, he may be allowed by the
court to give bond in such sum and with such surety as
the court approves conditioned only to pay the debts of
the testator; but the court may require of the executor
a further bond in case of a change in his circumstance,
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or for other sufficient case, with the conditions named
in the last preceding section.
Section 3. Bonds of joint executors and administrators.
— When two or more persons are appointed executors
or administrators the court may take a separate bond
from each, or a joint bond from all.
Section 4. Bond of special administrator. — A special
administrator before entering upon the duties of his
trust shall give a bond, in such sum as the court directs,
conditioned that he will make and return a true
inventory of the goods, chattels, rights, credits, and
estate of the deceased which come to his possession or
knowledge, and that he will truly account for such as
are received by him when required by the court, and
will deliver the same to the person appointed executor
or administrator, or to such other person as may be
authorized to receive them.
RULE 82
Revocation of Administration, Death, Resignation, and
Removal of Executors or Administrators
Section 1. Administration revoked if will
discovered. Proceedings thereupon. — If after letters of
administration have been granted on the estate of a
decedent as if he had died intestate, his will is proved
and allowed by the court, the letters of administration
shall be revoked and all powers thereunder cease, and
the administrator shall forthwith surrender the letters
to the court, and render his account with such time as
the court directs. Proceeding for the issuance of letters
testamentary or of administration under the will shall
be as hereinbefore provided.
Section 2. Court may be remove or accept resignation of
executor or administrator. Proceeding upon death,
resignation, or removal. — If an executor or
administrator neglects to render his account and settle
the estate according to law, or to perform an order or
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
judgment of the court, or a duty expressly provided by
these rules, or absconds, or becomes insane, or
otherwise incapable or insuitable to discharge the trust,
the court may remove him, or in its discretion, may
permit him to resign. When an executor or
administrator dies, resign, or is removed the remaining
executor or administrator may administer the the trust
alone, unless the court grants letters to someone to act
with him. If there is no remaining executor or
administrator, administration may be to any suitable
person.
Section 3. Acts before revocation, resignation, or
removal to be valid. — The lawful acts of an executor or
administrator before the revocation of his letters
testamentary or of administration, or before his
resignation or removal, shall have the like validity as if
there had been no such revocation, resignation, or
removal.
Section 4. Powers of new executor or administrator.
Renewal of license to sell real estate. — The person to
whom letters testamentary or of administration are
granted after the revocation of former letters, or the
death, resignation, or removal of a former executor or
administrator, shall have the like powers to collect and
settle the estate not administered that the former
executor or administrator had, and may prosecute or
defend actions commenced by or against the former
executor or administrator, and have execution on
judgments recovered in the name of such former
executor or administrator. An authority granted by the
court to the former executor or administrator for the
sale or mortgage of real estate may be renewed in favor
of such person without further notice or hearing.
RULE 83
Inventory and Appraisal. Provision for Support of
Family
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Section 1. Inventory and appraisal to be returned within
three months. — Within three (3) months after his
appointment every executor or administrator shall
return to the court a true inventory and appraisal of all
real and personal estate of the deceased which has
come into his possession or knowledge. In the
appraisement of such estate, the court may order one
or more of the inheritance tax appraisers to give his or
their assistance.
Section 2. Certain article not to be inventoried. — The
wearing apparel of the surviving husband or wife and
minor children., the marriage bed and bedding, and
such provisions and other articles as will necessarily be
consumed in the substinence of the family of the
deceased, under the direction of the court, shall not be
considered as assets, nor administered as such, and
shall not be included in the inventory.
Section 3. Allowance to widow and family. — The
widow and minor or incapacitated children of a
deceased person, during the settlement of the estate,
shall receive therefrom, under the direction of the
court, such allowance as are provided by law.
RULE 84
General Powers and Duties of Executors and
Administrators
Section 1. Executor or administrator to have access to
partnership books and property. How right enforced. —
The executor or administrator of the estate of a
deceased partner shall at all times have access to, and
may examine and take copies of, books and papers
relating to the partnership business, and make examine
and make invoices of the property belonging to such
partnership; and the surviving partner or partners, on
request, shall exhibit to him all such books, papers, and
property in their hands or control. On the written
application of such executor or administrator, the court
having jurisdiction of the estate may order any such
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
surviving partner or partners to freely permit the
exercise of the rights, and to exhibit the books, papers,
and property, as in this section provided, and may puish
any partner failing to do so for contempt.
Section 2. Executor or administrator to keep buildings in
repair. — An executor or administrator shall maintain in
tenanble repair the houses and other structures and
fences belonging to the estate, and deliver the same in
such repair to the heirs or devisees when directed so to
do by the court.
Section 3. Executor or administrator to retain whole
estate to pay debts, and to administer estate not willed.
— An executor or administrator shall have the right to
the possession and management of the real as well as
the personal estate of the deceased so long as it is
necessary for the payment of the debts and the
expenses of administration.
Bonds
Executor /Administrator (Rule 81, Sec. 1,2)
Co-Executors/ Co-Administrators ( Rule 81, Sec. 3)
Special Administrator (Rule 81, Sec. 4)
Powers of Executor /Administrator (Rule 87, Sec.
2,3,4,6,7,8)
Duties of Executor/Administrator
Rule 83, Sec. 1
Rule 84, Sec. 2,3
Rule 85, Sec. 3, 8
Rule 87, Sec. 9
Accountability of Executor / Administrator (Rule 85, Sec.
1, 2,4,5,6)
Expenses Allowed (Rule 85, Sec. 6, 7; Rule 83, Sec. 3)
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Article 133, Family Code
RULE 85
Accountability and Compensation of Executors and
Administrators
Section 1. Executor or administrator chargeable with all
estate and income. — Except as otherwise expressly
provided in the following sections, every executor or
administrator is chargeable in his account with the
whole of the estate of the deceased which has come
into his possession, at the value of the appraisement
contained in the inventory; with all the interest, profit,
and income of such estate; and with the proceeds of so
much of the estate as is sold by him, at the price at
which it was sold.
Section 2. Not to profit by increase or lose by decrease
in value. — No executor or administrator shall profit by
the increase, or suffer loss by the decrease or
destruction, without his fault, of any part of the estate.
He must account for the excess when he sells any part
of the estate for more than the appraisement, and if
any is sold for the less than the appraisement, he is not
responsible for the loss, if the sale has justly made. If he
settles any claim against the estate for less than its
nominal value, he is entitled to charge in his account
only the amount he actually paid on the settlement.
Section 3. When not accountable for debts due estate.
— No executor or administrator shall be accountable
for debts due the deceased which remain uncollected
without his fault.
Section 4. Accountable for income from realty used by
him. — If the executor or administrator uses or occupies
any part of the real estate himself, he shall account for
it as may be agreed upon between him and the parties
interested, or adjusted by the court with their assent;
and if the parties do not agree upon the sum to be
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
allowed, the same may be ascertained by the court,
whose determination in this respect shall be final.
Section 5. Accountable if he neglects or delays to raise
or pay money. — When an executor or administrator
neglects or unreasonably delays to raise money, by
collecting the debts or selling the real or personal estate
of the deceased, or neglects to pay over the money he
has in his hands, and the value of the estate is thereby
lessened or unnecessary cost or interest accrues, or the
persons interested suffer loss, the same shall be
deemed waste and the damage sustained may be
charged and allowed against him in his account, and he
shall be liable therefor on his bond.
Section 6. When allowed money paid as cost. — The
amount paid by an executor or administrator for costs
awarded against him shall be allowed in his
administration account, unless it appears that the
action or proceeding in which the costs are taxed was
prosecuted or resisted without just cause, and not in
good faith.
Section 7. What expenses and fees allowed executor or
administrator. Not to charge for services as
attorney. Compensation provided by will controls unless
renounced. — An executor or administrator shall be
allowed the necessary expenses the care, management,
and settlement of the estate, and for his services, four
pesos per day for the time actually and necessarily
employed, or a commission upon the value of so much
of the estate as comes into his possession and is finally
disposed of by him in the payment of debts, expenses,
legacies, or distributive shares, or by delivery to heirs or
devisees, of two per centum of the first five thousand
pesos of such value, one per centum of so much of such
value as exceeds five thousand pesos and does not
exceed thirty thousand pesos, one-half per centum of so
much of such value as exceed one hundred thousand
pesos. But in any special case, where the estate is large,
and the settlement has been attended with great
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difficulty, and has required a high degree of capacity on
the part of the executor or administrator, a greater sum
may be allowed. If objection to the fees allowed be
taken, the allowance may be re-examined on appeal.
If there are two or more executors or administrators,
the compensation shall be apportioned among them by
the court according to the services actually rendered by
them respectively.
When the executors or administrator is an attorney, he
shall not charge against the estate any professional fees
for legal services rendered by him.
When the deceased by will makes some other provision
for the compensation of his executor, that provision
shall be a full satisfaction for his services unless by a
written instrument filed in the court he renounces all
claim to the compensation provided by the will.
Section 8. When executor or administrator to render
account. — Every executor or administrator shall render
an account of his administration within one (1) year
from the time of receiving letters testamentary or of
administration, unless the court otherwise directs
because of extensions of time for presenting claims
against, or paying the debts of, the estate, or for
disposing of the estate; and he shall render such further
accounts as the court may require until the estate is
wholly settled.
Section 9. Examinations on oath with respect to
account — The court may examine the executor or
administrator upon oath with respect to every matter
relating to any account rendered by him, and shall so
examine him as to the correctness of his account before
the same is allowed, except when no objection is made
to the allowance of the account and its correctness is
satisfactorily established by competent proof. The heirs,
legatees, distributees, and creditors of the estate shall
have the same privilege as the executor or
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
administrator of being examined on oath on any matter
relating to an administration account.
Section 10. Account to be settled on notice. — Before
the account of an executor or administrator is allowed,
notice shall be given to persons interested of the time
and place of examining and allowing the same; and such
notice may be given personally to such persons
interested or by advertisement in a newspaper or
newspapers, or both, as the court directs.
Section 11. Surety on bond may be party to accounting.
— Upon the settlement of the account of an executor
or administrator, a person liable as surety in respect to
such account may, upon application, be admitted as
party to such accounting.
1. Santero v CFI of Cavite
G.R. No. L-61700, September 14, 1987
PRINCESITA SANTERO, FEDERICO SANTERO and WILLIE
SANTERO, petitioners, vs. HON. COURT OF FIRST
INSTANCE OF CAVITE, ANSELMA DIAZ, VICTOR,
RODRIGO, ANSELMINA, MIGUEL, all surnamed
SANTERO, and REYNALDO EVARISTO, in his capacity as
Administrator of the Intestate Estate of PABLO
SANTERO, respondents.
FACTS:
Anselma Diaz is the mother and guardian of Victor,
Rodrigo, Anselmina, and Miguel. They are the natural
(illegitimate) children of herein decedent Pablo Santero
whose estate in being settled. In such proceeding, the
guardian filed a Motion for Allowance praying that her 3
other children with deceased be also given support.
She prayed for the order to deliver the sum of
P6,000.00 to each of the seven (7) children of Anselma
Diaz as their allowance from the estate of Pablo
Santero. This order was opposed by petitioners on the
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ground that the 3 children are all of age, 2 are gainfully
employed and one is married.
The Order was granted hence this petition.
ISSUE: Won it was proper to include the children who
are no longer minors in the order to give support. YES
HELD:
The Civil Code allows children, without distinction,
their rightful allowance
The controlling provision of law is not Rule 83, Sec. 3 of
the New Rules of Court but Arts. 290 and 188 of the
Civil Code reading as follows:
Art. 290. Support is everything that is indispensable for
sustenance, dwelling, clothing and medical attendance,
according tothe social position of the family.
Support also includes the education of the person
entitled to be supported until he completes his
education or training for some profession, trade or
vocation, even beyond the age of majority.
Art. 188. From the common mass of property support
shall be given to the surviving spouse and to the
children during the liquidation of the inventoried
property and until what belongs to them is delivered;
but from this shall be deducted that amount received
for support which exceeds the fruits or rents pertaining
to them.
The fact that private respondents are of age, gainfully
employed, or married is of no moment and should not
be regarded as the determining factor of their right to
allowance under Art. 188. While the Rules of Court limit
allowances to the widow and minor or incapacitated
children of the deceased, the New Civil Code gives the
surviving spouse and his/her children without
distinction. Hence, the private respondents Victor,
Rodrigo, Anselmina and Miguel all surnamed Santero
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu

are entitled to allowances as advances from their shares
in the inheritance from their father Pablo Santero. Since
the provision of the Civil Code, a substantive law, gives
the surviving spouse and to the children the right to
receive support during the liquidation of the estate of
the deceased, such right cannot be impaired by Rule 83
Sec. 3 of the Rules of Court which is a procedural rule.
Be it noted however that with respect to "spouse," the
same must be the "legitimate spouse" (not common-
law spouses who are the mothers of the children here).
2. Ruiz v CA
G.R. No. 118671, January 29, 1996
FACTS:
On 1987, Hilario M. Ruizexecuted a holographic will
naming as his heirs his only son, Edmond Ruiz, his
adopted daughter, private respondent Maria Pilar Ruiz
Montes, and his three granddaughters, private
respondents Maria Cathryn, Candice Albertine and
Maria Angeline, all children of Edmond Ruiz. The
testator bequeathed to his heirs substantial cash,
personal and real properties and named Edmond Ruiz
executor of his estate.
Ruiz died on 1988. Four years after, Montes filed
petition for the probate and approval of Hilario Ruiz’s
will and for the issuance of letters testamentary to
Edmond Ruiz.
The probate court admitted the will to probate and
ordered the issuance of letters testamentary
to Edmond.
Edmond filed an “Ex-Parte Motion for Release of
Funds.” It prayed for the release of the rent payments
deposited with the Branch Clerk of Court. Montes
opposed the motion and concurrently filed a “Motion
for Release of Funds to Certain Heirs” praying for the
release of the said rent payments to the three
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grandchildren in accordance with the provisions of the
holographic will.
The probate court denied Edmond’s motion for release
of funds but granted Montes’ motion in view of
Edmond’s lack of opposition. It thus ordered the
release of the rent payments to the decedent’s three
granddaughters.
Petitioner alleges that this provision only gives the
widow and the minor or incapacitated children of the
deceased the right to receive allowances for support
during the settlement of estate proceedings. He
contends that the testator’s three granddaughters do
not qualify for an allowance because they are not
incapacitated and are no longer minors but of legal age,
married and gainfully employed. In addition, the
provision expressly states “children” of the deceased
which excludes the latter’s grandchildren.
ISSUE: Whether the probate court, after admitting the
will to probate but before payment of the estate’s debts
and obligations, has the authority to grant an allowance
from the funds of the estate for the support of the
testator’s grandchildren? NO
HELD:
Grandchildren are not entitled to provisional support
Section 3 of Rule 83 of the Revised Rules of Court
provides:
“Sec. 3. Allowance to widow and family. - The widow
and minor or incapacitated children of a deceased
person, during the settlement of the estate, shall
receive therefrom under the direction of the court, such
allowance as are provided by law.”
It is settled that allowances for support under Section 3
of Rule 83 should not be limited to the “minor or
incapacitated” children of the deceased. Article 188 of
the Civil Code of the Philippines, the substantive law in
force at the time of the testator’s death, provides that
during the liquidation of the conjugal partnership, the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
deceased’s legitimate spouse and children, regardless of
their age, civil status or gainful employment, are
entitled to provisional support from the funds of the
estate.The law is rooted on the fact that the right and
duty to support, especially the right to education,
subsist even beyond the age of majority.
Be that as it may, grandchildren are not entitled to
provisional support from the funds of the decedent’s
estate. The law clearly limits the allowance to “widow
and children” and does not extend it to the deceased’s
grandchildren, regardless of their minority or
incapacity.It was error, therefore, for the appellate
court to sustain the probate court’s order granting an
allowance to the grandchildren of the testator pending
settlement of his estate.
Fees Allowed (Rule 85, Sec. 7)
1. Lacson v Reyes
G.R. No. 86250,February 26, 1990
FACTS:
On August 26, 1987, private respondent Atty. Ephraim
Serquina petitioned the RTC of Cavite for the probate of
the last will and testament of Carmelita Farlin. He also
petitioned the court, in his capacity as counsel for the
heirs (herein petitioners) and as executor under said
will. The petition was not opposed, and the RTC issued a
certificate allowance on November 17, 1987.
On March 14, 1988, Atty. Serquina filed a "motion for
attorney's fees" against the petitioners, alleging that
the heirs had agreed to pay, as and for his legal services
rendered, the sum of P68,000.00. Summons were
served upon the heirs "as if it were a complaint against
said heirs" directing them to answer the motion.
Thereafter, the heirs filed their answer and denied the
claim for P68,000.00 alleging that the sum agreed upon
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was only P7,000.00, a sum they had allegedly already
paid.
RTC Cavite ruled in favor of Atty Serquina and ordered
the respondent heirs to pay the sum of P65,000.
Petitioners now question that the decision of the court
is null and void for the following reasons: (1) the
respondent court never acquired jurisdiction over the
"motion for attorney's fees" for failure on the part of
the movant, Ephraim Serquina, to pay docket fees; (2)
the respondent court also gravely abused its discretion
in awarding attorney's fees contrary to the provisions of
Section 7, of Rule 85, of the Rules of Court.
ISSUE: WON RTC was correct in awarding attorney’s
fees of 68K NO
HELD:
First issue: (just in case i-ask)
In that event, the parties should have known, the
respondent court in particular, that docket fees should
have been priorly paid before the court could lawfully
act on the case, and decide it.
It may be true that the claim for attorney's fees was but
an incident in the main case, still, it is not an escape
valve from the payment of docket fees because as in all
actions, whether separate or as an offshoot of a
pending proceeding, the payment of docket fees is
mandatory.
Assuming, therefore, ex gratia argumenti, that Atty.
Serquina's demand for attorney's fees in the sum of
P68,000.00 is valid, he, Atty. Serquina, should have paid
the fees in question before the respondent court could
validly try his "motion".
Second issue:
An attorney who is concurrently an executor of a will is
barred from recovering attorney's fees from the estate
 Case Digest for Special Proceedings
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SEC. 7. What expenses and fees allowed executor or
administrator. Not to charge for services as attorney.
Compensation provided by will controls unless
renounced. — An executor or administrator shall be
allowed the necessary expenses in the care,
management and settlement of the estate, and for his
services, four pesos per day for the time actually and
necessarily employed, or a commission upon the value
of so much of the estate as comes into his possession
and is finally disposed of by him in the payment of
debts, expenses, legacies, or distributive shares, or by
delivery to heirs or devisees, of two per centum of the
first five thousand pesos of such value, one per centum
of so much of such value as exceeds five thousand pesos
and does not exceed thirty thousand pesos, one-half per
centum of so much of such value as exceeds thirty
thousand pesos and does not exceed one hundred
thousand pesos, and one-quarter per centum of so much
of such value as exceeds one hundred thousand pesos.
But in any special case, where the estate is large, and
the settlement has been attended with great difficulty,
and has required a high degree of capacity on the part
of the executor or administrator, a greater sum may be
allowed. If objection to the fees allowed be taken, the
allowance may be reexamined on appeal.
If there are two or more executors or administrators, the
compensation shall be apportioned among them by the
court according to the services actually rendered by
them respectively.
When the executor or administrator is an attorney, he
shall not charge against the estate any professional fees
for legal services rendered by him.
When the deceased by will makes some other provision
for the compensation of his executor, that provision
shall be a full satisfaction for his services unless by a
written instrument filed in the court he renounces all
claim to the compensation provided by the will.
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Administrator/executor is allowed fees but attorney’s
fees should not be recovered from the estate
The rule is therefore clear that an administrator or
executor may be allowed fees for the necessary
expenses he has incurred as such, but he may not
recover attorney's fees from the estate. His
compensation is fixed by the rule but such a
compensation is in the nature of executor's or
administrator's commissions, and never as attorney's
fees. In one case, we held that "a greater sum [other
than that established by the rule] may be allowed 'in
any special case, where the estate is large, and the
settlement has been attended with great difficulty, and
has required a high degree of capacity on the part of
the executor or administrator.'" It is also left to the
sound discretion of the court. With respect to
attorney's fees, the rule, as we have seen, disallows
them. Accordingly, to the extent that the trial court set
aside the sum of P65,000.00 as and for Mr. Serquina's
attorney's fees, to operate as a "lien on the subject
properties," the trial judge must be said to have gravely
abused its discretion (apart from the fact that it never
acquired jurisdiction, in the first place, to act on said
Mr. Serquina's "motion for attorney's fees").
Who shoulders attorney's fees?
In that connection, attorney's fees are in the nature of
actual damages, which must be duly proved. They are
also subject to certain standards, to wit: (1) they must
be reasonable, that is to say, they must have a bearing
on the importance of the subject matter in controversy;
(2) the extent of the services rendered; and (3) the
professional standing of the lawyer. In all cases, they
must be addressed in a full-blown trial and not on the
bare word of the parties. And always, they are subject
to the moderating hand of the courts.
