1

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

I. Introduction A. Rule 72 – Meaning and scope of special proceedings

Rule 1, Sec 3(c). A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. Vda. de. Manalo v. CA. It is a fundamental rule that, in the determination of the nature of an action or proceeding, the averments and the character of the relief sought in the complaint, or petition, as in the case at bar, shall be controlling. A careful scrutiny of the Petition for Issuance of Letters of Administration, Settlement and Distribution of Estate in SP. PROC. No. 92-63626 belies herein petitioners’ claim that the same is in the nature of an ordinary civil action. The said petition contains sufficient jurisdictional facts required in a petition for the settlement of estate of a deceased person such as the fact of death of the late Troadio Manalo on February 14, 1992, as well as his residence in the City of Manila at the time of his said death. The fact of death of the decedent and of his residence within the country are foundation facts upon which all the subsequent proceedings in the administration of the estate rest. The petition in SP. PROC. No. 92-63626 also contains an enumeration of the names of his legal heirs including a tentative list of the properties left by the deceased which are sought to be settled in the probate proceedings Natcher v. CA. An action is a formal demand of one's right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term "special proceeding" may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon an application or motion." Distinguished from civil action

Rule 2, Sec. 1. Ordinary Civil Actions, basis of. – Every ordinary civil action must be based on a cause of action Rule 2, Sec. 2. Cause of action, defined – A Cause of Action is the act or omission by which a party violates a right of another

B. Importance of Procedural Rules Republic v. Kenrick Dev’t Corp. Procedural rules are [tools] designed to facilitate the adjudication of cases. Courts and litigants alike are thus [enjoined] to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this, we stress, was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.

Like all rules, procedural rules should be followed except only when, for the most persuasive of reasons, they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the prescribed procedure. 21 In this case, respondent failed to show any persuasive reason why it should be exempted from strictly abiding by the rules.

C. Applicability of Rules of Civil Action Rule 72, 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 practicanle, applicable in special proceedings Rule 35. Matute v. CA. In fact, even without the respondent's reservation, it was the bounden duty of the probate judge to schedule the presentation and reception of the respondent's evidence before disposing of the case on the merits because only the movants at that time had presented their evidence. This duty is projected into bolder relief if we consider, which we must, that the aforesaid motion is in form as well as in substance a demurrer to evidence allowed by Rule 35, by virtue of which the defendant does not lose his right to offer evidence in the event that his motion is denied. Said Rule states: After the plaintiff has completed the presentation of his evidence, the defendant without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and law the plaintiff has shown no right to relief. (emphasis supplied) The application of the abovecited Rule in special proceedings, like the case at bar, is authorized by section 2 of Rule 72 which direct that in the "absence of special provisions, the rules provided for in ordinary civil actions shall be, as far as practicable, applicable in special proceedings."

II. Settlement of Estate of Deceased Person Rule 73 – Venue and Process

Sec. 1. Where estate of deceased persons 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 ghe 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. Sec. 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. Sec. 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 their 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 and imprisonment of such person until he performs such order or judgment, or is released. Sec. 4. Presumption of Death – For purposes of settlement of his estate, a person shall ve 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.

A. Venue Eusebio v. Eusebio. Following Rule 75, Sec. 1 (now Rule 73, Sec.1), “If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizens 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 xxx.” Although it is true that shortly before his death Andres bought a house in QC and began moving his belongings from San Fernando thereto, the SC found that there was no clear showing of Andres’s intention to change domicile. The evidence weighed by the CFI Rizal actually proved that Andres still considers San Fernando as his true domicile and that he was moving to QC only for medical purposes without definite intention (animus) to change the same. Moreover, there is a presumption in law against changes of domicile. In other words, there is a presumption in favor of the continuance of an existing domicile. Therefore, the burden of proving a change of domicile lies on those who alleged that a change has occurred. Failing this, and absent any evidence of intention/animus, it is to be presumed that the party has retained the last domicile known to have been possessed by him. This follows from the principle that a domicile acquired is retained until another is gained. Fule v. CA. The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration merely constitute venue. Since the last place of residence of Amado was at Quezon City, and not at Calamba, Laguna, the venue for Fule's petition for letters of administration was improperly laid in the CFI of Calamba. || The word "resides" in Section 1, Rule 73 referring to the situs of the settlement of the estate of deceased persons, means actual residence Malig v. Bush. On jurisdiction issue, court said that Rule 75 Sec. 1 (now R73S1) really concerns venue, and in order to preclude different courts which may properly assume jurisdiction from doing so, the Rule specifies 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