The records show that Atty. Ephraim Serquina, as
counsel for the heirs, performed the following:
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
xxx xxx xxx
5. That after the order of allowance for probate of
the will, the undersigned counsel assisted the heirs to
transfer immediately the above-mentioned real estate
in their respective names, from (sic) the payment of
estate taxes in the Bureau of Internal Revenue to the
issuance by the Registry of Deeds of the titles, in order
for the heirs to sell the foregoing real estate of 10,683
sq. cm (which was also the subject of sale prior to the
death of the testator) to settle testator's obligations and
day-to-day subsistence being (sic) that the heirs, except
Zena F. Velasco, are not employed neither doing any
business;
The Court is not persuaded from the facts above that
Atty. Serquina is entitled to the sum claimed by him
(P68,000.00) or that awarded by the lower court
(P65,000.00). The Court observes that these are acts
performed routinely since they form part of what any
lawyer worth his salt is expected to do. The will was
furthermore not contested. They are not, so Justice
Pedro Tuason wrote, "a case [where] the administrator
was able to stop what appeared to be an improvident
disbursement of a substantial amount without having to
employ outside legal help at an additional expense to
the estate," to entitle him to a bigger compensation. He
did not exactly achieve anything out of the ordinary.
The records also reveal that Atty. Serquina has already
been paid the sum of P6,000.00. It is our considered
opinion that he should be entitled to P15,000.00 for his
efforts on a quantum meruit basis. Hence, we hold the
heirs liable for P9,000.00 more.
Atty Tiu: Ok so that is the general rule, that if the
administrator happens to be a lawyer, he cannot charge
against the estate his fees for services rendered rather
he should charge it to the clients. But if he is not an
administrator like in the case of Quasha, purely legal
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services rendered probably to assist the adminsitrators,
that can be considered as valid fees to be charged in the
estate. Unless it can be shown that the heirs has
specifically hired the lawyers.
2. Quasha Law Office v LCN Construction
G.R. No. 17 487 3, August 26, 2008
Nothing in the records, however, reveals that any one of
FACTS:
the lawyers of Quasha Law Office was indeed a
substitute administrator for Atty. Quasha upon his death.
In the proceedings for the intestate settlement of
Raymond his widow, Amy Consuelo Triviere and
children were represented by Atty. Enrique P. Syquia
(Syquia) and Atty. William H. Quasha (Quasha) of the
Quasha Law Office. Syquia and Quasha were appointed
administrators of the estate of the deceased in April
1988. As administrators, Atty. Syquia and Atty. Quasha
incurred expenses for the payment of real estate taxes,
security services, and the preservation and
administration of the estate, as well as litigation
expenses.
In February 1995, Atty. Syquia and Atty. Quasha filed a
Motion for Payment of their litigation expenses. Citing
their failure to submit an accounting of the assets and
liabilities of the estate under administration, the RTC
denied in May 1995 the Motion for Payment of Atty.
Syquia and Atty. Quasha.
In 1996, Atty. Quasha also passed away. Atty. Redentor
Zapata (Zapata), also of the Quasha Law Office, took
over as the counsel of the Triviere children, and
continued to help Atty. Syquia in the settlement of the
estate.
On 6 September 2002, Atty. Syquia and
Atty. Zapata filed another Motion for Payment, for their
own behalf and for their respective clients, presenting
the following allegations:
Xxx
 Case Digest for Special Proceedings
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Xxx
(7) That Administrator Syquia, who is a lawyer, is
entitled to additional Administrator’s fees since, as
provided in Section 7, Rule 85 of the Revised Rules of
Court:
“x x x where the estate is large, and the settlement has
been attended with great difficulty, and has required a
high degree of capacity on the part of the executor or
administrator, a greater sum may be allowed…”
(8) That considering all the foregoing, especially the
fact that neither the Administrator or his client, the
widow; and the Quasha Law Offices or their clients, the
children of the deceased, have received any money for
more than ten (10) years now, they respectfully move
that the amount of P1Million be taken from the Estate
funds, to be divided as follows:
a) P450,000.00 as share of the children of the
deceased [Triviere] who are represented by the Quasha
Ancheta Peña & Nolasco Law Offices;
b) P200,000.00 as attorney’s fees and
litigation expenses for the Quasha Ancheta Peña &
Nolasco Law Offices;
c) P150,000.00 as share for the widow of the
deceased [Raymond Triviere], Amy Consuelo Triviere;
and
d) P200,000.00 for the administrator Syquia,
who is also the counsel of the widow; and for litigation
costs and expenses.
LCN, as the only remaining claimantagainst the
Intestate Estate of the Late Raymond Triviere filed its
Comment on/Opposition to the Motion .
As to the payment of fees of Atty. Syquia and the
Quasha Law Office, the RTC found as follows:
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[B]oth the Co-Administrator and counsel for the
deceased (sic) are entitled to the payment for the
services they have rendered and accomplished for the
estate and the heirs of the deceased as they have over a
decade now spent so much time, labor and skill to
accomplish the task assigned to them; and the last time
the administrators obtained their fees was in 1992.
Hence, the RTC granted the second Motion for
Payment; however, it reduced the sums to be paid.
On certiorari, the CA ruled that while Atty. Syquia and
the Quasha Law Office, as the administrators of the
estate of the late Raymond Triviere, were entitled to
administrator’s fees and litigation expenses, they could
not claim the same from the funds of the
estate. Referring to Section 7, Rule 85 of the Revised
Rules of Court, the appellate court reasoned that the
award of expenses and fees in favor of executors and
administrators is subject to the qualification that where
the executor or administrator is a lawyer, he shall not
charge against the estate any professional fees for legal
services rendered by him. Instead, the Court of Appeals
held that the attorney’s fees due Atty. Syquia and the
Quasha Law Offices should be borne by their clients, the
widow and children of the late Raymond Triviere,
respectively.
ISSUE: WON petitioners can claim administrator’s fees
and litigation expenses from the estate of the deceased.
NO
Quasha Law Office contends that it is entitled to the
award of attorney’s fees and that the third paragraph of
Section 7, Rule 85 of the Revised Rules of Court, which
reads:
Section 7. What expenses and fees allowed executor or
administrator. Not to charge for services as attorney.
Compensation provided by will controls unless
renounced. x x x.
 Case Digest for Special Proceedings
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xxxx
When the executor or administrator is an attorney, he
shall not charge against the estate any professional fees
for legal services rendered by him.
is inapplicable to it. It’s allegation is that it did not act
as administrator.
HELD:
The circumstances show that Quasha Law did not act
as administrator for the estate
In the pleadings filed by the Quasha Law Office before
the Court of Appeals, it referred to itself as co-
administrator of the estate.
In the Comment submitted to the appellate court by
Atty. Doronila, the member-lawyer then assigned by the
Quasha Law Office to the case, it stated that:
The 12 June 2003 Order granted the Motion for
Payment filed by Co-Administrator and counsel Atty.
Enrique P. Syquia and the counselAtty. Cirilo E.
Doronila and Co-Administrator for the children of the
late Raymond Triviere. x x x.
It would again in the same pleading claim to be the “co-
administrator and counsel for the heirs of the late
Raymond Triviere.”
Finally, the Memorandum it submitted to the Court of
Appeals on behalf of its clients, the petitioner-children
of the late Raymond Triviere, the Quasha Law Office
alleged that:
2. The petition assails the Order of the Honorable
Regional Trial Court of Makati, Branch 63 granting the
Motion for Payment filed by Co-Administrators Atty.
Enrique P. Syquia and the undersigned
counsel together with the children of the deceased
Raymond Triviere, and the Order dated 29 October
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2003 denying Petitioner’s Motion for Reconsideration
of the First Order
xxxx
I. Statement of Antecedent Facts
xxxx
4. On 13 May 2004, Atty. Enrique Syquia, co-
administrator and counsel for respondent Amy
Consuelo Triviere and the undersigned counsel, co-
administrator and counsel for the children of the late
Raymond Triviere filed their Comment.
Quasha Law Office asserts that it is not within the
purview of Section 7, Rule 85 of the Revised Rules of
Court since it is not an appointed administrator of the
estate. When Atty. Quasha passed away in 1996, Atty.
Syquia was left as the sole administrator of the estate of
the late Raymond Triviere. The person of Atty. Quasha
was distinct from that of petitioner Quasha Law Office;
and the appointment of Atty. Quasha as administrator
of the estate did not extend to his law office. Neither
could petitioner Quasha Law Office be deemed to have
substituted Atty. Quasha as administrator upon the
latter’s death for the same would be in violation of the
rules on the appointment and substitution of estate
administrators, particularly, Section 2, Rule 82 of the
Revised Rules of Court. Hence, when Atty. Quasha died,
petitioner Quasha Law Office merely helped in the
settlement of the estate as counsel for the petitioner
children of the late Raymond Triviere.
In its Memorandum before this Court, however,
petitioner Quasha Law Office argues that “what is being
charged are not professional fees for legal services
rendered but payment for administration of the Estate
which has been under the care and management of the
co-administrators for the past fourteen (14) years.”
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
On the other hand, in the Motion for Payment filed with
the RTC on 3 September 2002, petitioner Quasha Law
Office prayed for P200,000.00 as “attorney’s fees and
litigation expenses.” Being lumped together, and
absent evidence to the contrary, theP200,000.00 for
attorney’s fees and litigation expenses prayed for by the
petitioner Quasha Law Office can be logically and
reasonably presumed to be in connection with cases
handled by said law office on behalf of the
estate. Simply, petitioner Quasha Law Office is seeking
attorney’s fees as compensation for the legal services it
rendered in these cases, as well as reimbursement of
the litigation expenses it incurred therein.
The Court notes with disfavor the sudden change in the
theory by petitioner Quasha Law Office. Consistent with
discussions in the preceding paragraphs, Quasha Law
Office initially asserted itself as co-administrator of the
estate before the courts. The records do not belie this
fact. Petitioner Quasha Law Office later on denied it was
substituted in the place of Atty. Quasha as
administrator of the estate only upon filing a Motion for
Reconsideration with the Court of Appeals, and then
again before this Court. As a general rule, a party
cannot change his theory of the case or his cause of
action on appeal. When a party adopts a certain theory
in the court below, he will not be permitted to change
his theory on appeal, for to permit him to do so would
not only be unfair to the other party but it would also
be offensive to the basic rules of fair play, justice and
due process. Points of law, theories, issues and
arguments not brought to the attention of the lower
court need not be, and ordinarily will not be, considered
by a reviewing court, as these cannot be raised for the
first time at such late stage.
This rule, however, admits of certain exceptions. In the
interest of justice and within the sound discretion of the
appellate court, a party may change his legal theory on
appeal, only when the factual bases thereof would not
require presentation of any further evidence by the
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adverse party in order to enable it to properly meet the
issue raised in the new theory.
On the foregoing considerations, this Court finds it
necessary to exercise leniency on the rule against
changing of theory on appeal, consistent with the rules
of fair play and in the interest of justice. Petitioner
Quasha Law Office presented conflicting arguments
with respect to whether or not it was co-administrator
of the estate. Nothing in the records, however, reveals
that any one of the lawyers of Quasha Law Office was
indeed a substitute administrator for Atty. Quasha upon
his death.
The court has jurisdiction to appoint an administrator of
an estate by granting letters of administration to a
person not otherwise disqualified or incompetent to
serve as such, following the procedure laid down in
Section 6, Rule 78 of the Rules of Court.
Corollary thereto, Section 2, Rule 82 of the Rules of
Court provides in clear and unequivocal terms the
modes for replacing an administrator of an estate upon
the death of an administrator, to wit:
Section 2. Court may remove or accept resignation of
executor or administrator. Proceedings upon death,
resignation, or removal. x x x.
When an executor or administrator dies, resigns, or is
removed the remaining executor or administrator may
administer the trust alone,unless the court grants
letters to someone to act with him. If there is no
remaining executor or administrator, administration
may be granted to any suitable person.
The records of the case are wanting in evidence that
Quasha Law Office or any of its lawyers substituted
Atty. Quasha as co-administrator of the estate. None of
the documents attached pertain to the issuance of
letters of administration to petitioner Quasha Law
Office or any of its lawyers at any time after the demise
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
of Atty. Quasha in 1996. This Court is thus inclined to
give credence to petitioner’s contention that while it
rendered legal services for the settlement of the estate
of Raymond Triviere since the time of Atty. Quasha’s
death in 1996, it did not serve as co-administrator
thereof, granting that it was never even issued letters of
administration.
The attorney’s fees, therefore, cannot be covered by
the prohibition in the third paragraph of Section 7, Rule
85 of the Revised Rules of Court against an attorney, to
charge against the estate professional fees for legal
services rendered by them.
Quasha law served as legal counsel
However, while petitioner Quasha Law Office, serving as
counsel of the Triviere children from the time of death
of Atty. Quasha in 1996, is entitled to attorney’s fees
and litigation expenses of P100,000.00 as prayed for in
the Motion for Payment dated 3 September 2002, and
as awarded by the RTC in its 12 June 2003 Order, the
same may be collected from the shares of the Triviere
children, upon final distribution of the estate, in
consideration of the fact that the Quasha Law Office,
indeed, served as counsel (not anymore as co-
administrator), representing and performing legal
services for the Triviere children in the settlement of
the estate of their deceased father.
Atty. T. : So if the administrator who happens to be a
lawyer cannot charge the estate for the services
rendered by him, who should be charged?
He should charge the heirs, who he is representing as in
the case of Quasha.
In that case the lawyers who are asking for
compensation as the administrator or executor of the
estate were not given such compensation, but rather,
the SC said that they are administrator or executor but
they represented the heirs in their claim, so they are
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entitled to an attorney’ s fees and they are not subject
to the exception under section 7 of rule 85
In the case of Quasha, there was a flip flopping in the
position of Quasha law office. First they said that they
were administrators, and they made around and say
they were not administrators, so which is which? Were
they administrators or merely lawyers?
They were merely considered as lawyers.
And who should pay for their services?
The heirs that they represented are the ones liable to
pay for the services
Examination on Accounting (Rule 85, Sec. 9,10,11)
Revocation of Administration ( Rule 82, Sec. 1)
Removal of Executor/ Administrator ( Rule 82, Sec.2 )
Claims Against the Estate ( Rule 86)
RULE 86
Claims Against Estate
Section 1. Notice to creditors to be issued by court. —
Immediately after granting letters testamentary or of
administration, the court shall issue a notice requiring
all persons having money claims against the decedent
to file them in the office of the clerk of said court.
Section 2. Time within which claims shall be filed. — In
the notice provided in the preceding section, the court
shall estate the time for the filing of claims against the
estate, which shall not be more than twelve (12) not
less than six (6) months after the date of the first
publication of the notice. However, at any time before
an order of distribution is entered, on application of a
creditor who has failed to file his claim within the
previously limited, the court may, for cause shown and
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
on such terms as are equitable, allow such claim to be
filed within a time not exceeding one (1) month.
Section 3. Publication of notice to creditors. — Every
executor or administrator shall, immediately after the
notice to creditors is issued, cause the same to be
published three (3) weeks successively in a newspaper
of general circulation in the province, and to be posted
for the same period in four public places in the province
and in two public places in the municipality where the
decedent last resided.
Section 4. Filing of copy of printed notice. — Within ten
(10) days after the notice has been published and
posted in accordance with the preceding section, the
executor or administrator shall file or cause to be filed
in the court a printed copy of the notice accompanied
with an affidavit setting forth the dates of the first and
last publication thereof and the name of the newspaper
in which the same is printed.
Section 5. Claims which must be filed under the
notice. If not filed, barred; exceptions. — All claims for
money against the decent, arising from contract,
express or implied, whether the same be due, not due,
or contingent, all claims for funeral expenses and
expense for the last sickness of the decedent, and
judgment for money against the decent, must be filed
within the time limited in the notice; otherwise they are
barred forever, except that they may be set forth as
counterclaims in any action that the executor or
administrator may bring against the claimants. Where
an executor or administrator commences an action, or
prosecutes an action already commenced by the
deceased in his lifetime, the debtor may set forth by
answer the claims he has against the decedent, instead
of presenting them independently to the court as
herein provided, and mutual claims may be set off
against each other in such action; and if final judgment
is rendered in favor of the defendant, the amount so
determined shall be considered the true balance against
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the estate, as though the claim had been presented
directly before the court in the administration
proceedings. Claims not yet due, or contingent, may be
approved at their present value.
Section 6. Solidary obligation of decedent. — Where the
obligation of the decedent is solidary with another
debtor, the claim shall be filed against the decedent as
if he were the only debtor, without prejudice to the
right of the estate to recover contribution from the
debtor. In a joint obligation of the decedent, the claim
shall be confined to the portion belonging to him.
Section 7. Mortgage debt due from estate. — A creditor
holding a claim against the deceased secured by
mortgage or other colateral security, may abandon the
security and prosecute his claim in the manner provided
in this rule, and share in the general distribution of the
assets of the estate; or he may foreclose his mortgage
or realize upon his security, by action in court, making
the executor or administrator a party defendant, and if
there is a judgment for a deficiency, after the sale of the
mortgaged premises, or the property pledged, in the
foreclosure or other proceeding to realize upon the
security, he may claim his deficiency judgment in the
manner provided in the preceding section or he may
rely upon his mortgage or other security alone, and
foreclosure the same at any time within the period of
the statute of limitations, and in that event he shall not
be admitted as a creditor, and shall receive no share in
the distribution of the other assets of estate; but
nothing herein contained shall prohibit the executor or
administrator from redeeming the property mortgaged
or pledged, by paying the debt for which it is held as
security, under the direction of the court, if the court
shall adjudge it to be for the best interest of the estate
that such redemption shall be made.
Section 8. Claim of executor or administrator against an
estate. — If the executor or administrator has a claim
against the estate he represents, he shall give notice
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thereof, in writing, to the court, and the court shall
appoint a special administrator, who shall, in the
adjustment of such claim, have the same power and be
subject to the same liability as the general administrator
or executor in the settlement of other claims. The court
may order the executor or administrator to pay to the
special administrator necessary funds to defend such
claim.
Section 9. How to file a claim. Contents thereof. Notice
to executor or administrator. — A claim may be filed by
delivering the same with the necessary vouchers to the
clerk of court and by serving a copy thereof on the
executor or administrator. If the claim be founded on a
bond, bill, note, or any other instrument, the original
need not be filed, but a copy thereof with all
indorsements shall be attached to the claim and filed
therewith. On demand, however, of the executor or
administrator, or by order of the court or judge, the
original shall be exhibited, unless it be list or destroyed,
in which case the claimant must accompany his claim
with affidavit or affidavits containing a copy or
particular description of the instrument and stating its
loss or destruction. When the claim is due, it must be
supported by affidavit stating the amount justly due,
that no payments have been made thereon which are
not credited, and that there are no offsets to the same,
to the knowledge of the affiant. If the claim is not due,
or is contingent, when filed, it must also be supported
by affidavits stating the particulars thereof. When the
affidavit is made by a person other than the claimant,
he must set forth therein the reason why it is not made
by the claimant. The claim once filed shall be attached
to the record of the case in which the letters
testamentary or of administration were issued,
although the court, in its discretion, and as a matter of
convenience, may order all the claims to be collected in
a separate folder.
Section 10. Answer of executor or
administrator. Offsets —Within fifteen (15) days after
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service of a copy of the claim on the executor or
administrator, he shall file his answer admitting or
denying the claim specifically, and setting forth the
admission or denial. If he has no knowledge sufficient to
enable him to admit or deny specifically, he shall state
such want of knowledge. The executor or administrator
in his answer shall allege in offset any claim which the
decedent before death had against the claimant, and
his failure to do so shall bar the claim forever. A copy of
the answer shall be served by the executor or
administrator on the claimant. The court in its
discretion may extend the time for filing such answer.
Section 11. Disposition of admitted claim. — Any claim
admitted entirely by the executor or administrator shall
immediately be submitted by the clerk to the court who
may approve the same without hearing; but the court,
in its discretion, before approving the claim, may order
that known heirs, legatees, or devisees be notified and
heard. If upon hearing, an heir, legatees, or devisee
opposes the claim, the court may, in its discretion, allow
him fifteen (15) days to file an answer to the claim in
the manner prescribed in the preceding section.
Section 12. Trial of contested claim. — Upon the filing
of an answer to a claim, or upon the expiration of the
time for such filing, the clerk of court shall set the claim
for trial with notice to both parties. The court may refer
the claim to a commissioner.
Section 13. Judgment appealable. — The judgment of
the court approving or disapproving a claim, shall be
filed with the record of the administration proceedings
with notice to both parties, and is appealable as in
ordinary cases. A judgment against the executor or
administrator shall be that he pay, in due course of
administration, the amount ascertained to be due, and
it shall not create any lien upon the property of the
estate, or give to the judgment creditor any priority of
payment.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Section 14. Costs. — When the executor or
administrator, in his answer, admits and offers to pay
part of a claim, and the claimant refuses to accept the
amount offered in satisfaction of his claim, if he fails to
obtain a more favorable judgment, he cannot recover
costs, but must pay to the executor or administrator
costs from the time of the offer. Where an action
commenced against the deceased for money has been
discontinued and the claim embraced therein presented
as in this rule provided, the prevailing party shall be
allowed the costs of his action up to the time of its
discontinuance.
Notice to Creditors (Rule 86, Sec. 1, 2,3,4,5)
Statute of Non-Claims
1. Santos v Manarang
G.R. No. L-8235, March 19, 1914
ISIDRO SANTOS, plaintiff-appellant, vs. LEANDRA
MANARANG, administratrix, defendant-appellee.
FACTS:
Don Lucas de Ocampo died on November 18,
1906Among the debts mentioned in the list referred to
are two in favor of the plaintiff, Isidro SantosThe will
was duly probated and a committee was regularly
appointed to hear and determine such claims against
the estate as might be presented. This committee
submitted its report to the court on June 1908. On July
14, 1908, the plaintiff, Isidro Santos, presented a
petition to the court asking that the committee be
required to reconvene and pass upon his claims against
the estate which were recognized in the will of testator.
This petition was denied by the court. The plaintiff
instituted the present proceedings against the
administratrix of the estate to recover the sums
mentioned in the will as due him. Relief was denied in
the court below, and now appeals to this court.
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He alleged that his failure was due to his belief that it
was unnecessary to do so because of the fact that the
testator, in his will, expressly recognized them and
directed that they should be paid. The inference is that
had plaintiff's claims not been mentioned in the will he
would have presented to the committee as a matter of
course; that plaintiff was held to believe by this express
mention of his claims in the will that it would be
unnecessary to present them to the committee; and
that he did not become aware of the necessity of
presenting them to the committee until after the
committee had made its final report.
ISSUE: WON the claim of Santos is barred by Statute of
non-claims? YES
HELD:
(claim should have been filed within 6 months from
January 23, 1908 or until July 23, 1908; Santos only filed
his claim on July 14, 1909)
Statute of Non-Claims Explained
Section 689 providesThat court shall allow such
time as the circumstances of the case require
for the creditors to present their claims the
committee for examination and allowance; but
not, in the first instance, more than twelve
months, or less than six months; and the time
allowed shall be stated in the commission. The
court may extend the time as circumstances
require, but not so that the whole time shall
exceed eighteen months.
It cannot be questioned that thus section supersedes
the ordinary limitation of actions provided for in
chapter 3 of the Code. It is strictly confined, in its
application, to claims against the estate of deceased
persons, and has been almost universally adopted as
part of the probate law of the United States. It is
commonly termed the statute of nonclaims, and its
purpose is to settle the affairs of the estate with
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
dispatch, so that residue may be delivered to the
persons entitled thereto without their being afterwards
called upon to respond in actions for claims, which,
under the ordinary statute of limitations, have not yet
prescribed.
The object of the law in fixing a definite period
within which claims must be presented is to
insure the speedy settling of the affairs of a
deceased person and the early delivery of the
property of the estate in the hands of the
persons entitled to receive it. (Estate of De Dios,
24 Phil. Rep., 573.)
Due possibly to the comparative shortness of the period
of limitation applying to such claims as compared with
the ordinary statute of limitations, the statute of
nonclaims has not the finality of the ordinary statute of
limitations. It may be safely said that a saving provision,
more or less liberal, is annexed to the statute of
nonclaims in every jurisdiction where is found. In this
country its saving clause is found in section 690, which
reads as follows:
On application of a creditor who has failed to
present his claim, if made within six months
after the time previously limited, or, if a
committee fails to give the notice required by
this chapter, and such application is made
before the final settlement of the estate, the
court may, for cause shown, and on such terms
as are equitable, renew the commission and
allow further time, not exceeding one month,
for the committee to examine such claim, in
which case it shall personally notify the parties
of the time and place of hearing, and as soon as
may be make the return of their doings to the
court.
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If the committee fails to give the notice required, that is
a sufficient cause for reconvening it for further
consideration of claims which may not have been
presented before its final report was submitted to the
court. But, as stated above, this is not the case made by
the plaintiff, as the committee did give the notice
required by law. Where the proper notice has been
given the right to have the committee recalled for the
consideration of a belated claim appears to rest first
upon the condition that it is presented within six
months after the time previously limited for the
presentation of claims.In the present case the time
previously limited was six months from July 23, 1907.
This allowed the plaintiff until January 23, 1908, to
present his claims to the committee. An extension of
this time under section 690 rested in the discretion of
the court. (Estate of De Dios, supra.) In other words, the
court could extend this time and recall the committee
for a consideration of the plaintiff's claims against the
estate of justice required it, at any time within the six
months after January 23, 1908, or until July 23, 1908.
Plaintiff's petition was not presented until July 14, 1909.
The bar of the statute of nonclaims is an conclusive
under these circumstances as the bar of the ordinary
statute of limitations would be. It is generally held that
claims are not barred as to property not included in the
inventory. (Waughop vs. Bartlett, 165 III., 124; Estate of
Reyes, 17 Phil. Rep., 188.) So also, as indicated by this
court in the case last cited, fraud would undoubtedly
have the same effect. These exceptions to the operation
of the statute are, of course, founded upon the highest
principles of equity. But what is the plea of the plaintiff
in this case? Simply this: That he was laboring under a
mistake of law — a mistake which could easily have
been corrected had he sought to inform himself; a lack
of information as to the law governing the allowance of
claims against estate of the deceased persons which, by
proper diligence, could have been remedied in ample to
present the claims to the committee. Plaintiff finally
discovered his mistake and now seeks to assert his right
 Case Digest for Special Proceedings
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when they have been lost through his own
negligence. Ignorantia legis neminem excusat. We
conclude that the learned trial court made no error in
refusing to reconvene the committee for the purpose of
considering plaintiff's claims against the estate.
Exception to Statute of Non-Claims (Rule 86, Sec.5,7)
Remedies of Mortgagor (Rule 86, Sec. 7)
Claims Not Due, Contingent (Rule 88, Sec. 5)
1. McMicking v Sy Conbieng
G.R. No. L-6871, January 15, 1912!!!!!!!! (pls see full
text)
JOSE McMICKING, administrator of the estate of
Margarita Jose, plaintiff-appellant, vs. BENITO SY
CONBIENG, administrator of the estate of Pio de la
Gurdia Barretto Sy Pioco, defendant-appellee.
FACTS:
Facts: One Engracio Palanca was appointed
administrator of the estate of Margarita Jose. Mariano
Ocampo became one of the sureties of Engracio
Palanca. After the execution of the bond, said Palanca
took possession of all the property of Margarita Jose.
Later on, Mariano Ocampo died, testate. Doroteo
Velasco was appointed administrator of the estate of
Mariano Ocampo while Pio de la Guardia Barretto
(defendant) qualified as one of the sureties of said
Doroteo Velasco.
Doroteo Velasco, as administrator, filed with the court a
complete report and inventory of the property of the
deceased, together with a statement of all his debts and
liabilities. The Court of First Instance affirmed and
approved the partition. Pursuant to such agreement
and order of the court approving the same, Doroteo
Velasco, delivered to the devisees and legatees of
Mariano Ocampo, all of the property of said decedent
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leaving in the hands of said administrator no property
or thing of value whatever belonging to said estate.
Meanwhile, Engracio Palanca was removed from office
as administrator of the estate of Margarita Jose, and
Jose McMicking (plaintiff) was appointed in his stead.
Said Palanca was removed from office by reason of the
fact that he failed and refused to render an account of
the property and funds of the estate of the said
Margarita Jose. At the time of his removal he was
indebted to the estate in the sum of P41,960.15.
For the default of Engracio Palanca, Mcmicking filed a
claim in the amount of 30,000 to the estate of Pio de la
Guardia Barretto as the surety of Doroteo Velasco who
is the administrator of the estate of Mariano Ocampo
who in turn is the surety of said Engracio Palanca.
The lower court dismissed the case and rendered
judgment in favour of defendant.
ISSUE: WON plaintiff may claim against the defendant
as the surety of Doroteo Velasco NO
HELD:
SC affirmed the lower court’s decision. The Court based
their decision upon the ground that Doroteo Velasco,
for whom the deceased Pio de la Guardia Barretto was
surety, would not have been liable himself had this
action been commenced against him. If the principal is
not liable upon the obligation, the surety cannot be.
At the head of the law of administration of the
Philippine Islands stand sections 596 and 597 of the
Code of Civil Procedure. They are as follows:
"SEC. 596.Settlement of intestate estates, without legal
proceedings, in certain cases. — Whenever all the heirs
of a deceased person are of lawful age and legal
capacity, and there are no debts due from the intestate
estate, or all the debts have been paid by the heirs, the
heirs may, by a family council as known under Spanish
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
law, or by agreement between themselves, duly
executed in writing, apportion and divide the estate
among themselves, as they may see fit, without
proceedings in court.
"SEC. 597.In such case distributees liable for debts. —
But if it shall appear, at any time within two years after
such settlement and distribution of the estate, that
there are debts outstanding against the estate which
have not been paid, any creditor may compel the
settlement of the estate in the courts in the manner
hereinafter provided, unless his debt shall be paid, with
interest; and the administrator appointed by the court
may recover the assets of the estate from those who
have received them, for the purpose of paying the debts;
and the real estate belonging to the deceased shall
remain charged with the liability to creditors for the full
period of two years after such distribution,
notwithstanding any transfers thereof that may have
been made."
These sections provide for the voluntary division of the
whole property of the decedent without proceedings in
court. The provisions which they contain are extremely
important. The wisdom which underlies them is
apparent. It is the undisputed policy of every people
which maintains the principle of private ownership of
property that he who owns a thing shall not be deprived
of its possession or use except for the most urgent and
imperative reasons and then only so long as is necessary
to make the rights which underlie those reasons
effective. It is a principle of universal acceptance which
declares that one has the instant right to occupy and
use that which he owns, and it is only in the presence of
reasons of the strongest and most urgent nature that
principle is prevented from accomplishing the purpose
which underlies it. The force which gave birth to this
stern and imperious principle is the same force which
destroyed the feudal despotism and created the
democracy of private owners.
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These provisions should, therefore, be given the most
liberal construction so that the intent of the framers
may be fully carried out. They should not be straitened
or narrowed but should rather be given that wideness
and fullness of application without which they cannot
produce their most beneficial effects.
Standing, as we have said, at the head of the law of
administration of these Islands, they are the first
provisions to which our attention is directed in seeking
a legal method for the division and distribution of the
property of deceased persons. They are thus made
prominent. And justly so. The purpose which underlies
them, as we have already intimated, is to put into one's
hands the property which belongs to him not only at
the earliest possible moment but also with the least
possible expense. By permitting the partition and
division without proceedings in court no time is lost and
substantially all expense and waste are saved. This is as
it should be. The State fails wretchedly in its duty to its
citizens if the machinery furnished by it for the division
and distribution of the property of a decedent is so
cumbersome, unwieldy and expensive that a
considerable portion of the estate is absorbed in the
process of such division. Where administration is
necessary, it ought to be accomplished quickly and at
very small expense; and a system which consumes any
considerable portion of the property which it was
designed to distribute is a failure. It being undoubted
that the removal of property from the possession of its
owner and its deposit in the hands of another for
administration is a suspension of some of his most
important rights of property and is attended with an
expense sometimes entirely useless and unnecessary,
such procedure should be avoided whenever and
wherever possible.
As we have already indicated, the basis of the liability of
a surety on an administrator's bond is the fault or
failure of the principal. The liability of the principal
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
precedes that of the surety. If Velasco incurred no
liability, then his surety incurred none.
2. Hilado v CA
G.R. No. 164108, May 8, 2009
ALFREDO HILADO, LOPEZ SUGAR CORPORATION, FIRST
FARMERS HOLDING CORPORATION, Petitioners, vs. THE
HONORABLE COURT OF APPEALS, THE HONORABLE
AMOR A. REYES, Presiding Judge, Regional Trial Court of
Manila, Branch 21 and ADMINISTRATRIX JULITA
CAMPOS BENEDICTO, Respondents.
FACTS:
Roberto S. Benedicto died intestate and was survived by
his wife, private respondent Julita Campos Benedicto
(administratrix Benedicto), and his only daughter,
Francisca Benedicto-Paulino. At the time of his death,
there were two pending civil cases (quasi delict) against
Benedicto involving the petitioners as plaintiff.
Julita Campos Benedicto filed a petition for the issuance
of letters of administration in her favor, pursuant to
Section 6, Rule 78 of the Revised Rules of Court. The
RTC issued an order Benedicto as administrator of the
estate of her deceased husband, and issuing letters of
administration in her favor.
Petitioners filed with the Manila RTC a
Manifestation/Motion Ex Abundanti Cautela, praying
that they be furnished with copies of all processes and
orders pertaining to the intestate proceedings. Private
respondent opposed the manifestation/motion,
disputing the personality of petitioners to intervene in
the intestate proceedings of her husband.
The RTC issued an order denying the
manifestation/motion, on the ground that petitioners
are not interested parties within the contemplation of
the Rules of Court (Rule 19) to intervene in the intestate
proceedings.
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Certiorari on CA was dismissed.
ISSUE:
Based on outline: WON a contingent creditor may be
allowed to intervene . YES but to a limited extent
(please read Conclusion part )
What are the rights/ remedies available to a contingent
creditor?
HELD:
Rule on Intervention under Rule 19 not applicable in
Special Proceedings
Section 1 of Rule 19 of the 1997 Rules of Civil
Procedure requires that an intervenor “has a legal
interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court
x x x” While the language of Section 1, Rule 19 does not
literally preclude petitioners from intervening in the
intestate proceedings, case law has consistently held
that the legal interest required of an intervenor “must
be actual and material, direct and immediate, and not
simply contingent and expectant.”
Nonetheless, it is not immediately evident that
intervention under the Rules of Civil Procedure
necessarily comes into operation in special proceedings.
The settlement of estates of deceased persons fall
within the rules of special proceedings under the Rules
of Court, not the Rules on Civil Procedure. Section 2,
Rule 72 further provides that “*i+n the absence of
special provisions, the rules provided for in ordinary
actions shall be, as far as practicable, applicable to
special proceedings.”
We can readily conclude that notwithstanding Section
2 of Rule 72, intervention as set forth under Rule 19
does not extend to creditors of a decedent whose credit
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
is based on a contingent claim. The definition of
“intervention” under Rule 19 simply does not
accommodate contingent claims.
Yet, even as petitioners now contend before us that
they have the right to intervene in the intestate
proceedings of Roberto Benedicto, the reliefs they had
sought then before the RTC, and also now before us, do
not square with their recognition as intervenors. In
short, even if it were declared that petitioners have no
right to intervene in accordance with Rule 19, it would
not necessarily mean the disallowance of the reliefs
they had sought before the RTC since the right to
intervene is not one of those reliefs.
“Interested Person” under Rules on Special
Proceedings
To better put across what the ultimate disposition of
this petition should be, let us now turn our focus to the
Rules on Special Proceedings.
In several instances, the Rules on Special Proceedings
entitle “any interested persons” or “any persons
interested in the estate” to participate in varying
capacities in the testate or intestate proceedings.
Petitioners cite these provisions before us, namely: (1)
Section 1, Rule 79, which recognizes the right of “any
person interested” to oppose the issuance of letters
testamentary and to file a petition for administration;”
(2) Section 3, Rule 79, which mandates the giving of
notice of hearing on the petition for letters of
administration to the known heirs, creditors, and “to
any other persons believed to have interest in the
estate;” (3) Section 1, Rule 76, which allows a “person
interested in the estate” to petition for the allowance of
a will; (4) Section 6 of Rule 87, which allows an
individual interested in the estate of the deceased “to
complain to the court of the concealment,
embezzlement, or conveyance of any asset of the
decedent, or of evidence of the decedent’s title or
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interest therein;” (5) Section 10 of Rule 85, which
requires notice of the time and place of the
examination and allowance of the Administrator’s
account “to persons interested;” (6) Section 7(b) of Rule
89, which requires the court to give notice “to the
persons interested” before it may hear and grant a
petition seeking the disposition or encumbrance of the
properties of the estate; and (7) Section 1, Rule 90,
which allows “any person interested in the estate” to
petition for an order for the distribution of the residue
of the estate of the decedent, after all obligations are
either satisfied or provided for.
In a pending civil case against decedent , it is proper to
implead the estate, as represented by the
administrator, in the civil case
Had the claims of petitioners against Benedicto been
based on contract, whether express or implied, then
they should have filed their claim, even if contingent,
under the aegis of the notice to creditors to be issued
by the court immediately after granting letters of
administration and published by the administrator
immediately after the issuance of such notice. However,
it appears that the claims against Benedicto were based
on tort, as they arose from his actions in connection
with Philsucom, Nasutra and Traders Royal Bank. Civil
actions for tort or quasi-delict do not fall within the
class of claims to be filed under the notice to creditors
required under Rule 86. These actions, being as they are
civil, survive the death of the decedent and may be
commenced against the administrator pursuant to
Section 1, Rule 87. Indeed, the records indicate that the
intestate estate of Benedicto, as represented by its
administrator, was successfully impleaded in Civil Case
No. 11178, whereas the other civil case was already
pending review before this Court at the time of
Benedicto’s death.
Evidently, the merits of petitioners’ claims against
Benedicto are to be settled in the civil cases where they
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
were raised, and not in the intestate proceedings. In the
event the claims for damages of petitioners are granted,
they would have the right to enforce the judgment
against the estate. Yet until such time, to what extent
may they be allowed to participate in the intestate
proceedings?
Petitioners place heavy reliance on our ruling
in Dinglasan v. Ang Chia, and it does provide us with
guidance on how to proceed. A brief narration of the
facts therein is in order.
Suspension of the closing of the intestate proceeding pending
determination of a related civil case is justified
Dinglasan had filed an action for reconveyance and
damages against respondents, and during a hearing of
the case, learned that the same trial court was hearing
the intestate proceedings of Lee Liong to whom
Dinglasan had sold the property years earlier. Dinglasan
thus amended his complaint to implead Ang Chia,
administrator of the estate of her late husband. He
likewise filed a verified claim-in-intervention,
manifesting the pendency of the civil case, praying that
a co-administrator be appointed, the bond of the
administrator be increased, and that the intestate
proceedings not be closed until the civil case had been
terminated. When the trial court ordered the increase of
the bond and took cognizance of the pending civil case,
the administrator moved to close the intestate
proceedings, on the ground that the heirs had already
entered into an extrajudicial partition of the estate. The
trial court refused to close the intestate proceedings
pending the termination of the civil case, and the Court
affirmed such action.
If the appellants filed a claim in intervention in the
intestate proceedings it was only pursuant to their
desire to protect their interests it appearing that the
property in litigation is involved in said proceedings
and in fact is the only property of the estate left
subject of administration and distribution; and the
court is justified in taking cognizance of said civil case
because of the unavoidable fact that whatever is
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determined in said civil case will necessarily reflect and
have a far reaching consequence in the determination
and distribution of the estate. In so taking cognizance
of civil case No. V-331 the court does not assume
general jurisdiction over the case but merely makes of
record its existence because of the close interrelation of
the two cases and cannot therefore be branded as
having acted in excess of its jurisdiction.
Appellants' claim that the lower court erred in holding in
abeyance the closing of the intestate proceedings
pending determination of the separate civil action for
the reason that there is no rule or authority justifying
the extension of administration proceedings until after
the separate action pertaining to its general jurisdiction
has been terminated, cannot be entertained. Section 1,
Rule 88, of the Rules of Court, expressly provides that
"action to recover real or personal property from the
estate or to enforce a lien thereon, and actions to
recover damages for an injury to person or property,
real or personal, may be commenced against the
executor or administrator." What practical value would
this provision have if the action against the
administrator cannot be prosecuted to its termination
simply because the heirs desire to close the intestate
proceedings without first taking any step to settle the
ordinary civil case? This rule is but a corollary to the
ruling which declares that questions concerning
ownership of property alleged to be part of the estate
but claimed by another person should be determined in
a separate action and should be submitted to the court
in the exercise of its general jurisdiction. These rules
would be rendered nugatory if we are to hold that an
intestate proceedings can be closed by any time at the
whim and caprice of the heirs x x x
It is not clear whether the claim-in-intervention filed by
Dinglasan conformed to an action-in-intervention under
the Rules of Civil Procedure, but we can partake of the
spirit behind such pronouncement. Indeed, a few years
later, the Court, citing Dinglasan, stated: “[t]he rulings
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
of this court have always been to the effect that in the
special proceeding for the settlement of the estate of a
deceased person, persons not heirs, intervening
therein to protect their interests are allowed to do so
to protect the same, but not for a decision on their
Kasi nga sa separate proceeding dapat (
action.” Rule88),so pwede niya mapasuspend ang closing
the proceeding
Petitioners’ interests in the estate of Benedicto may be
inchoate interests, but they are viable interests
nonetheless. We are mindful that the Rules of Special
Proceedings allows not just creditors, but also “any
person interested” or “persons interested in the estate”
various specified capacities to protect their respective
interests in the estate. Anybody with a contingent claim
based on a pending action for quasi-delict against a
decedent may be reasonably concerned that by the
time judgment is rendered in their favor, the estate of
the decedent would have already been distributed, or
diminished to the extent that the judgment could no
longer be enforced against it.
Standing rule
Since no specific right is given to herein petitioners
they may be allowed to seek certain prayers or reliefs
from the intestate court not explicitly provided for
under the Rules, if the prayer or relief sought is
necessary to protect their interest in the estate, and
there is no other modality under the Rules by which
such interests can be protected.
In the same manner that the Rules on Special
Proceedings do not provide a creditor or any person
interested in the estate, the right to participate in every
aspect of the testate or intestate proceedings, but
instead provides for specific instances when such
persons may accordingly act in those proceedings, we
deem that while there is no general right to intervene
on the part of the petitioners, they may be allowed to
seek certain prayers or reliefs from the intestate court
not explicitly provided for under the Rules, if the prayer
or relief sought is necessary to protect their interest in
the estate, and there is no other modality under the
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Rules by which such interests can be protected. It is
under this standard that we assess the three prayers
sought by petitioners.
The first is that petitioners be furnished with copies of
all processes and orders issued in connection with the
intestate proceedings, as well as the pleadings filed by
the administrator of the estate. There is no questioning
as to the utility of such relief for the petitioners. They
would be duly alerted of the developments in the
intestate proceedings, including the status of the assets
of the estate. Such a running account would allow them
to pursue the appropriate remedies should their
interests be compromised, such as the right, under
Section 6, Rule 87, to complain to the intestate court if
property of the estate concealed, embezzled, or
fraudulently conveyed.
At the same time, the fact that petitioners’ interests
remain inchoate and contingent counterbalances their
ability to participate in the intestate proceedings. We
are mindful of respondent’s submission that if the Court
were to entitle petitioners with service of all processes
and pleadings of the intestate court, then anybody
claiming to be a creditor, whether contingent or
otherwise, would have the right to be furnished such
pleadings, no matter how wanting of merit the claim
may be. Indeed, to impose a precedent that would
mandate the service of all court processes and
pleadings to anybody posing a claim to the estate, much
less contingent claims, would unduly complicate and
burden the intestate proceedings, and would ultimately
offend the guiding principle of speedy and orderly
disposition of cases.
Fortunately, there is a median that not only exists, but
also has been recognized by this Court, with respect to
the petitioners herein, that addresses the core concern
of petitioners to be apprised of developments in the
intestate proceedings. In Hilado v. Judge Reyes, the
Court heard a petition for mandamus filed by the same
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
petitioners herein against the RTC judge, praying that
they be allowed access to the records of the intestate
proceedings, which the respondent judge had denied
from them. Section 2 of Rule 135 came to fore, the
provision stating that “the records of every court of
justice shall be public records and shall be available for
the inspection of any interested person x x x.” The Court
ruled that petitioners were “interested persons”
entitled to access the court records in the intestate
proceedings. We said:
Contingent creditors are allowed to access the records
of the settlement proceeding
Petitioners' stated main purpose for accessing the
records to—monitor prompt compliance with the Rules
governing the preservation and proper disposition of
the assets of the estate, e.g., the completion and
appraisal of the Inventory and the submission by the
Administratrix of an annual accounting—appears
legitimate, for, as the plaintiffs in the complaints for
sum of money against Roberto Benedicto, et al., they
have an interest over the outcome of the settlement of
his estate. They are in fact "interested persons" under
Rule 135, Sec. 2 of the Rules of Court x x x
Allowing creditors, contingent or otherwise, access to
the records of the intestate proceedings is an eminently
preferable precedent than mandating the service of
court processes and pleadings upon them. In either
case, the interest of the creditor in seeing to it that the
assets are being preserved and disposed of in
accordance with the rules will be duly satisfied.
Acknowledging their right to access the records, rather
than entitling them to the service of every court order
or pleading no matter how relevant to their individual
claim, will be less cumbersome on the intestate court,
the administrator and the heirs of the decedent, while
providing a viable means by which the interests of the
creditors in the estate are preserved.
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Nonetheless, in the instances that the Rules on Special
Proceedings do require notice to any or all “interested
parties” the petitioners as “interested parties” will be
entitled to such notice. The instances when notice has
to be given to interested parties are provided in: (1) Sec.
10, Rule 85 in reference to the time and place of
examining and allowing the account of the executor or
administrator; (2) Sec. 7(b) of Rule 89 concerning the
petition to authorize the executor or administrator to
sell personal estate, or to sell, mortgage or otherwise
encumber real estates; and; (3) Sec. 1, Rule 90
regarding the hearing for the application for an order
for distribution of the estate residue. After all, even the
administratrix has acknowledged in her submitted
inventory, the existence of the pending cases filed by
the petitioners.
Contingent creditor cannot compel administrator to
submit appraisal and inventory
We now turn to the remaining reliefs sought by
petitioners; that a deadline be set for the submission
by administratrix Benedicto to submit a verified and
complete inventory of the estate, and upon submission
thereof: the inheritance tax appraisers of the Bureau of
Internal Revenue be required to assist in the appraisal
of the fair market value of the same; and that the
intestate court set a deadline for the submission by the
administratrix of her verified annual account, and, upon
submission thereof, set the date for her examination
under oath with respect thereto, with due notice to
them and other parties interested in the collation,
preservation and disposition of the estate. We cannot
grant said reliefs.
Section 1 of Rule 83 requires the administrator to
return to the court a true inventory and appraisal of all
the real and personal estate of the deceased within
three (3) months from appointment, while Section 8 of
Rule 85 requires the administrator to render an account
of his administration within one (1) year from receipt of
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the letters testamentary or of administration. We do
not doubt that there are reliefs available to compel an
administrator to perform either duty, but a person
whose claim against the estate is still contingent is not
the party entitled to do so. Still, even if the
administrator did delay in the performance of these
duties in the context of dissipating the assets of the
estate, there are protections enforced and available
under Rule 88 to protect the interests of those with
contingent claims against the estate.
Contingent creditor has the right to seek removal of
administrator on certain grounds
Concerning complaints against the general competence
of the administrator, the proper remedy is to seek the
removal of the administrator in accordance with Section
2, Rule 82. While the provision is silent as to who may
seek with the court the removal of the administrator,
we do not doubt that a creditor, even a contingent one,
would have the personality to seek such relief. After all,
the interest of the creditor in the estate relates to the
preservation of sufficient assets to answer for the debt,
and the general competence or good faith of the
administrator is necessary to fulfill such purpose.
Conclusion : CA and RTC are correct in ruling that
intervention is not proper as petitioners is not a real
party in interest . Nonetheless, they may be allowed to
seek certain prayers or reliefs from the intestate court
not explicitly provided for under the Rules, if the prayer
or relief sought is necessary to protect their interest in
the estate, and there is no other modality under the
Rules by which such interests can be protected kasi
daw these claims, although contingent, are still viable.
3. Sheker v Estate of Alice Sheker
G.R. No. 157912, December 13, 2007
FACTS:
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RTC admitted to probate the holographic will of Alice
O. Sheker and thereafter issued an order for all the
creditors to file their respective claims against the
estate. In compliance therewith, petitioner(Alan) filed a
contingent claim for agent's commission due him and a
certain amount as reimbursement for expenses
incurred and/or to be incurred by petitioner in the
course of negotiating the sale of said realties.
The executrix of the Estate of Alice
O. Sheker (respondent) moved for the dismissal of said
money claim against the estate on the grounds that (1)
the requisite docket fee, as prescribed in Section 7(a),
Rule 141 of the Rules of Court, had not been paid; (2)
petitioner failed to attach a certification against non-
forum shopping; and (3) petitioner failed to attach a
written explanation why the money claim was not filed
and served personally.
On January 15, 2003, the RTC issued the assailed Order
dismissing without prejudice the money claim based on
the grounds advanced by respondent.
Petitioner maintains that the RTC erred in strictly
applying to a probate proceeding the rules requiring a
certification of non-forum shopping, a written
explanation for non-personal filing, and the payment of
docket fees upon filing of the claim. He insists that
Section 2, Rule 72 of the Rules of Court provides that
rules in ordinary actions are applicable to special
proceedings only in a suppletory manner.
ISSUE: WON the RTC was correct in dismissing the
petitioners claim? NO
HELD:
Petitioner's contention that rules in ordinary actions
are only supplementary to rules in special proceedings
is not entirely correct
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Sec. 2. Applicability of rules of Civil Actions. - In the
absence of special provisions, the rules provided for in
ordinary actions shall be, as far as practicable,
applicable in special proceedings.
Stated differently, special provisions under Part II of the
Rules of Court govern special proceedings; but in the
absence of special provisions, the rules provided for in
Part I of the Rules governing ordinary civil actions shall
be applicable to special proceedings, as far as
practicable.
The word “practicable” is defined as: possible to
practice or perform; capable of being put into practice,
done or accomplished.This means that in the absence of
special provisions, rules in ordinary actions may be
applied in special proceedings as much as possible and
where doing so would not pose an obstacle to said
proceedings. Nowhere in the Rules of Court does it
categorically say that rules in ordinary actions are
inapplicable or merely suppletory to special
proceedings. Provisions of the Rules of Court requiring a
certification of non-forum shopping for complaints and
initiatory pleadings, a written explanation for non-
personal service and filing, and the payment of filing
fees for money claims against an estate would not in
any way obstruct probate proceedings, thus, they are
applicable to special proceedings such as the settlement
of the estate of a deceased person as in the present
case.
CNFS not required for the filing of money claims
against estate
The certification of non-forum shopping is required
only for complaints and other initiatory pleadings. The
RTC erred in ruling that a contingent money claim
against the estate of a decedent is an initiatory
pleading. In the present case,the whole probate
proceeding was initiated upon the filing of the petition
for allowance of the decedent's will. Under Sections 1
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and 5, Rule 86 of the Rules of Court, after granting
letters of testamentary or of administration, all persons
having money claims against the decedent are
mandated to file or notify the court and the estate
administrator of their respective money claims;
otherwise, they would be barred, subject to certain
exceptions.
A money claim is only an incidental matter in the main
action for the settlement of the decedent's estate;
more so if the claim is contingent since the claimant
cannot even institute a separate action for a mere
contingent claim. Hence, herein petitioner's
contingent money claim, not being an initiatory
pleading, does not require a certification against non-
forum shopping.
On the issue of filing fees
the Court ruled in Pascual v. Court of Appeals, that the
trial court has jurisdiction to act on a money claim
(attorney's fees) against an estate for services rendered
by a lawyer to the administratrix to assist her in fulfilling
her duties to the estate even without payment of
separate docket fees because the filing fees shall
constitute a lien on the judgment pursuant to Section 2,
Rule 141 of the Rules of Court, or the trial court may
order the payment of such filing fees within a
reasonable time. After all, the trial court had already
assumed jurisdiction over the action for settlement of
the estate. Clearly, therefore, non-payment of filing
fees for a money claim against the estate is not one of
the grounds for dismissing a money claim against the
estate.
With regard to the requirement of a written
explanation,
If only to underscore the mandatory nature of this
innovation to our set of adjective rules requiring
personal service whenever practicable, Section 11 of
Rule 13 then gives the court the discretion to consider
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
a pleading or paper as not filed if the other modes of
service or filing were not resorted to and no written
explanation was made as to why personal service was
not done in the first place. The exercise of discretion
must, necessarily consider the practicability of
personal service, for Section 11 itself begins with the
clause “whenever practicable”.
We thus take this opportunity to clarify that
under Section 11, Rule 13 of the 1997 Rules of Civil
Procedure, personal service andfiling is the general rule,
and resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or
filing is practicable, in the light of the circumstances of
time, place and person, personal service or filing
is mandatory. Only when personal service or filing is
not practicable may resort to other modes be had,
which must then be accompanied by a written
explanation as to why personal service or filing was not
practicable to begin with. In adjudging the plausibility
of an explanation, a court shall likewise consider the
importance of the subject matter of the case or the
issues involved therein, and the prima facie merit of the
pleading sought to be expunged for violation of Section
11. (Emphasis and italics supplied)
In the present case, petitioner holds office
in Salcedo Village, Makati City, while counsel for
respondent and the RTC which rendered the assailed
orders are both in Iligan City. The lower court should
have taken judicial notice of the great distance between
said cities and realized that it is indeed not practicable
to serve and file the money claim personally.
Processing Cliams
Filing of Claims (Rule 86, Sec. 9)
1. Sheker v Estate of Alice Sheker (pls refer to previous
digest)
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Answer (Rule 86, Sec. 10)
Approval of Admitted Claims (Rule 86, Sec. 11)
Trial of Contested Claims ( Rule 86, Sec. 12)
Judgment (Rule 86, Sec. 13)
Costs ( Rule 86, Sec. 14)
Actions that Survive (Rule 87, Sec. 1)
Who May File? (Rule 87, Sec. 1,3)
RULE 87
Actions By and Against Executors and Administrators
Section 1. Actions which may and which may not be
brought against executor or administrator. — No action
upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the
executor or administrator; but to recover real or
personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property,
real or personal, may be commenced against him.
Section 2. Executor or administrator may bring or
defend actions which survive. — For the recovery or
protection of the property or rights of the deceased, an
executor or administrator may bring or defend, in the
right of deceased, actions for causes which survive.
Section 3. Heir may not sue until shall assigned — When
an executor or administrator is appointed and assumes
the trust, no action to recover the title or possession of
lands or for damages done to such lands shall be
maintained against him by an heir or devisee until there
is an order of the court assigning such lands to such heir
or devisee or until the time allowed for paying debts has
expired.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Section 4. Executor or administrator may compound
with debtor. — Within the approval of the court, an
executor or administrator may compound with the
debtor of the deceased for a debt due, and may give a
discharge of such debt on receiving a just dividend of
the estate of the debtor.
Section 5. Mortgage due estate may be foreclosed. — A
mortgage belonging to the estate of a deceased person,
as mortgagee or assignee of the right or a mortgage,
may be foreclosed by the executor or administrator.
Section 6. Proceedings when property concealed,
embezzled, or fraudulently conveyed. — If an executor
or administrator, heir, legatee, creditor or other
individual interested in the estate of the deceased,
complains to the court having jurisdiction of the estate
that a person is suspected of having concealed,
embezzled, or conveyed away any of the money, goods,
or chattels of the deceased, or that such person has in
his possession or has knowledge of any deed,
conveyance, bond, contract, or other writing which
contains evidence of or tends or discloses the right,
title, interest, or claim of the deceased, the court may
cite such suspected person to appear before it any may
examine him on oath on the matter of such complaint;
and if the person so cited refuses to appear, or to
answer on such examination or such interrogatories as
are put to him, the court may punish him for contempt,
and may commit him to prison until he submits to the
order of the court. The interrogatories put any such
person, and his answers thereto, shall be in writing and
shall be filed in the clerk's office.
Section 7. Person entrusted with estate compelled to
render account. — The court, on complaint of an
executor or administrator, may cite a person entrusted
by an executor or administrator with any part of the
estate of the deceased to appear before it, and may
require such person to render a full account, on oath, of
the money, goods, chattels, bonds, account, or other
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papers belonging to such estate as came to his
possession in trust for such executor or administrator,
and of his proceedings thereon; and if the person so
cited refuses to appear to render such account, the
court may punish him for contempt as having disobeyed
a lawful order of the court.
Section 8. Embezzlement before letters issued — If a
person, before the granting of letters testamentary or
of administration on the estate of the deceased,
embezzles or alienates any of the money, goods,
chattels, or effects of such deceased, such person shall
be liable to an action in favor of the executor or
administrator of the estate for double the value of the
property sold, embezzled, or alienated, to be recovered
for the benefit of such estate.
Section 9. Property fraudulently conveyed by deceased
may be recovered. When executor or administrator
must bring action. — When there is a deficiency of
assets in the hands of an executor or administrator for
the payment of debts and expenses of administration,
and the deceased in his lifetime had conveyed real or
personal property, or a right or interest therein, or an
debt or credit, with intent to defraud his creditors or to
avoid any right, debt, or duty; or had so conveyed such
property, right, interest, debt or credit that by law the
conveyance would be void as against his creditors, and
the subject of the attempted conveyance would be
liable to attachment by any of them in his lifetime, the
executor or administrator may commence and
prosecute to final judgment an action for the recovery
of such property, right, interest, debt, or credit for the
benefit of the creditors; but he shall not be bound to
commence the action unless on application of the
creditors of the deceased, not unless the creditors
making the application pay such part of the costs and
expenses, or give security therefor to the executor or
administrator, as the court deems equitable.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Section 10. When creditor may bring action. Lien for
costs. — When there is such a deficiency of assets, and
the deceased in his lifetime had made or attempted
such a conveyance, as is stated in the last preceding
section, and the executor or administrator has not
commenced the action therein provided for, any
creditor of the estate may, with the permission of the
court, commence and prosecute to final judgment, in
the name of the executor or administrator, a like action
for the recovery of the subject of the conveyance or
attempted conveyance for the benefit of the creditors.
But the action shall not be commenced until the
creditor has filed in a court a bond executed to the
executor or administrator, in an amount approved by
the judge, conditioned to indemnify the executor or
administrator against the costs and expenses incurred
by reason of such action. Such creditor shall have a lien
upon any judgment recovered by him in the action for
such costs and other expenses incurred therein as the
court deems equitable. Where the conveyance or
attempted conveyance had been made by the deceased
in his lifetime in favor of the executor or administrator,
the action which a credit may bring shall be in the name
of all the creditors, and permission of the court and
filing of bond as above prescribed, are not necessary.
1. Rioferio v CA
G.R. No. 129008 January 13, 2004
TEODORA A. RIOFERIO, VERONICA O. EVANGELISTA
assisted by her husband ZALDY EVANGELISTA, ALBERTO
ORFINADA, and ROWENA O. UNGOS, assisted by her
husband BEDA UNGOS, petitioners, vs. COURT OF
APPEALS, ESPERANZA P. ORFINADA, LOURDES P.
ORFINADA, ALFONSO ORFINADA, NANCY P. ORFINADA,
ALFONSO JAMES P. ORFINADA, CHRISTOPHER P.
ORFINADA and ANGELO P. ORFINADA, respondents.
FACTS:
Alvar, Ceballo, Cuabo
3Manresa
On May 13, 1995, Alfonso P. Orfinada, Jr. died intestate.
He left a widow, Esperanza P. Orfinada, whom with
whom he had seven children namely: Lourdes P.
Orfinada, Alfonso "Clyde" P. Orfinada, Nancy P.
Orfinada-Happenden, Alfonso James P. Orfinada,
Christopher P. Orfinada, Alfonso Mike P. Orfinada
(deceased) and Angelo P. Orfinada.
The deceased also has a paramour ,Teodora Riofero,
and illegitimate children namely: Veronica, Alberto and
Rowena.
On November 14, 1995, Alfonso James and Lourdes
Orfinada discovered that on June 29, 1995, Teodora
Rioferio and her children executed an Extrajudicial
Settlement of Estate of a Deceased Person with
Quitclaim involving the properties of the estate of the
decedent located in Dagupan City and that accordingly,
the Registry of Deeds in Dagupan issued Certificates of
Titles Nos. 63983, 63984 and 63985 in favor of Teodora
Rioferio, Veronica Orfinada-Evangelista, Alberto
Orfinada and Rowena Orfinada-Ungos. Alfonso and
Lourdes also found out that Teodora et.al. were able to
obtain a loan of P700,000.00 from the Rural Bank of
Mangaldan Inc. by executing a Real Estate
Mortgage over the properties subject of the extra-
judicial settlement.
On December 1, 1995, Alfonso "Clyde" P. Orfinada III
filed a Petition for Letters of Administration .
While the abovementioned Special Proceeding was
pending, the rest of the Orfinada children filed
a Complaint for the Annulment/Rescission of Extra
Judicial Settlement of Estate of a Deceased Person with
Quitclaim, Real Estate Mortgage and Cancellation of
Transfer Certificate of Titles with Nos. 63983, 63985 and
63984 and Other Related Documents with Damages
against Teodora et.al., the Rural Bank of Mangaldan,
Inc. and the Register of Deeds of Dagupan City .
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Teodora raised , by way of affirmative defense, that
Orifnada et.al are not the real parties-in-interest but
rather the Estate of Alfonso O. Orfinada, Jr. in view of
the pendency of the administration proceedings.
The Trial Court denied Teodora’s motion to set the case
for preliminary hearing on her affirmative defense
holding that Orfinada etl al ,as heirs, are the real
parties-in-interest especially in the absence of an
administrator who is yet to be appointed .
The CA likewise ruled against Teodora hence this
petition.
ISSUE: WON the heirs are the real parties in interest in a
suit to recover property of the estate pending the
appointment of an administrator.
HELD:
(Procedural) The holding of a preliminary hearing on
an affirmative defense is discretionary
SEC. 5. Pleadings grounds as affirmative defenses.- Any
of the grounds for dismissal provided for in this rule,
except improper venue, may be pleaded as an
affirmative defense, and a preliminary hearing may be
had thereon as if a motion to dismiss had been filed.
Certainly, the incorporation of the word "may" in the
provision is clearly indicative of the optional character
of the preliminary hearing. The word denotes discretion
and cannot be construed as having a mandatory effect.
Subsequently, the electivity of the proceeding was
firmed up beyond cavil by the 1997 Rules of Civil
Procedure with the inclusion of the phrase "in the
discretion of the Court", apart from the retention of the
word "may" in Section 6, in Rule 16 thereof.
Pending the filing of administration proceedings, the
heirs have legal personality to bring suit in behalf of
the estate of the decedent under Art. 777 of the Civil
Code
Alvar, Ceballo, Cuabo
3Manresa
The Trial Court cannot be faulted for recognizing the
legal standing of the respondents as heirs to bring the
suit.
Pending the filing of administration proceedings, the
heirs without doubt have legal personality to bring suit
in behalf of the estate of the decedent in accordance
with the provision of Article 777 of the New Civil Code
"that (t)he rights to succession are transmitted from the
moment of the death of the decedent." The provision in
turn is the foundation of the principle that the property,
rights and obligations to the extent and value of the
inheritance of a person are transmitted through his
death to another or others by his will or by operation of
law.
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an
administrator has not yet been appointed.
This is the proper modality despite the total lack of
advertence to the heirs in the rules on party
representation, namely Section 3, Rule 3 and Section 2,
Rule 87of the Rules of Court. In fact, in the case
of Gochan v. Young, this Court recognized the legal
standing of the heirs to represent the rights and
properties of the decedent under administration
pending the appointment of an administrator. Thus:
The above-quoted rules, while permitting an executor
or administrator to represent or to bring suits on behalf
of the deceased, do not prohibit the heirs from
representing the deceased. These rules are easily
applicable to cases in which an administrator has
already been appointed. But no rule categorically
addresses the situation in which special proceedings for
the settlement of an estate have already been
instituted, yet no administrator has been appointed. In
such instances, the heirs cannot be expected to wait for
the appointment of an administrator; then wait further
to see if the administrator appointed would care
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
enough to file a suit to protect the rights and the
interests of the deceased; and in the meantime do
nothing while the rights and the properties of the
decedent are violated or dissipated.
There are also instances when even if there is an
administrator or executor, the heirs may still bring the
suit in behalf of the estate
Even if there is an appointed administrator,
jurisprudence recognizes two exceptions, viz: (1) if the
executor or administrator is unwilling or refuses to
bring suit;and (2) when the administrator is alleged to
have participated in the act complained of and he is
made a party defendant. Evidently, the necessity for the
heirs to seek judicial relief to recover property of the
estate is as compelling when there is no appointed
administrator, if not more, as where there is an
appointed administrator but he is either disinclined to
bring suit or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no legal
standing to sue for the recovery of property of the
estate during the pendency of administration
proceedings has three exceptions, the third being when
there is no appointed administrator such as in this case.
Actions on behalf of Estate ( Rule 87, Sec. 5, 8)
Actions on behalf of Creditors ( Rule 87, Sec. 9, 10)
Proceedings under Rule 87 Sec 6
2. Chua v Absolute Management Corporation
G.R. No. 144881, October 16, 2003
BETTY T. CHUA, JENNIFER T. CHUA-LOCSIN, BENISON T.
CHUA, and BALDWIN T. CHUA, petitioners
vs. ABSOLUTE MANAGEMENT CORPORATION and
COURT OF APPEALS, respondents.
FACTS:
Betty T. Chua was appointed as administratrix of the
intestate estate of the deceased Jose L. Chua.
Alvar, Ceballo, Cuabo
3Manresa
One of the creditors of the deceased, Absolute
Management Corporation (respondent) , filed a claim
on the estate in the amount of P63,699,437.74. As
administratrix, Betty T. Chua tentatively accepted said
amount as correct, with a statement that it shall be
reduced or adjusted as additional evidences may
warrant.
In the interim, Absolute Management Corporation
noticed that the deceased’s shares of stocks with Ayala
Sales Corporation and Ayala Construction Supply, Inc.
were not included in the inventory of assets.
As a consequence, it filed a motion to require Betty T.
Chua to explain why she did not report these shares of
stocks in the inventory. Through a reply, Betty T. Chua
alleged that these shares had already been assigned
and transferred to other parties prior to the death of
her husband, Jose L. Chua. She attached to her reply the
deeds of assignment which allegedly constituted proofs
of transfer. Such explanation was accepted by the
Court.
Absolute Management Corporation, suspecting that the
documents attached to Betty T. Chua’s reply were
spurious and simulated, filed a motion for the
examination of the supposed transferees. xxx It
premised its motion on Section 6, Rule 87, Revised
Rules of Court, infra, which states that when a person is
suspected of having concealed, embezzled, or conveyed
away any of the properties of the deceased, a creditor
may file a complaint with the trial court and the trial
court may cite the suspected person to appear before it
and be examined under oath on the matter of such
complaint.
The motion was denied by Court since Absolute sought
to engage in a fishing expedition for evidence to be
used against the administratrix and others whom it
seeks to examine.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
The CA gave due course to Absolute’s Motion for the
Examination of the Administratrix and Others, hence
this petition.
ISSUE: WON the CA erred in granting the Motion for
Examination of Administratix uncer Rule 87 Section 6.
NO
HELD:
Section 6, Rule 87 of the Rules of Court provides:
SEC. 6. Proceedings when property concealed,
embezzled, or fraudulently conveyed. — If an executor
or administrator, heir, legatee, creditor, or other
individual interested in the estate of the deceased,
complains to the court having jurisdiction of the estate
that a person is suspected of having concealed,
embezzled, or conveyed away any of the money, goods,
or chattels of the deceased, or that such person has in
his possession or has knowledge of any deed,
conveyance, bond, contract, or other writing which
contains evidence of or tends to disclose the right, title,
interest, or claim of the deceased, the court may cite
such suspected person to appear before it and may
examine him on oath on the matter of such complaint;
and if the person so cited refuses to appear, or to
answer on such examination or such interrogatories as
are put to him, the court may punish him for contempt,
and may commit him to prison until he submits to the
order of the court. The interrogatories put to any such
person, and his answers thereto, shall be in writing and
shall be filed in the clerk’s office.
Section 6 of Rule 87 seeks to secure evidence from
persons suspected of having possession or knowledge
of the properties left by a deceased person, or of having
concealed, embezzled or conveyed any of the
properties of the deceased.
The court which acquires jurisdiction over the
properties of a deceased person through the filing of
Alvar, Ceballo, Cuabo
3Manresa
the corresponding proceedings has supervision and
control over these properties. The trial court has the
inherent duty to see to it that the inventory of the
administrator lists all the properties, rights and credits
which the law requires the administrator to include in
his inventory. In compliance with this duty, the court
also has the inherent power to determine what
properties, rights and credits of the deceased the
administrator should include or exclude in the
inventory. An heir or person interested in the properties
of a deceased may call the court’s attention that certain
properties, rights or credits are left out from the
inventory. In such a case, it is likewise the court’s duty
to hear the observations of such party. The court has
the power to determine if such observations deserve
attention and if such properties belong prima facie to
the estate.
However, in such proceedings the trial court has no
authority to decide whether the properties, real or
personal, belong to the estate or to the persons
examined. If after such examination there is good
reason to believe that the person examined is keeping
properties belonging to the estate, then the
administrator should file an ordinary action in court to
recover the same. Inclusion of certain shares of stock by
the administrator in the inventory does not
automatically deprive the assignees of their shares.
They have a right to be heard on the question of
ownership, when that property is properly presented to
the court.
In the present case, some of the transferees of the
shares of stock do not appear to be heirs of the
decedent. Neither do they appear to be parties to the
intestate proceedings. Third persons to whom the
decedent’s assets had been conveyed may be cited to
appear in court and examined under oath as to how
they came into possession of the decedent’s assets. In
case of fraudulent conveyances, a separate action is
necessary to recover these assets.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Taken in this light, there is no reason why the trial court
should disallow the examination of the alleged
transferees of the shares of stocks. This is only for
purposes of eliciting information or securing evidence
from persons suspected of concealing or conveying
some of the decedent’s properties to the prejudice of
creditors. Petitioners’ admission that these persons are
the decedent’s assignees does not automatically negate
concealment of the decedent’s assets on their part. The
assignment might be simulated so as to place the shares
beyond the reach of creditors. In case the shares are
eventually included in the estate, this inventory is
merely provisional and is not determinative of the issue
of ownership. A separate action is necessary for
determination of ownership and recovery of
possession.
Payment of Debts
Solvent Estate ( Rule 88, Sec. 1,2,3,6)
Insolvent Estate ( Rule 88, Sec. 7, 8,9, 10 )
Contingent Claim ( Rule 88, Sec. 5)
Time for Payment of Debts and Legacies (Rule 88, Sec.
15, 16)
Order and Manner for Payment and Distribution of
Assets ( Rule 88, Sec. 11, 12, 13, 14)
Sale, Mortgage, Encumbrance of Assets ( Rule 89, Sec.
2,4,6,8,9)
Sale of Personalty (Rule 89, Sec. 1,4)
Sale, Mortgage, Encumbrance of Realty (Rule 89, Sec.
2,4,5)
Who may Oppose? (Rule 89, Sec. 3)
Regulations for Granting Authority (Rule 89, Sec. 7)
Alvar, Ceballo, Cuabo
3Manresa
RULE 88
Payment of the Debts of the Estate
Section 1. Debts paid in full if estate sufficient. — If,
after hearing all the money claims against the estate,
and after ascertaining the amount of such claims, it
appears that there are sufficient assets to pay the
debts, the executor or administrator pay the same
within the time limited for that purpose.
Section 2. Part of estate from which debt paid when
provision made by will. — If the testator makes
provision by his will, or designates the estate to be
appropriated for the payment of his debts, the
expenses of administration, or the family expenses,
they shall be paid according to the provisions of the will;
but if the provision made by the will or the estate
appropriated, is not sufficient for that purpose, such
part of the estate of the testator, real or personal, as is
not disposed of by will, if any shall be appropriated for
that purpose.
Section 3. Personalty first chargeable for debts, then
realty. — The personal estate of the deceased not
disposed of by will shall be first chargeable with the
payment of debts and expenses; and if said personal
estate is not sufficient for tat purpose, or its sale would
redound to the detriment of the participants for the
estate, the whole of the real estate not dispose of by
will, or so much thereof as is necessary, may be sold,
mortgaged, or otherwise encumbered for that purpose
by the executor or administrator, after obtaining the
authority of the court therefor. Any deficiency shall be
met by contributions in accordance with the provisions
of section 6 of this rule.
Section 4. Estate to be retained to meet contingent
claims. — If the court is satisfied that a contingent claim
duly filed is valid, it may order the executor or
administrator to retain in his hands sufficient estate to
pay such contingent claim when the same becomes
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
absolute, or if the estate is insolvent, sufficient to pay a
portion equal to the dividend of the other creditors.
Section 5. How contingent claim becoming absolute in
two years allowed and paid. Action against distributees
later. — If such contingent claim becomes absolute and
is presented to the court, or to the executor or
administrator, within two (2) years from the time
limited for other creditors to present their claims, it
may be allowed by the court if not disputed by the
executor or administrator and, if disputed, it may be
proved and allowed or disallowed by the court as the
facts may warrant. If the contingent claim is allowed,
the creditor shall receive payment to the same extent
as the other creditors if the estate retained by the
executor or administrator is sufficient. But if the claim is
not so presented, after having become absolute, within
said two (2) years, and allowed, the assets retained in
the hands of the executor or administrator, not
exhausted in the payment of claims, shall be disturbed
by the order of the court to the persons entitled to the
same; but the assets so distributed may still be applied
to the payment of the claim when established, and the
creditor may maintain an action against the distributees
to recover the debt, and such distributees and their
estates shall be liable for the debt in proportion to the
estate they have respectively received from the
property of the deceased.
Section 6. Court to fix contributive shares where
devisees, legalitees, or heirs have been possession. —
Where devisees, legalitees, or heirs have entered into
possession of portions of the estate before the debts
and expenses have been settled and paid, and have
become liable to contribute for the payment of such
debts and expenses, the court having jurisdiction of the
estate may, by order for that purpose, after hearing,
settle the amount of their several liabilities, and order
how much and in what manner each person shall
contribute, and may issue execution as circumstances
require.
Alvar, Ceballo, Cuabo
3Manresa
Section 7. Order of payment if estate insolvent — If the
assets which can be appropriated for the payment of
debts are not sufficient for that purpose, the executor
or administrator shall pay the debts against the estate,
observing the provisions of Articles 1059 and 2239 to
2251 of the Civil Code.
Section 8. Dividends to be paid in proportion to claims.
— If there are no assets sufficient to pay the credits of
any once class of creditors after paying the credits
entitled to preference over it, each creditor within such
class shall be paid a dividend in proportion to his claim.
No creditor of any one class shall receive any payment
until those of the preceding class are paid.
Section 9. Estate of insolvent non-resident, how
disposed of. — In case administration is taken in the
Philippine of the estate of a person who was at the time
of his death an inhabitant of another country, and who
died insolvent, hi estate found in the Philippines shall,
as far as practicable, be so disposed of that his creditors
here and elsewhere may receive each an equal share, in
proportion to their respective credits.
Section 10. When and how claim proved outside the
Philippines against insolvent resident's estate paid. — If
it appears to the court having jurisdiction that claims
have been duly proven in another country against the
estate of an insolvent who was at the time of his death
an inhabitant of the Philippines, and that the executor
or administrator in the Philippines had knowledge of
the presentation of such claims in such country and an
opportunity to contest their allowance, the court shall
receive a certified list of such claims, when perfected in
such country, and add the same to the list of claims
proved against the deceased person in the Philippines
so that a just distribution of the whole estate may be
made equally among all its creditors according to their
respective claims; but the benefit of this and the
preceding sections shall not be extended to the
creditors in another country if the property of such
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
deceased person there found is not equally apportioned
to the creditors residing in the Philippines and the other
creditor, according to their respective claims.
Section 11. Order for payment of debts. — Before the
expiration of the time limited for the payment of the
debts, the court shall order the payment thereof, and
the distribution of the assets received by the executor
or administrator for that purpose among the creditors,
as the circumstances of the estate require and in
accordance with the provisions of this rule.
Section 12. Orders relating to payment of debts where
appeal is taken. — If an appeal has been taken from a
decision of the court concerning a claim, the court may
suspend the order for the payment of the debts or may
order the distributions among the creditors whose
claims are definitely allowed, leaving in the hands of the
executor or administrator sufficient assets to pay the
claim disputed and appealed. When a disputed claim is
finally settled the court having jurisdiction of the estate
shall order the same to be paid out of the assets
retained to the same extent and in the same proportion
with the claims of other creditors.
Section 13. When subsequent distribution of assets
ordered. — If the whole of the debts are not paid on the
first distribution, and if the whole assets are not
distributed, or other assets afterwards come to the
hands of the executor or administrator, the court may
from time to time make further orders for the
distributions of assets.
Section 14. Creditors to be paid in accordance with
terms of order. — When an order is made for the
distribution of assets among the creditors, the executor
or administration shall, as soon as the time of payment
arrives, pay the creditors the amounts of their claims, or
the dividend thereon, in accordance with the terms of
such order.
Alvar, Ceballo, Cuabo
3Manresa
Section 15. Time for paying debts and legacies fixed, or
extended after notice, within what periods. — On
granting letters testamentary or administration the
court shall allow to the executor or administrator a time
for disposing of the estate and paying the debts and
legacies of the deceased, which shall not, in the first
instance, exceed one (1) year; but the court may, on
application of the executor or administrator and after
hearing on such notice of the time and place therefor
given to all persons interested as it shall direct, extend
the time as the circumstances of the estate require not
exceeding six (6) months for a single extension not so
that the whole period allowed to the original executor
or administrator shall exceed two (2) years.
Section 16. Successor of dead executor or administrator
may have time extended on notice within certain period.
— When an executor or administrator dies, and a new
administrator of the same estate is appointed, the court
may extend the time allowed for the payment of the
debts or legacies beyond the time allowed to the
original executor or administrator, not exceeding six (6)
months at a time and not exceeding six (6) months
beyond the time which the court might have allowed to
such original executor or administrator; and notice shall
be given of the time and place for hearing such
application, as required in the last preceding section.
RULE 89
Sales, Mortgages, and Other Encumbrances of
Property of Decedent
Section 1. Order of sale of personalty. — Upon the
application of the executor or administrator, and on
written notice to the heirs and other persons
interested, the court may order the whole or a part of
the personal estate to be sold, if it appears necessary
for the purpose of paying debts, expenses of
administration, or legacies, or for the preservation of
the property.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Section 2. When court may authorize sale, mortgage, or
other encumbrance of realty to pay debts and legacies
through personalty not exhausted. — When the
personal estate of the deceased is not sufficient to pay
the debts, expenses of administration, and legacies, or
where the sale of such personal estate may injure the
business or other interests of those interested in the
estate, and where a testator has not otherwise made
sufficient provision for the payment of such debts,
expenses, and legacies, the court, on the application of
the executor or administrator and on written notice of
the heirs, devisees, and legatees residing in the
Philippines, may authorize the executor or
administrator to sell, mortgage, or otherwise encumber
so much as may be necessary of the real estate, in lieu
of personal estate, for the purpose of paying such
debts, expenses, and legacies, if it clearly appears that
such sale, mortgage, or encumbrance would be
beneficial to the persons interested; and if a part cannot
be sold, mortgaged, or otherwise encumbered without
injury to those interested in the remainder, the
authority may be for the sale, mortgage, or other
encumbrance of the whole of such real estate, or so
much thereof as is necessary or beneficial under the
circumstances.
Section 3. Persons interested may prevent such
sale, etc., by giving bond. — No such authority to sell,
mortgage, or otherwise encumber real or personal
estate shall be granted if any person interested in the
estate gives a bond, in a sum to be fixed by the court,
conditioned to pay the debts, expenses of
administration, and legacies within such time as the
court directs; and such bond shall be for the security of
the creditors, as well as of the executor or
administrator, and may be prosecuted for the benefit of
either.
Section 4. When court may authorize sale of estate as
beneficial to interested persons. Disposal of proceeds. —
When it appears that the sale of the whole or a part of
Alvar, Ceballo, Cuabo
3Manresa
the real or personal estate, will be beneficial to the
heirs, devisees, legatees, and other interested persons,
the court may, upon application of the executor or
administrator and on written notice to the heirs,
devisees, and legatees who are interested in the estate
to be sold, authorize the executor or administrator to
sell the whole or a part of said estate, although not
necessary to pay debts, legacies, or expenses of
administration; but such authority shall not be granted
if inconsistent with the provisions of a will. In case of
such sale, the proceeds shall be assigned to the persons
entitled to the estate in the proper proportions.
Section 5. When court may authorize sale, mortgage, or
other encumbrance of estate to pay debts and legacies
in other countries. — When the sale of personal estate,
or the sale, mortgage, or other encumbrance of real
estate is not necessary to pay the debts, expenses of
administration, or legacies in the Philippines, but it
appears from records and proceedings of a probate
court in another country that the estate of the
deceased in such other country is not sufficient to pay
the debts, expenses of administration, and legacies
there, the court here may authorize the executor or
administrator to sell the personal estate or to sell,
mortgage, or otherwise encumber the real estate for
the payment of debts or legacies in the other country,
in same manner as for the payment of debts or legacies
in the Philippines.
Section 6. When court may authorize sale, mortgage, or
other encumbrance of realty acquired on execution or
foreclosure. — The court may authorize an executor or
administrator to sell mortgage, or otherwise encumber
real estate acquired by him on execution or foreclosure
sale, under the same cicumstances and under the same
regulations as prescribed in this rule for the sale,
mortgage, or other encumbrance of other real estate.
Section 7. Regulation for granting authority to sell,
mortgage, or otherwise encumber estate. — The court
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
having jurisdiction of the estate of the deceased may
authorize the executor or administrator to sell personal
estate, or to sell, mortgage, or otherwise encumber real
estate, in cases provided by these rules and when it
appears necessary or beneficial under the following
regulations.
(a) The executor or administrator shall file a written
petition setting forth the debts due from the deceased,
the expenses of administration, the legacies, the value
of the personal estate, the situation of the estate to be
sold, mortgaged, or otherwise encumbered, and such
other facts as show that the sale, mortgage, or other
encumbrance is necessary or beneficial.
(b) The court shall thereupon fix a time and place for
hearing such petition, and cause notice stating the
nature of the petition, the reasons for the same, and
the time and place of hearing, to be given personally or
by mail to the persons interested, and may cause such
further notice to be given, by publication or otherwise,
as it shall deem proper;
(c) If the court requires it, the executor or administrator
shall give an additional bond, in such sum as the court
directs, conditioned that such executor or administrator
will account for the proceeds of the sale, mortgage, or
other encumbrance;
(d) If the requirements in the preceding subdivisions of
this section have been complied with, the court, by
order stating such compliance, may authorize the
executor or administrator to sell, mortgage, or
otherwise encumber, in proper cases, such part of the
estate as is deemed necessary, and in case of sale the
court may authorize it to be public or private, as would
be most beneficial to all parties concerned. The
executor or administrator shall be furnished with a
certified copy of such order;
(e) If the estate is to be sold at auction, the mode of
giving notice of the time and place of the sale shall be
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governed by the provisions concerning notice of
execution sale;
(f) There shall be recorded in the registry of deeds of
the province in which the real estate thus sold,
mortgage, or otherwise encumbered is situated, a
certified copy of the order of the court, together with
the deed of the executor or administrator for such real
estate, which shall be as valid as if the deed had been
executed by the deceased in his lifetime.
Section 8. When court may authorize conveyance of
realty which deceased contracted to
convey. Notice. Effect of deed. — Where the deceased
was in his lifetime under contract, binding in law, to
deed real property, or an interest therein, the court
having jurisdiction of the estate may, on application for
that purpose, authorize the executor or administrator
to convey such property according to such contract, or
with such modifications as are agreed upon by the
parties and approved by the court; and if the contract is
to convey real property to the executor or
administrator, the clerk of court shall execute the deed.
The deed executed by such executor, administrator, or
clerk of court shall be as affectual to convey the
property as if executed by the deceased in his lifetime;
but no such conveyance shall be authorized until notice
of the application for that purpose has been given
personally or by mail to all persons interested, and such
further notice has been given, by publication or
otherwise, as the court deems proper; nor if the assets
in the hands of the executor or administrator will
thereby be reduced so as to prevent a creditor from
receiving his full debt or diminish his dividend.
Section 9. When court may authorize conveyance of
lands which deceased held in trust. — Where the
deceased in his lifetime held real property in trust for
another person, the court may after notice given as
required in the last preceding section, authorize the
executor or administrator to deed such property to the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
person, or his executor or administrator, for whose use
and benefit it was so held; and the court may order the
execution of such trust, whether created by deed or by
law.
1. Sandejas v Lina
G.R. No. 141634 February 5, 2001
FACTS:
On February 17, 1981, Eliodoro Sandejas, Sr. filed a
petition in the lower court praying that letters of
administration be issued in his favor for the settlement
of the estate of his wife, REMEDIOS R. SANDEJAS, who
died on April 17, 1955. This was granted by the court.
On April 19, 1983, an Omnibus Pleading for motion to
intervene and petition-in-intervention was filed by
Movant Alex A. Lina alleging among others that on June
7, 1982, movant and Administrator Eliodoro P.
Sandejas, in his capacity as seller, bound and obligated
himself, his heirs, administrators, and assigns, to sell
forever and absolutely and in their entirety the
following parcels of land (4 PARCELS LOTS NO. 22, 21, 5,
6 BLOCK 45) which formed part of the estate of the late
Remedios R. Sandejas.
On January 7, 1985, counsel for Sandejas filed a
Manifestation alleging that Mr. Eliodoro Sandejas died
sometime in Nov 1984 in Canada. He also alleged that
the matter of the claim of intervenor Alex Lina becomes
a money claim to be filed in the estate of the late
Eliodoro Sandejas.
On Nov 22, 1985, Alex Lina filed with RTC an Omnibus
Pleading for petition for letters of administration and to
consolidate SP. Proc. No. 85- 33707 entitled 'IN RE:
INTESTATE ESTATE OF ELIODORO P. SANDEJAS, SR.,
ALEX A. LINA PETITIONER".
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Alex Lina filed a motion for his appointment as new
administrator of Intestate Estate of Remedios Sandejas,
which was granted by the court.
In Aug 1986, heirs Sixto Sandejas, et al, filed an MR for
the appointment of another administrator, Mr. Sixto
Sandejas in lieu of Alex Lina. Alex had no objection to
the appointment of Sixto as administrator, provided
that Sixto be also appointed as administrator of the
intestate estate of his father Eliodoro Sandejas (which
the 2 cases have been consolidated). After payment of
administrator’s bond and approval by the court, Sixto
Sandejas took his oath as administrator and were issued
Letters of Administration.
On Nov 29, 1993, Intervenor filed a motion to approve
the deed of conditional sale executed between Alex
Lina and Eliodoro Sandejas, and to compel heirs of
Remedios and Eliodoro to execute a deed of absolute
sale in favor of Alex Lina pursuant to said conditional
deed of sale. On January 13, 1995, the lower court
rendered the questioned order granting intervenor's
[M]otion for the [A]pproval of the Receipt of Earnest
Money with promise to buy between Plaintiff-in-
lntervention Alex A. Lina and Eliodoro Sandejas, Sr.
dated June 7, 1982.
ISSUE: WON Eliodoro P. Sandejas Sr. is legally obligated
to convey title to the property referred to in the subject
document which was found to be in the nature of a
contract to sell (where the suspensive condition set
forth therein [i.e.] court approval, was not complied
with)
HELD:
Contract was a conditional sale, not a contract to sell
Petitioners argue that the CA erred in ordering the
conveyance of the disputed 3/5 of the parcels of land,
despite the nonfulfillment of the suspensive condition --
court approval of the sale -- as contained in the "Receipt
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
of Earnest Money with Promise to Sell and to Buy" (also
referred to as the "Receipt"). Instead, they assert that
because this condition had not been satisfied, their
obligation to deliver the disputed parcels of land was
converted into a money claim.
We disagree. Petitioners admit that the agreement
between the deceased Eliodoro Sandejas Sr. and
respondent was a contract to sell. Not exactly. In a
contract to sell, the payment of the purchase price is a
positive suspensive condition. The vendor's obligation
to convey the title does not become effective in case of
failure to pay.
On the other hand, the agreement between Eliodoro Sr.
and respondent is subject to a suspensive condition --
the procurement of a court approval, not full payment.
There was no reservation of ownership in the
agreement. In accordance with paragraph 1 of the
Receipt, petitioners were supposed to deed the
disputed lots over to respondent. This they could do
upon the court's approval, even before full payment.
Hence, their contract was a conditional sale, rather than
a contract to sell.
When a contract is subject to a suspensive condition, its
birth or effectivity can take place only if and when the
condition happens or is fulfilled. Thus, the intestate
court's grant of the Motion for Approval of the sale filed
by respondent resulted in petitioners' obligation to
execute the Deed of Sale of the disputed lots in his
favor. The condition having been satisfied, the contract
was perfected. Henceforth, the parties were bound to
fulfil what they had expressly agreed upon.
Court approval required in disposition of estate
Court approval is required in any disposition of the
decedent's estate per Rule 89 of the Rules of Court.
Reference to judicial approval, however, cannot
adversely affect the substantive rights of heirs to
dispose of their own pro indiviso shares in the co-
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heirship or co-ownership. In other words, they can sell
their rights, interests or participation in the property
under administration. A stipulation requiring court
approval does not affect the validity and the effectivity
of the sale as regards the selling heirs. It merely implies
that the property may be taken out of custodia legis,
but only with the court's permission.13 It would seem
that the suspensive condition in the present conditional
sale was imposed only for this reason.
Obligation NOT converted into a mere money claim
Thus, we are not persuaded by petitioners' argument
that the obligation was converted into a mere monetary
claim. Paragraph 4 of the Receipt, which petitioners rely
on, refers to a situation wherein the sale has not
materialized. In such a case," the seller is bound to
return to the buyer the earnest money paid plus
interest at fourteen percent per annum. But the sale
was approved by the intestate court; hence, the proviso
does not apply.
Because petitioners did not consent to the sale of their
ideal shares in the disputed lots, the CA correctly
limited the scope of the Receipt to the pro-indiviso
share of Eliodoro Sr. Thus, it correctly modified the
intestate court's ruling by excluding their shares from
the ambit of the transaction.
Issue as to jurisdiction of Settlement Court:
The suspensive condition did not reduce the conditional
sale between Eliodoro Sr. and respondent to one that
was "not a definite, clear and absolute document of
sale," as contended by petitioners. Upon the occurrence
of the condition, the conditional sale became a
reciprocally demandable obligation that is binding upon
the parties. The existence of the suspensive condition
did not remove that property from the jurisdiction of
the intestate court.
2. Orola v Pontevedra
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
G.R. No. 158566 September 20, 2005
JOSEPHINE OROLA, MYRNA OROLA, ANGELINE OROLA,
MANUEL OROLA, ANTONIO OROLA and ALTHEA
OROLA, Petitioners,
vs.
THE RURAL BANK OF PONTEVEDRA (CAPIZ), INC.,
EMILIO Q. OROLA, THE REGISTER OF DEEDS OF CAPIZ
and THE EX-OFFICIO PROVINCIAL SHERIFF OF
CAPIZ, Respondent.
FACTS:
On July 16, 1969, Trinidad Laserna Orola died intestate
survived by her husband Emilio Orola and their six
minor children, namely, Antonio, Josephine, Manuel,
and other siblings, Myrna, Angeline and Althea.
The estate consisted of portions of Lot 1071 and Lot
1088.
Execution by Emilio of Waiver of Rights and Interest
Emilio Orola, who, in the meantime, had married anew,
executed a waiver of all his rights and interests over the
said property in favor of his children, namely,
Josephine, Myrna, Angeline, Manuel, Antonio and
Althea.
In 1973, Emilio Orola’s petition for his appointment as
guardian over the persons and property of his minor
children was granted, and Emilio Orola was appointed
guardian not only over the persons of his minor children
but also over their property.
On November 6, 1973, Emilio filed a petition with the
RTC for the settlement of the estate of his deceased
spouse and his appointment as administrator of her
estate which was likewise granted.
Application for Loan to Develop Swampy Portion of
Estate
As such administrator of the estate, Emilio developed
portions of the property devoted for sugar production
and opened a sugar account with PNB . However, in
1976 and 1977, there was a sudden collapse of the
sugar industry. Emilio Orola found it necessary to
develop the swampy portion of the estate for the
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production of fish. To finance the endeavor, he needed
at least P600,000.00.
On September 11, 1980, Emilio Orola filed a motion in
the guardianship case for authority to negotiate
aP600,000.00 loan from the Central Bank of the
Philippines for the full and complete development of
the fishpond portion of the estate.
On September 12, 1980, the court granted the motion
of the administrator .
Emilio then filed an application with the Rural Bank for
a financing loan of P600,000.00. He was informed that
the Central Bank would intervene by virtue of the
amount of the loan. However, if the P600,000.00
would be broken down into three parts of P200,000.00,
each to be applied for by three applicants to whom the
property to be used as collateral would be leased by the
estate, Central Bank would no longer intervene. Emilio
agreed and talked to his children, Josephine, Manuel
and Antonio, about the bank’s proposal. The three
siblings agreed.
Execution of Contract of Lease and Amended Contract
of Lease
The Estate of Trinidad Laserna, through its
administrator, Emilio, as lessor, and Josephine, Manuel
and Antonio, all surnamed Orola, as lessees, executed
separate contracts of lease over the aforesaid property
of the estate. On September 20, 1982, the intestate
estate court issued an Order approving the contracts.
An Amended Contract of Lease was submitted to the
Court for approval. This Contract of Lease contained a
stipulation tha the lessees (Josephine, Manuel,
Antonio) were authorized to negotiate loans for the
development of the leased premises not to
exceed P200,000.00, and to bind the leased premises by
way of real estate mortgage as security therefor. Emilio
Orola notified Josephine, Myrna , Angeline, Manuel,
Antonio and Althea of his motion for the approval of the
amended contracts of lease. Angeline, Myrna and
Althea Orola filed their Joint Affidavit of Conformity. On
December 17, 1982, the court granted the motion of
Emilio and approved the amended contracts of
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
lease. On December 20, 1982, the Rural Bank notified
Emilio that the loan applications of his children had
been approved.
Antonio, Manuel and Josephine signed separate
Promissory Notes on March 21, 1983 in which they
promised and bound themselves to pay their respective
loans in 10 years in stated annual installments.
Execution of Real Estate Mortgages by Lessees
Antonio Orola, for and in behalf of his father Emilio
Orola, executed a Real Estate Mortgage over Lot 1088
as security for the payment of his loan. Manuel Orola,
also as attorney-in-fact of the administrator of the
estate, likewise, executed a real estate mortgage in
favor of the Rural Bank over the said lots as security for
his loan. Josephine Orola, as attorney-in-fact of the
administrator of the estate, executed a separate real
estate mortgage agreement over a portion of Lot 1088
and Lot 1071 as security for her loan. However, the real
estate mortgage contracts were not submitted to the
guardianship and intestate estate courts for approval.
Neither were Myrna, Angeline and Althea aware of the
said loans.
Emilio, thereafter, failed to pay the amortizations of the
loans to the Rural Bank. The Lots were extrajudicially
foreclosed, sold on public auction and certificates of
sale issued in favor of the Rural Bank as highest bidder.
On September 1, 1987, the guardianship court
terminated the guardianship and dismissed the case. On
September 21, 1987, Josephine, Myrna, Manuel and
Antonio Orola executed a Deed of Acceptance of
Waiver or Donation in which they accepted their
father’s waiver of his rights, interests and participation
over their mother’s estate.
Complaint
On October 1, 1987, Josephine Orola and her siblings,
Myrna, Angeline, Manuel, Antonio and Althea, filed a
Complaint against the Rural Bank, their father Emilio
and the Ex-Officio Provincial Sheriff for the nullification
of the Promissory Notes and Real Estate Mortgages
executed by Josephine, Manuel and Antonio Orola, and
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the sale of the property subject of the said deed at
public auction. They alleged therein that they became
the sole owners of Lots 1088 and 1071 when their
father executed a waiver of his rights over the said lots
in their favor. They also alleged that the real estate
mortgage contracts were null and void because the
same were never submitted to and approved by the
RTC ( settlement proceeding). Moreover, they were
hoodwinked by their father into signing the contracts of
lease and amended contracts of lease, promissory notes
and deeds of real estate mortgages as security for
the P600,000.00 loan on the assurance that they would
be benefited therefrom; moreover, they did not receive
the proceeds of the said loans. As such, the extrajudicial
foreclosure of the real estate mortgages and the sale of
the property covered by the said deeds were null and
void.
RTC ruled in favor of Plaintiffs. On appeal, CA ruled that
the intestate estate court’s approval of the amended
contracts of lease carried with it the approval of the real
estate mortgages executed by Emilio Orola in favor of
the Rural Bank. Angeline, Myrna and Althea even
conformed to the amended contracts of lease; hence,
were estopped from assailing them, as well as the real
estate mortgage contracts. Hence, this petition.
ISSUE: WON the REMs executed on the subject Lots are
null and void. YES
HELD:
The REM deed must be submitted for the
consideration and approval or disapproval of the
court; Emilio failed to secure Order from Intestate
Court to mortgage the Lots
Section 2, Rule 89 of the Rules of Court provides that,
upon application of the administrator and on written
notice to the heirs, the court may authorize the
administrator to mortgage so much as may be
necessary of the real estate for the expenses of the
administrator, or if it clearly appears that such
mortgage would be beneficial to the persons interested:
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Sec. 2. When court may authorize sale, mortgage, or other
encumbrance of realty to pay debts and legacies through
personality not exhausted. – When the personal estate of the
deceased is not sufficient to pay the debts, expenses of
administration, and legacies, or where the sale of such
personal estate may injure the business or other interests of
those interested in the estate, and where a testator has not,
otherwise, made sufficient provision for the payment of such
debts, expenses, and legacies, the court, on the application of
the executor or administrator and on written notice to the
heirs, devisees, and legatees residing in the Philippines, may
authorize the executor or administrator to sell, mortgage, or
otherwise, encumber so much as may be necessary of the real
estate, in lieu of personal estate, for the purpose of paying
such debts, expenses, and legacies, if it clearly appears that
such sale, mortgage, or encumbrance would be beneficial to
the persons interested; and if a part cannot be sold,
mortgaged, or otherwise encumbered without injury to those
interested in the remainder, the authority may be for the sale,
mortgage, or other encumbrance of the whole of such real
estate, or so much thereof as is necessary or beneficial under
the circumstances.
Section 7 of Rule 89 provides the rules to obtain court
approval for such mortgage:
(a) The executor or administrator shall file a written petition
setting forth the debts due from the deceased, the expenses
of administration, the legacies, the value of the personal
estate, the situation of the estate to be sold, mortgaged, or
otherwise encumbered, and such other facts as show that the
sale, mortgage, or other encumbrance is necessary or
beneficial;
(b) The court shall thereupon fix a time and place for hearing
such petition, and cause notice stating the nature of the
petition, the reason for the same, and the time and place of
hearing, to be given personally or by mail to the persons
interested, and may cause such further notice to be given, by
publication or otherwise, as it shall deem proper;
(c) If the court requires it, the executor or administrator shall
give an additional bond, in such sum as the court directs,
conditioned that such executor or administrator will account
for the proceeds of the sale, mortgage, or other
encumbrance;
(d) If the requirements in the preceding subdivisions of this
section have been complied with, the court, by order stating
such compliance, may authorize the executor or administrator
to sell, mortgage, or otherwise encumber, in proper cases,
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such part of the estate as is deemed necessary, and in case of
sale the court may authorize it to be public or private, as
would be most beneficial to all parties concerned. The
executor or administrator shall be furnished with a certified
copy of such order;
(e) If the estate is to be sold at auction, the mode of giving
notice of the time and place of the sale shall be governed by
the provisions concerning notice of execution sale;
(f) There shall be recorded in the registry of deeds of the
province in which the real estate thus sold, mortgaged, or
otherwise encumbered is situated, a certified copy of the
order of the court, together with the deed of the executor or
administrator for such real estate, which shall be as valid as if
the deed had been executed by the deceased in his lifetime.
After the real estate mortgage is executed in
accordance with the foregoing regulations, the said
deed must be submitted for the consideration and
approval or disapproval of the court.
The records show that respondent Emilio Orola notified
the petitioners of his motion for the approval of the
amended contracts of lease. Although the motion
was ex parte, nonetheless, petitioners Angeline, Myrna
and Althea Orola filed their Joint Affidavit of
Conformity.
However, the Court agrees with the petitioners’
contention that respondent Orola failed to secure an
order from the intestate estate court authorizing him to
mortgage the subject lots and execute a real estate
mortgage contract in favor of respondent Rural Bank.
What the intestate estate court approved in its
December 17, 1982 Order was the authority
incorporated in the amended contracts of lease
respondent Orola gave to petitioners Josephine,
Manuel and Antonio Orola so that the said lots could
be mortgaged to the respondent Rural Bank as security
for the P600,000.00 loan under their respective names.
In fine, the intestate estate court authorized the
petitioners, not respondent Orola, to mortgage the said
lots to respondent Rural Bank. Moreover, under Section
7 of Rule 89 of the Rules of Court, only the executor or
administrator of the estate may be authorized by the
intestate estate court to mortgage real estate belonging
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
to the estate; hence, the order of the estate court
authorizing the petitioners to mortgage the realty of
the estate to the respondent Rural Bank is a nullity.
The respondents must have realized that the order of
the intestate estate court authorizing petitioners
Manuel, Antonio and Josephine Orola to mortgage the
lots was void because respondent Emilio Orola caused
the real estate mortgage contracts in favor of
respondent Rural Bank to be executed by his children,
petitioners Josephine, Manuel and Antonio Orola,
"acting as attorneys-in-fact of the administrator of the
estate." However, the estate court had not appointed
petitioners Antonio, Josephine and Manuel Orola as
attorneys-in-fact of respondent Emilio Orola
empowered to execute the said contracts. Hence, they
had no authority to execute the said Real Estate
Mortgage Contracts for and in behalf of respondent
Orola, in the latter’s capacity as administrator of the
estate.
Worse, respondent Orola failed to submit the real
estate mortgage contracts to the intestate estate court
for its consideration and approval. To give approval
means to confirm, ratify, or to consent to some act or
thing done by another. Unless and until the said
contracts are approved by the intestate estate court,
the same cannot have any binding effect upon the
estate; nor serve as basis for any action against the
estate and against the parcels of land described in the
said contracts belonging to it.
A REM executed by an administrator over the Estate
without proper authority is null and void and no title
passes to the purchaser at public auction
It bears stressing that respondent Orola had no right or
authority to mortgage the realty belonging to the
estate. He derived his authority from the order of the
estate court which had jurisdiction to authorize the real
estate mortgage thereof under such terms and
conditions and upon proper application. Any mortgage
of realty of the estate without the appropriate authority
of the estate court has no legal support and is void. The
purchaser at public auction acquires no title over the
realty. The real estate mortgage contracts, as well as
the extrajudicial foreclosure thereof and the sale of the
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property described therein at public auction, can thus
be attacked directly and collaterally.
Contrary to the contention of respondent Rural Bank,
the petitioners were not estopped from assailing the
real estate mortgage contracts, the extrajudicial
foreclosure thereof and the sale of the property to
respondent Rural Bank.
Although the records show that petitioners Josephine,
Manuel and Antonio Orola received the proceeds of the
loan from respondent Rural Bank, the amount was
deposited by respondent Emilio Orola in his savings
account with respondent Rural Bank. He was obliged to
deposit the said amount in the estate’s account with
the Republic Planters Bank, as ordered by the intestate
estate court. Worse, respondent Rural Bank
applied P229,771.20 of the loan proceeds to liquidate
the accommodation loan it granted to respondent
Emilio Orola. There is no showing in the records that the
intestate estate court ever authorized the use of the
proceeds of the loan to pay respondent Emilio Orola’s
accommodation loan. The loan proceeds were to be
used to develop property belonging to the estate into a
fishpond from which income could be generated. Of the
net proceeds of theP582,000.00 loan, only P4,292.79
remained as of September 9, 1983. Respondent Emilio
Orola failed to pay the amortization of the loan for the
respondent Rural Bank of the estate.
Had the real estate mortgage contracts been submitted
to the intestate estate court for consideration and
approval after proper notice to the petitioners, the
court would have been apprised of the terms and
conditions contained therein, and that about one-half
of the loan would be used to pay the accommodation
loan of respondent Emilio Orola.
Petitioners Manuel, Josephine and Antonio Orola
executed the amended contracts of lease, the
promissory notes and the real estate mortgages upon
the prodding of their father, respondent Emilio Orola,
and upon the suggestion of respondent Rural Bank,
solely to facilitate the speedy approval of the loan of
the estate, which was to be the ultimate beneficiary
thereof. The petitioners acted on the belief that the
loan would be used to develop the swampy portion of
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the realty into an income-generating fishpond,
impervious of the fact that almost one-half of the
proceeds of the loan had been used to pay the
accommodation loan of respondent Emilio Orola.
Waiver of Rights Executed by Emilio already Effective
in Favor of his Children
The claim of respondent Emilio Orola that part of the
property used as collateral for the loan was part of his
and his deceased wife’s conjugal property, and that the
waiver he executed was to take effect only upon his
death, is belied by the records. Indeed, in his Waiver of
Rights dated October 26, 1976, respondent Emilio Orola
declared that:
1. That during the lifetime of my first wife, Trinidad
Laserna, we have acquired property by purchase from
Mr. Manuel Laserna, in co-ownership with Pedro
Laserna, Dolores Deocampo, Jesus Laserna and Emiliana
Laserna affecting Lots Nos. 1070, 1071, 1074, 1075,
1088, 1050 & 1051, all of Pontevedra Cadastre;
2. That the said [properties] mentioned above are still
under co-ownership, pro indiviso, between and among
the Vendees whose names are mentioned above;
3. That during the marital relations between me and my
deceased wife, Trinidad Laserna, we have six (6)
children, namely, Josephine, Myrna, Angeline, Manuel,
Antonio and Althea, all surnamed Orola;
4. That the co-owners have decided to terminate the
co-ownership over the above-mentioned properties of
which the aforementioned children of the spouses,
Emilio Orola and Trinidad Laserna, became co-owners
thereof in representation of their deceased mother,
Trinidad Laserna, by operation of law and the herein
undersigned desires to give protection to his children of
the first marriage which are named above.
NOW, THEREFORE, for and in consideration of the love,
affection and mutual agreements, I, EMILIO Q. OROLA,
by these presents, do hereby waive and relinquish all
my shares, interests and participations over all the
above-mentioned properties in favor of my six (6)
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children of the first marriage, namely, Josephine,
Myrna, Angeline, Manuel, Antonio and Althea.
It is understood that, upon the registration of the
project of partition which the co-owners will present
that the shares and participations of the undersigned
shall be consolidated in the names of the children
mentioned above in equal right and participation.
NOTE: Although not found in the Rules, a Deed of REM
should be presented in Court for approval or disapproval
as laid down in this case.
3. Bonaga v Soler
G.R. No. L-15717,June 30, 1961
JULIAN BOÑAGA, plaintiff-appellant, vs. ROBERTO
SOLER, ET AL., defendants-appellants.
FACTS:
Intestate proceedings for the settlement of the estate
of spouses Alejandro Ros and Maria Isaac were
commenced in the CFI where Juan Garza (the
administrator) was authorized by the probate court on
August 1944 to sell certain parcels of land pertaining to
the estate. Pursuant hereto, Garza sold said parcels of
land on August 30, 944 in favor of Roberto Soler , which
sale was subsequently approved.
Sometime during the war, the records of Intestate
proceeding were destroyed. Upon reconstitution of
these records by court order, Julian Boñaga was issued
letters of administration. An action was filed by Boñaga
in his capacity as administrator, seeking to annul the
sales in favor of Roberto Soler on the ground that said
transactions were fraudulent made without notice to
the heirs of Alejandro Ros of the hearing of the
application to sell, and that the sales were not
beneficial to the heirs for various reasons.
Bonaga alleges that these lands comprised almost the
entire estate. Nothing in the record would
showwhether, as required by Rule 90, sections 4 and 7,
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
the application for authority to sell was set for hearing,
or that the court ever caused notice thereof to be
issued to the heirs of Alejandro Ros Incidentally, these
heirs seem not to have gotten any part of the purchase
price since they were then allegedly in Spain. Yet, in the
order of declaration of heirs of the wife and approving
the sale to Soler, the declaration of the heirs of the
husband Alejandro Ros was expressly held in abeyance,
indicating a recognition of their existence.
ISSUE: WON the sale made in favour of Soler was valid?
NO
HELD:
Requisites under rule 90 must be complied with;
otherwise the sale is void
A sale of properties of an estate as beneficial to the
interested parties, under Sections 4 and 7, Rule 90,
must comply with the requisites therein provided,
which are mandatory. Among these requisites, the
fixing of the time and place of hearing for an application
to sell, and the notice thereof to the heirs, are essential;
and without them, the authority to sell, the sale itself,
and the order approving it, would
be null and void abinitio . Rule 90, Section 4, does not
distinguish between heirs residing in and those
residing outside the Philippines. Therefore, its
requirements should apply regardless of the place of
residence of those required to be notified under said
rule.
The contention that the sale was made under Section 2,
Rule 90 (wherein notice is required only to those heirs,
etc., residing in the Philippines), is not substantiated by
the record. Neither the deed of sale on August 30, 1944,
nor the orders issued by the probate court in
connection there with, show whether, as required by
said Section 2, the personal properties were insufficient
to pay the debts and expenses of administration. There
is not even a showing, to start with, that the sale was
Alvar, Ceballo, Cuabo
3Manresa
made for the purpose of paying debts or expenses of
administration (or legacies), a condition which
circumscribes the applicability of that section. On the
face of the reamended complaint at any rate, it does
not appear that the contested sale was one under
section 2 of Rule 90; and the same can not be invoked
to sustain the motion to dismiss. Without reception of
further evidence to determine whether the requisites of
the applicable provisions of the Rules had been
followed, the dismissal of the action was erroneous and
improvident. Plaintiff should at least have been given a
chance to prove his case.
WHEREFORE, the case REMANDED, with instructions to
proceed in accordance with this decision.
4. Pahamotang et. al v PNB , et al
G.R. No. 156403. March 31, 2005
FACTS:
On July 1, 1972, Melitona Pahamotang died. She was
survived by her husband Agustin Pahamotang, and their
eight (8) children, namely: Ana, Genoveva, Isabelita,
Corazon, Susana, Concepcion and herein petitioners
Josephine and Eleonor, all surnamed Pahamotang.
On September 15, 1972, Agustin filed with the then
Court of First Instance of Davao City a petition for
issuance of letters administration over the estate of his
deceased wife. In his petition, Agustin identified
petitioners Josephine and Eleonor as among the heirs of
his deceased spouse. It appears that Agustin was
appointed petitioners' judicial guardian in an earlier
case. The Court granted this petition.
PNB and Agustin executed an Amendment of Real and
Chattel Mortgages with Assumption of Obligation. It
appears that earlier (on Dec 14, 1972), the intestate
court approved the mortgage to PNB of certain assets
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
of the estate to secure an obligation in the amount of
P570,000.00. Agustin signed the document in behalf of:
(1) estate of Melitona; (2) daughters Ana and Corazon;
and (3) a logging company PLEI which appeared to have
an interest in the properties of the estate. Offered as
securities are 12 parcels of land.
Agustin filed with the intestate court a Petition for
Authority to Increase Mortgage on the said properties
of the estate, which was granted. Agustin again filed
with the intestate court another petition, a Petition for
Declaration of Heirs and Authority to Increase
Indebtedness, which was also granted.
Agustin filed a Petition (Request for Judicial Authority to
Sell Certain Properties of the Estate), therein praying for
authority to sell to Arturo Arguna the properties of the
estate. Agustin yet filed with the intestate court
another petition, this time a Petition to Sell the
Properties of the Estate.
In separate Orders both dated Feb 25, 1980, the court
granted Agustin authority to sell real estate properties,
in which orders the court also required all the heirs of
Melitona to give their express conformity to the
disposal of the subject properties of the estate and to
sign the deed of sale to be submitted to the same court.
Strangely, the 2 orders were dated 2 days earlier than
Feb 27, 1980, the day Agustin supposedly filed this
petition. In an MR, Agustin prayed for the amendment
of one of the court orders cancelling the requirement of
express conformity of the heirs as a condition for the
disposal of said properties. This was granted by the
court.
Hence, estate properties were sold to Arturo Arguna,
while another property was sold to PLEI. Arguna and
PLEI filed with the court a motion for the approval of
the deeds of sale in their favor, which was granted.
Alvar, Ceballo, Cuabo
3Manresa
Meanwhile, the obligation secured by mortgages on the
subject properties of the estate was never satisfied.
Hence, on the basis of the real estate mortgage
contracts dated July 6, 1973 and October 22, 1974,
mortgagor PNB filed a petition for the extrajudicial
foreclosure of the mortgage.
Petitioner Josephine filed a motion with the intestate
court for the issuance of an order restraining PNB from
extrajudicially foreclosing the mortgage. In its Order
dated August 19, 1983, the intestate court denied
Josephine’s motion. Hence, PNB was able to foreclose
the mortgage in its favor.
Petitioners Josephine and Eleanor filed motions with
the intestate court to set aside orders of the court. They
were denied. Thus, Josephine and Eleanor filed a
complaint for Nullification of Mortgage Contracts and
Foreclosure Proceedings and Damages against Agustin,
PNB, Arturo Arguna, PLEI, etc. Trial court in effect
rendered judgment for the plaintiffs. CA reversed and
ruled that petitioners, while ostensibly questioning the
validity of the contracts of mortgage and sale entered
into by their father Agustin, were essentially attacking
collaterally the validity of the four (4) orders of the
intestate court.
ISSUE: WON petitioners can obtain relief from the
effects of the contracts of sale and mortgage entered
into by Agustin without first initiating a direct action
against the orders of the intestate court authorizing the
challenged contracts YES
HELD:
Trial Court had jurisdiction over the subject matter
The trial court acquired jurisdiction over the subject
matter of the case upon the allegations in the complaint
that said contracts were entered into despite lack of
notices to the heirs of the petition for the approval of
those contracts by the intestate court.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Contrary to the view of the Court of Appeals, the action
which petitioners lodged with the trial court in Civil
Case No. 16,802 is not an action to annul the orders of
the intestate court, which, according to CA, cannot be
done collaterally. It is the validity of the contracts of
mortgage and sale which is directly attacked in the
action.
Orders of the court were null and void for lack of
compliance with notice requirements
And, in the exercise of its jurisdiction, the trial court
made a factual finding in its decision of August 7, 1998
that petitioners were, in fact, not notified by their
father Agustin of the filing of his petitions for
permission to mortgage/sell the estate properties. The
trial court made the correct conclusion of law that the
challenged orders of the intestate court granting
Agustin’s petitions were null and void for lack of
compliance with the mandatory requirements of Rule
89 of the Rules of Court, particularly Sections 2, 4, 7
thereof...
(See Sections 2 and 4: there must be written notice to
the heirs, devisees and legatees)
Sec. 7. Regulations for granting authority to sell,
mortgage, or otherwise encumber estate. –
xxx (b) The court shall thereupon fix a time and place for
hearing such petition, and cause notice stating the
nature of the petition, the reason for the same, and the
time and place of hearing, to be given personally or by
mail to the persons interested, and may cause such
further notice to be given, by publication or otherwise,
as it shall deem proper".
Settled is the rule in this jurisdiction that when an order
authorizing the sale or encumbrance of real property
was issued by the testate or intestate court without
previous notice to the heirs, devisees and legatees as
required by the Rules, it is not only the contract itself
Alvar, Ceballo, Cuabo
3Manresa
which is null and void but also the order of the court
authorizing the same.
The requirements of Rule 89 of the Rules of Court are
mandatory and failure to give notice to the heirs would
invalidate the authority granted by the
intestate/probate court to mortgage or sell estate
assets.
Here, it appears that petitioners were never notified of
the several petitions filed by Agustin with the intestate
court to mortgage and sell the estate properties of his
wife.
According to the trial court, the "[P]etition for Authority
to Increase Mortgage" and "[P]etition for Declaration of
Heirs and for Authority to Increase Indebtedness", filed
by Agustin on July 16, 1973 and October 5, 1974,
respectively, do not contain information that
petitioners were furnished with copies of said petitions.
Also, notices of hearings of those petitions were not
sent to the petitioners.
Issue as to laches:
In the present case, the appellate court erred in
appreciating laches against petitioners. The element of
delay in questioning the subject orders of the intestate
court is sorely lacking. Petitioners were totally unaware
of the plan of Agustin to mortgage and sell the estate
properties. There is no indication that mortgagor PNB
and vendee Arguna had notified petitioners of the
contracts they had executed with Agustin. Although
petitioners finally obtained knowledge of the subject
petitions filed by their father, and eventually challenged
the orders of the intestate court, it is not clear from the
challenged decision of the appellate court when they
(petitioners) actually learned of the existence of said
orders of the intestate court. Absent any indication of
the point in time when petitioners acquired knowledge
of those orders, their alleged delay in impugning the
validity thereof certainly cannot be established. And the
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Court of Appeals cannot simply impute laches against
them.
5. Opulencia v CA
G.R. No. 125835 July 30, 1998
NATALIA CARPENA OPULENCIA, petitioner, vs. COURT
OF APPEALS, ALADIN SIMUNDAC and MIGUEL
OLIVAN, respondents.
FACTS:
Aladin Simundac and Miguel Oliven filed a complaint for
specific performance alleging that defendant Natalia
Carpena Opulencia executed in their favor a
"CONTRACT TO SELL" Lot 2125 of the Sta. Rosa Estate;
that plaintiffs paid a downpayment of P300,000.00 but
defendant, despite demands, failed to comply with her
obligations under the contract.
Natalia admitted the execution of the contract in favor
of plaintiffs and receipt of P300,000.00 as
downpayment. However, she alleged that the property
subject of the contract formed part of the Estate of
Demetrio Carpena (Natalia's father), in respect of which
a petition for probate was filed with the RTC Laguna ;
that at the time the contract was executed, the parties
were aware of the pendency of the probate proceeding;
that the contract to sell was not approved by the
probate court; that realizing the nullity of the contract ,
Natalia had offered to return the downpayment
received plaintiffs but the latter refused to accept it;
that plaintiffs further failed to provide funds for the
tenant who demanded P150,00.00 in payment of his
tenancy rights on the land; that Natalia had chosen to
rescind the contract.
A demurrer to evidence was filed by Natalia which the
Trial Court granted .
On appeal, the CA declared the Contract to Sell valid,
subject to the outcome of the testate proceedings on
Demetrio Carpena's estate hence this petition.
ISSUE: WON a contract to sell a real property involved
in restate proceedings valid and binding without the
approval of the probate court.
Alvar, Ceballo, Cuabo
3Manresa
HELD:
Petitioner entered into the Contract to Sell in her
capacity as heiress and not as executrix or
administratix; No Court approval required
In a nutshell, petitioner contends that "where the
estate of the deceased person is already the subject of a
testate or intestate proceeding, the administrator
cannot enter into any transaction involving it without
prior approval of the Probate Court." She maintains that
the Contract to Sell is void because it was not approved
by the probate court, as required by Section 7, Rule 89
of the Rules of Court:
Sec. 7. Regulations for granting authority to sell, mortgage, or
otherwise encumber estate. — The court having jurisdiction of
the estate of the deceased may authorize the executor or
administrator to sell, mortgage, or otherwise encumber real
estate, in cases provided by these rules and when it appears
necessary or beneficial, under the following regulations:
xxx xxx xxx
As correctly ruled by the Court of Appeals, Section 7 of
Rule 89 of the Rules of Court is not applicable, because
petitioner entered into the Contract to Sell in her
capacity as an heiress, not as an executrix or
administratrix of the estate. In the contract, she
represented herself as the "lawful owner" and seller of
the subject parcel of land. She also explained the
reason for the sale to be "difficulties in her living"
conditions and consequent "need of cash." These
representations clearly evince that she was not acting
on behalf of the estate under probate when she
entered into the Contract to Sell. Accordingly, the
jurisprudence cited by petitioners has no application to
the instant case.
We emphasize that hereditary rights are vested in the
heir or heirs from the moment of the decedent's death.
Petitioner, therefore, became the owner of her
hereditary share the moment her father died. Thus, the
lack of judicial approval does not invalidate the Contract
to Sell, because the petitioner has the substantive right
to sell the whole or a part of her share in the estate of
her late father.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Thus, in Jakosalem vs. Rafols, the Court resolved an
identical issue under the old Civil Code and held:
Art. 440 of the Civil Code provides that "the possession
of hereditary property is deemed to be transmitted to
the heir without interruption from the instant of the
death of the decedent, in case the inheritance be
accepted."
And Manresa with reason states that upon the death of
a person, each of his heirs "becomes the undivided
owner of the whole estate left with respect to the part
or portion which might be adjudicated to him, a
community of ownership being thus formed among the
coowners of the estate while it remains undivided." . . .
And according to article 399 of the Civil Code, every part
owner may assign or mortgage his part in the common
property, and the effect of such assignment or
mortgage shall be limited to the portion which may be
allotted him in the partition upon the dissolution of the
community. Hence, where some of the heirs, without
the concurrence of the others, sold a property left by
their deceased father, this Court, speaking thru its then
Chief Justice Cayetano Arellano, said that the sale was
valid, but that the effect thereof was limited to the
share which may be allotted to the vendors upon the
partition of the estate.
Administration of the Estate Not Prejudiced by the
Contract to Sell
Petitioner further contends that "[t]o sanction the sale
at this stage would bring about a partial distribution of
the decedent's estate pending the final termination of
the testate proceedings." This becomes all the more
significant in the light of the trial court's finding, as
stated in its Order dated August 20, 1997, that "the
legitimate of one of the heirs has been impaired."
Petitioner's contention is not convincing. The Contract
to Sell stipulates that petitioner's offer to sell is
contingent on the "complete clearance of the court on
the Last Will Testament of her father." Consequently,
although the Contract to Sell was perfected between
the petitioner and private respondents during the
pendency of the probate proceedings, the
consummation of the sale or the transfer of ownership
Alvar, Ceballo, Cuabo
3Manresa
over the parcel of land to the private respondents is
subject to the full payment of the purchase price and to
the termination and outcome of the testate
proceedings. Therefore, there is no basis for petitioner's
apprehension that the Contract to Sell may result in a
premature partition and distribution of the properties
of the estate. Indeed, it is settled that "the sale made by
an heir of his share in an inheritance, subject to the
pending administration, in no wise stands in the way of
such administration."
Petitioner Natalia is in Estoppel
Finally, petitioner is estopped from backing out of her
representations in her valid Contract to Sell with private
respondents, from whom she had already received
P300,000 as initial payment of the purchase price.
Petitioner may not renege on her own acts and
representations, to the prejudice of the private
respondents who have relied on them. Jurisprudence
teaches us that neither the law nor the courts will
extricate a party from an unwise or undesirable
contract he or she entered into with all the required
formalities and with full awareness of its
consequences.
6.Lee v RTC of Quezon City
G.R. No. 146006 ,February 23, 2004
FACTS:
Dr.Juvencio P. Ortañez died. He left behind a wife
(Juliana Salgado Ortañez), three legitimate children
(Rafael, Jose and Antonio Ortañez) and five illegitimate
children by Ligaya Novicio (herein private respondent
Ma. Divina Ortañez-Enderes and her siblings Jose,
Romeo, Enrico Manuel and Cesar, all surnamed
Ortañez).
On September 1980, Rafael Ortañez filed before the CFI
(now RTC) a petition for letters of administration of the
intestate estate of Dr.Ortañez. Ma.Divina Ortañez-
Enderes and her siblings filed an opposition to the
petition for letters of administration and, in a
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
subsequent urgent motion, prayed that the intestate
court appoint a special administrator.
RTC appointed Rafael and Jose Ortañez joint special
administrators (SA) of their father’s estate.
It appears that several years before (but already during
the pendency of the intestate proceedings RTC), Juliana
Ortañez (surviving spouse) and her two children,
entered into a memorandum of agreement dated
March 4, 1982 for the extrajudicial settlement of the
estate of Dr.Juvencio Ortañez, partitioning the estate
(including the Philinterlife shares of stock) among
themselves. This was the basis of the number of shares
separately sold by Juliana Ortañez on April 15, 1989
(1,014 shares) and by Jose Ortañez on October 30, 1991
(1,011 shares) in favor of herein petitioner FLAG.
SA Enderes filed an urgent motion to declare void ab
initio the memorandum of agreement dated March 4,
1982. On January 9, 1996, she filed a motion to declare
the partial nullity of the extrajudicial settlement of the
decedent’s estate. These motions were opposed by SA
Jose Ortañez
On February 4, 1997, Jose Ortañez filed an omnibus
motion for (1) the approval of the deeds of sale of the
Philinterlife shares of stock and (2) the release of Ma.
Divina Ortañez-Enderes as special administratrix of the
Philinterlife shares of stock on the ground that there
were no longer any shares of stock for her to
administer.
RTC denied the omnibus motion of Special
Administrator Jose Ortañez for the approval of the
deeds of sale for the reason that Under
the Godoy case, supra, it was held in substance that a
sale of a property of the estate withoutan Order of the
probate court is void and passes no title to the
purchaser. Since the sales in question were entered into
by Juliana S. Ortañez and Jose S. Ortañez in their
Alvar, Ceballo, Cuabo
3Manresa
personal capacity without prior approval of the Court,
the same is not binding upon the Estate.
ISSUE: WON the RTC was correct in declaring the sale of
the shares to flag void? YES.
HELD:
Sale of property without court approval is void and
passes no title to the purchaser. .
it is clear that Juliana Ortañez, and her three sons, Jose,
Rafael and Antonio, all surnamed Ortañez, invalidly
entered into a memorandum of agreement
extrajudicially partitioning the intestate estate among
themselves, despite their knowledge that there were
other heirs or claimants to the estate and before final
settlement of the estate by the intestate court. Since
the appropriation of the estate properties by Juliana
Ortañez and her children (Jose, Rafael and Antonio
Ortañez) was invalid, the subsequent sale thereof by
Juliana and Jose to a third party (FLAG), without court
approval, was likewise void.
An heir can sell his right, interest, or participation in the
property under administration under Art. 533 of the
Civil Code which provides that possession of hereditary
property is deemed transmitted to the heir without
interruption from the moment of death of the
decedent. However, an heir can only alienate such
portion of the estate that may be allotted to him in the
division of the estate by the probate or intestate court
after final adjudication, that is, after all debtors shall
have been paid or the devisees or legatees shall have
been given their shares.21 This means that an heir may
only sell his ideal or undivided share in the estate, not
any specific property therein. In the present case,
Juliana Ortañez and Jose Ortañez sold specific
properties of the estate (1,014 and 1,011 shares of
stock in Philinterlife) in favor of petitioner FLAG. This
they could not lawfully do pending the final
adjudication of the estate by the intestate court
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
because of the undue prejudice it would cause the
other claimants to the estate, as what happened in the
present case.
OTHER CONTENTIONS of Juliana Ortañez et al:
 That the probate court could not issue a writ of
execution with regard to its order nullifying the
sale because said order was merely provisional
i.e., that the determination by a probate or
intestate court of whether a property is included
or excluded in the inventory of the estate being
provisional in nature, cannot be the subject of
execution.
SC: We are not dealing here with the issue of inclusion
or exclusion of properties in the inventory of the estate
because there is no question that, from the very start,
the Philinterlife shares of stock were owned by the
decedent, Dr.JuvencioOrtañez. Rather, we are
concerned here with the effect of the sale made by the
decedent’s heirs, Juliana Ortañez and Jose Ortañez,
without the required approval of the intestate
court.This being so, the contention of petitioners that
the determination of the intestate court was merely
provisional and should have been threshed out in a
separate proceeding is incorrect.
 That the writ of execution should not be
executed against them because they were not
notified, nor they were aware, of the
proceedings nullifying the sale of the shares of
stock.
SC: We are not persuaded. The title of the purchaser
like herein petitioner FLAG can be struck down by the
intestate court after a clear showing of the nullity of the
alienation. This is the logical consequence of our ruling
in Godoyand in several subsequent cases. The sale of
any property of the estate by an administrator or
prospective heir without order of the probate or
Alvar, Ceballo, Cuabo
3Manresa
intestate court is void and passes no title to the
purchaser.
 That they were denied of due process
SC: It must be noted that private respondent-Special
Administratrix Enderes filed before the intestate court
(RTC of Quezon City, Branch 85) a "Motion to Declare
Void Ab Initio Deeds of Sale of Philinterlife Shares of
Stock" on March 22, 1996. But as early as 1994,
petitioners already knew of the pending settlement
proceedings and that the shares they bought were
under the administration by the intestate court because
private respondent Ma. Divina Ortañez-Enderes and her
mother Ligaya Novicio had filed a case against them at
the Securities and Exchange Commission.
7. Liu v Loy
G.R. No. 145982, July 3, 2003
FACTS:
Teodoro Vaño (Teodoro), as attorney-in-fact of Jose
Vaño, sold seven lots to Benito Liu, through petitioner
Frank Liu (Frank), and to Cirilo Pangalo. The lots sold to
Benito Liu were Lot Nos. 5, 6, 13, 14, and 15 while the
lots sold to Cirilo Pangalo were Lot Nos. 14 and 15.
When Jose Vaño passed away, Benito Liu stopped
further payments but after the Supreme Court declared
valid the will of his father, Teodoro informed Frank that
he could already transfer the titles to the buyers’ names
upon payment of the balance of the purchase price.
It was only after nine years that Frank responded that
he was ready to pay the balance of the purchase price
of the seven lots after he had purchased the lots
formerly sold to Benito Liu and Cirilo Pangalo. He
requested for the execution of a deed of sale of the lots
in his name and the delivery of the titles to him. Despite
repeated demands by Frank, Teodoro sold Lot No. 6 to
respondent Teresita Loy.
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Frank then filed a complaint against Teodoro for specific
performance, execution of deed of absolute sale,
issuance of certificates of title and construction of
subdivision roads, before the Court of First Instance and
a notice of lis pendens on the seven lots was filed
before the Register of Deeds.
A year after, Teodoro sold Lot No. 5 to respondent
Alfredo Loy. When the complaint filed by Frank was
dismissed, he filed his claim to the probate court which
was subsequently granted. Milagros Vaño, who
succeeded as administratrix of the Estate of Jose Vaño,
executed a deed of conveyance covering the seven lots
in favor of Frank. The probate court, however, also
approved the sale to respondents Teresita and Alfredo
Loy upon their motion and new titles were issued under
their name.
As a result, Frank Liu filed a complaint for reconveyance
or annulment of title of Lot Nos. 5 and6. The trial court
confirmed the unilateral extrajudicial rescission of the
contract by the late Teodoro Vaño and it was later on
affirmed by the Court of Appeals.
Summary of facts: while the decedent was still living,
his son and attorney-in-fact sold in behalf of the alleged
decedent certain parcels of land to Frank Liu. After the
decedent died, the son sold the same properties to two
persons. Upon an ex parte motion filed by the 2nd set
of buyers of estate properties, the probate court
approved the sale to them of said properties.
Consequently, certificates of title covering the estate
properties were cancelled and new titles issued to the
2nd set of buyers. Frank Liu filed a complaint for
reconveyance/ annulment of title with the Regional
Trial Court. The trial court dismissed the complaint and
the Court of Appeals affirmed the dismissal. When the
case was appealed to us, we set aside the decision of
the appellate court and declared the probate court's
approval of the sale as completely void due to the
failure of the 2nd set of buyers to notify the heir-
Alvar, Ceballo, Cuabo
3Manresa
administratrix of the motion and hearing for the sale of
estate property.
ISSUE: WON the contract sell made by the decedent
prevails over a contract of sale made by the
administrator without court approval YES
HELD:
Whether there was a valid cancellation of the contract
to sell
There was no valid cancellation of the contract to sell
because there was no written notice of the cancellation
to Benito Liu or Frank Liu. There was even no implied
cancellation of the contract to sell. The trial court
merely "viewed" the alleged "unilateral extrajudicial
rescission" from the letter of Teodoro Vaño, dated 1
January 1955, addressed to Frank Liu (but there was no
mention of rescission in the letter).
The fact that Teodoro Vaño advised Frank Liu to file his
claim with the probate court is certainly not the
conduct of one who supposedly unilaterally rescinded
the contract with Frank Liu.
Whether the registration by the Loys of their contracts
of sale made them the first registrants in good faith to
defeat prior buyers
The registration by the Loys of their contracts of sale did
not defeat the right of prior buyers because the person
who signed the Loys’ contracts was not the registered
owner. The registered owner of Lot Nos. 5 and 6 was
the "Estate of Jose Vaño." Teodoro Vaño was the seller
in the contract of sale with Alfredo Loy, Jr. The Estate of
Jose Vaño was the seller in the contract of sale with
Teresita Loy. Teodoro Vaño signed both contracts of
sale. The rule is well-settled that "one who buys from a
person who is not the registered owner is not a
purchaser in good faith."
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Whether the probate court’s ex-parte approval of the
contracts of the Loys was valid
Section 8, Rule 89 of the 1964 Rules of Court specifically
requires notice to all interested parties in any
application for court approval to convey property
contracted by the decedent in his lifetime. Despite the
clear requirement of Section 8 of Rule 89, the Loys did
not notify the administratrix of the motion and hearing
to approve the sale of the lots to them. The
administratrix, who had already signed the deed of sale
to Frank Liu as directed by the same probate court,
objected to the sale of the same lots to the Loys.
The failure to notify the administratrix and other
interested persons rendered the sale to the Loys void.
In this case, the administratrix, the wife of the deceased
Teodoro Vaño, was not notified of the motion and
hearing to approve the sale of the lots to the Loys.
Frank Liu did not also receive any notice, although he
obviously was an interested party. The issuance of new
titles to the Loys on 10 May 1976 by the Registry of
Deeds did not vest title to the Loys because the
"conveyance itself" was "completely void." The
consequences for the failure to notify the administratrix
and other interested parties must be borne by the Loys.
Necessity of court approval of sales
Indisputably, an heir can sell his interest in the estate of
the decedent, or even his interest in specific properties
of the estate. However, for such disposition to take
effect against third parties, the court must approve such
disposition to protect the rights of creditors of the
estate. What the deceased can transfer to his heirs is
only the net estate, that is, the gross estate less the
liabilities.
In Alfredo Loy’s case, his seller executed the contract of
sale after the death of the registered owner Jose Vaño.
The seller was Teodoro Vaño who sold the lot in his
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capacity as sole heir of the deceased Jose Vaño. Thus,
Opulencia applies to the sale of the lot to Alfredo Loy,
Jr., which means that the contract of sale was binding
between Teodoro Vaño and Alfredo Loy, Jr., but subject
to the outcome of the probate proceedings.
In Frank Liu’s case, as successor-in-interest of Benito
Liu, his seller was Jose Vaño, who during his lifetime
executed the contract to sell through an attorney-in-
fact, Teodoro Vaño. This is a disposition of property
contracted by the decedent during his lifetime.
Thus, Frank Liu applied to the probate court for the
grant of authority to the administratrix to convey the
lots in accordance with the contract made by the
decedent Jose Vaño during his lifetime. The probate
court approved the application.
In Teresita Loy’s case, her seller was the Estate of Jose
Vaño. Teodoro Vaño executed the contract of sale in his
capacity as administrator of the Estate of Jose Vaño, the
registered owner of the lots. The Court has held that a
sale of estate property made by an administrator
without court authority is void and does not confer on
the purchaser a title that is available against a
succeeding administrator.
Clearly, both the law and jurisprudence expressly
require court approval before any sale of estate
property by an executor or administrator can take
effect.
8. WT Construction v Canete
G.R. No. 157287, February 12, 2008
WT CONSTRUCTION, INC., petitioner, vs. HON. ULRIC R.
CAÑETE, Presiding Judge, RTC, Mandaue City, Branch
55, and the ESTATE OF ALBERTO CABAHUG, thru its
Administratrix, JULIANA VDA. DE
CABAHUG, respondents.
FACTS:
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Juliana vda. De Cabahug filed a case for the settlement
of the estate of her deceased husband, Alberto
Cabahug, before the RTC of Mandaue City .
On January 10, 1992, Ciriaco Cabahug, the administrator
of the estate and heir of Alberto, was granted the
authority to sell one of the properties of the estate to
defray the expenses for the payment of taxes due from
the estate. The property to be sold was the parcel of
land subject of the petition, Lot 1, FLS-322-D.
Ciriaco entered into an Agreement for Sale of Land with
Downpayment with WT Construction for P8,691,000 on
September 23, 1996. In accordance with the agreement,
WT Construction made a down payment of fifty percent
(50%) of the purchase price or P4,431,600 [should
be P4,345,500]. The balance of the purchase price was
to be paid "immediately after the land is free from all
occupants/obstructions."
Subsequently, WT Construction took steps in clearing
the property of its occupants by filing a complaint for
ejectment in 1998 with the MTC of Mandaue City .
It was later discovered that Ciriaco did not inform his
co-heirs of the sale and was thereafter relieved as
administrator.
Consequently, Administrator Linda Cabahug-Antigue,
along with her co-heirs, demanded from WT
Construction the payment of the balance of the
purchase price. Referring to the provision of the
agreement relating to the payment of the balance of
the purchase price conditioned upon the removal of
occupants and obstructions in the property, WT
Construction refused to pay the remaining balance.
On July 6, 2000, The Court issued an Order, giving WT
Construction a period within which to manifest its
intent to rescind the sale ;that if no manifestation is
filed within the stated period, WT Construction shall
be ordered to pay the estate of Alberto Cabahug the
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amount of P4,259,400.00 less expenses incurred in the
ejectment case within a period of fifteen (15) days,
otherwise, failure to do so will prompt the court to issue
a writ of execution as prayed for by movant-
administratrix.
A Writ of Execution of the above Order was issued due
to WT Construction’s failure to file a manifestation.
The Motion to Quash the Writ of Execution was denied.
On Certiorari, CA likewise denied the quashal.
ISSUE: WON the probate Court can adjudicate the rights
of parties in a Deed of Sale concerning a property
belonging to the estate , such sale being for the purpose
of payment of taxes due from the estate. YES
HELD:
As to petitioner’s argument that the probate/estate
court cannot adjudicate the rights and obligations of the
parties under the deed of sale, the CA rightly found that
this was a new issue not raised in the probate/estate
court. Furthermore, the deed of sale in question is the
sale of the property of the estate to pay for taxes, a
matter definitely within the power of the
probate/estate court to order.
It is but logical that probate/estate courts can enforce
obligations under such a deed of sale. Otherwise, they
would not be able to secure the proceeds to pay for the
taxes and this would defeat the purpose of the
proceedings to settle the estate. Stated otherwise, the
power to enforce obligations under the deed of sale of a
property ordered sold to pay debts of the estate is but a
necessary incident of the power of a probate/estate
court to order and effect such sale in the first place.
Distribution and Partition of Estate (Rule 90)
RULE 90
Distribution and Partition of the Estate
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
Section 1. When order for distribution of reside made.
— When the debts, funeral charges, and expenses of
administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in
accordance with law, have been paid, the court, on the
application of the executor or administrator, or of a
person interested in the estate, and after hearing upon
notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled, and
such persons may demand and recover their respective
shares from the executor or administrator, or any other
person having the same in his possession. If there is a
controversy before the court as to who are the lawful
heirs of the deceased person or as the distributive
shares to which each person is entitled under the law,
the controversy shall be heard and decided as in
ordinary cases.
No distribution shall be allowed until the payment of
the obligations above mentioned has been made or
provided for, unless the distributees, or any of them,
give a bond, in a sum to be fixed by the court,
conditioned for the payment of said obligations within
such time as the court directs.
Section 2. Questions as to advancement to be
determined. — Questions as to advancement made, or
alleged to have been made, by the deceased to any heir
may be heard and determined by the court having
jurisdiction of the estate proceedings; and the final
order of the court thereon shall be binding on the
person raising the questions and on the heir.
Section 3. By whom expenses of partition paid. — If at
the time of distribution the executor or administrator
has retained sufficient effects in his hands which may
lawfully be applied for the expenses of partition of the
properties distributed, such expenses of partition may
be paid by such executor or administrator when it
appears equitable to the court and not inconsistent
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with the intention of the testator; otherwise, they shall
be paid by the parties in proportion to their respective
shares or interest in the premises, and the
apportionment shall be settled and allowed by the
court, and, if any person interested in the partition does
not pay his proportion or share, the court may issue an
execution in the name of the executor or administrator
against the party not paying the sum assessed.
Section 4. Recording the order of partition of estate. —
Certified copies of final orders and judgments of the
court relating to the real estate or the partition thereof
shall be recorded in the registry of deeds of the
province where the property is situated.
1. Tayag v CA
G.R. No. 95229 June 9, 1992
CORITO OCAMPO TAYAG, petitioner, vs. HON. COURT
OF APPEALS and EMILIE DAYRIT CUYUGAN, respondent.
FACTS:
EMILIE DAYRIT CUYUGAN in her capacity as mother and
legal guardian of minor Chad D. Cuyugan, filed on April
9, 1987 a complaint (CIVIL CASE) denominated "Claim
for Inheritance" against herein petitioner as the
administratrix of the estate of the late Atty. Ricardo
Ocampo alleging that chad is the illegitimate child of the
other (her basis for filiation is handwritten instrument
signed by the parent concerned).
Petitioner (administratix) contends that the action to
claim for inheritance filed by herein private respondent
in behalf of the minor child, Chad Cuyugan, is
premature and the complaint states no cause of action,
she submits that the recognition of the minor child,
either voluntarily or by judicial action, by the alleged
putative father must first be established before the
former can invoke his right to succeed and participate in
the estate of the latter. Petitioner asseverates that
since there is no allegation of such recognition in the
complaint denominated as "Claim for Inheritance," then
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
there exists no basis for private respondent's aforesaid
claim and, consequently, the complaint should be
dismissed.
The trial court denied the motion to dismiss filed by the
administratrix.
ISSUE: WON the lower court was correct in taking
cognizance of the complaint denominated as “claim for
inheritance”? YES
HELD:
The instant case is similar to the case of Paulino vs.
Paulino, et al., wherein the petitioner, as plaintiff,
brought an action against the private respondents, as
defendants, to compel them to give her share of
inheritance in the estate of the late Marcos Paulino,
claiming and alleging, inter alia, that she is the
illegitimate child of the deceased; that no proceedings
for the settlement of the deceased's estate had been
commenced in court; and that the defendants had
refused and failed to deliver her share in the estate of
the deceased. She accordingly prayed that the
defendants therein be ordered to deliver her aforesaid
share. The defendants moved for the dismissal of her
complaint on the ground that it states no cause of
action and that, even if it does, the same is barred by
prescription.
The only difference between the aforecited case and
the case at bar is that at the time of the filing of the
complaint therein, the petitioner in that case had
already reached the age of majority, whereas the
claimant in the present case is still a minor. In Paulino,
we held that an illegitimate child, to be entitled to
support and successional rights from the putative or
presumed parent, must prove his filiation to the latter.
We also said that it is necessary to allege in the
complaint that the putative father had acknowledged
and recognized the illegitimate child because such
acknowledgment is essential to and is the basis of the
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right to inherit. There being no allegation of such
acknowledgment, the action becomes one to compel
recognition which cannot be brought after the death of
the putative father. The ratio decidendi in Paulino,
therefore, is not the absence of a cause of action for
failure of the petitioner to allege the fact of
acknowledgment in the complaint, but the prescription
of the action.
Applying the foregoing principles to the case at bar,
although petitioner contends that the complaint filed by
herein private respondent merely alleges that the minor
Chad Cuyugan is an illegitimate child of the deceased
and is actually a claim for inheritance, from the
allegations therein the same may be considered as one
to compel recognition. Further that the two causes of
action, one to compel recognition and the other to
claim inheritance, may be joined in one complaint is not
new in our jurisprudence.
As early as 1922, we had occasion to rule thereon in Briz
vs. Briz, et al., wherein we said:
The question whether a person in the position of the
present plaintiff can any event maintain a complex
action to compel recognition as a natural child and at
the same time to obtain ulterior relief in the character
of heir, is one which, in the opinion of this court must
be answered in the affirmative, provided always that
the conditions justifying the joinder of the two distinct
causes of action are present in the particular case. In,
other words, there is no absolute necessity requiring
that the action to compel acknowledgment should have
been instituted and prosecuted to a successful
conclusion prior to the action in which that same
plaintiff seers additional relief in the character of heir.
Certainly, there is nothing so peculiar to the action to
compel acknowledgment as to require that a rule
should be here applied different from that generally
applicable in other cases. . .
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu
The conclusion above stated, though not heretofore
explicitly formulated by this court, is undoubtedly to
some extent supported by our prior decisions. Thus, we
have held in numerous cases, and the doctrine must be
considered well settled, that a natural child having a
right to compel acknowledgment, but who has not been
in fact legally acknowledged, may maintain partition
proceedings for the division of the inheritance against
his co-heirs . . .; and the same person may intervene in
proceedings for the distribution of the estate of his
deceased natural father, or mother . . . In neither of
these situations has it been thought necessary for the
plaintiff to show a prior decree compelling
acknowledgment. The obvious reason is that in partition
suits and distribution proceedings the other persons
who might take by inheritance are before the court; and
the declaration of heirship is appropriate to such
proceedings.
SC ultimately held that Article 285 of the Civil Code
(which provides that action may be brought until 4
years after reaching the age of majority) and NOT the
FC is applicable since right of action of the minor child
has been vested by the filing of the complaint in court
under the regime of the Civil Code and prior to the
effectivity of the Family Code. Hence, the action has for
filiation of an illegitimate child has not prescribed.
Digester’s note: I think that this has something to do
with the following provision
Rule 90; Section 1- xxx If there is a controversy before
the court as to who are the lawful heirs of the deceased
person or as the distributive shares to which each
person is entitled under the law, the controversy shall
be heard and decided as in ordinary cases.xxx
Expenses of Partition (Rule 90, Sec. 3)
Recording of Partition Order ( Rule 90, Sec. 4)
Escheats (Rule 91, Sec. 1)
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Proceedings Covered (Rule 91, Sec. 5)
Procedure (Rule 91, Sec. 1,2,3)
Recovery of Escheated Properties (Rule 91, Sec. 4)
RULE 91
Escheats
Section 1. When an by whom petition filed. — When a
person dies intestate, seized of real property in the
Philippines, leaving no heir or person by law entitled to
the same, the Solicitor General or his representative in
behalf of the Republic of the Philippines, may file a
petition in the Court of First Instance of the province
where the deceased last resided or in which he had
estate, if he resided out of the Philippines, setting forth
the facts, and praying that the estate of the deceased
be declared escheated.
Section 2. Order for hearing. — If the petition is
sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and
place for the hearing thereof, which date shall be not
more than six (6) months after the entry of the order,
and shall direct that a copy of the order be published
before the hearing at least once a week for six (6)
successive weeks in some newspaper of general
circulation published in the province, as the court shall
be deem best.
Section 3. Hearing and judgment. — Upon satisfactory
proof in open court on the date fixed in the order that
such order has been published as directed and that the
person died intestate, seized of real or personal
property in the Philippines, leaving no heir or person
entitled to the same, and no sufficient cause being
shown to the contrary, the court shall adjudge that the
estate of the estate of the deceased in the Philippines,
after the payment of just debts and charges, shall
escheat; and shall, pursuant to law, assign the personal
 Case Digest for Special Proceedings
Based on the Syllabus of Atty. Geraldine Q. Tiu

estate to the municipality or city where he last resided

in the Philippines, and the real estate to the
municipalities or cities, respectively, in which the same
is situated. If the deceased never resided in the
Philippines, the whole estate may be assigned to the
respective municipalities or cities where the same is
located. Shall estate shall be for the benefit of public
schools, and public charitable institutions and centers in
said municipalities or cities.

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

its own motion, may order the establishment of a
permanent trust, so that the only income from the
property shall be used.

Section 4. When and by whom claim to estate filed. — If

a devisee, legatee, heir, widow, widower, or other
person entitled to such estate appears and files a claim
thereto with the court within five (5) years from the
date of such judgment, such person shall have
possession of and title to the same, or if sold, the
municipality or city shall be accountable to him for the
proceeds after deducting reasonable charges for the
care of the estate; but a claim not made within the said
time shall be forever barred.

Section 5. Other actions for escheat. — Until otherwise

provided by law, actions reversion or escheat of
properties alienated in violation of the Constitution or
of any statute shall be governed by this rule, except that
the action shall be instituted in the province where the
land lies in whole or in part.

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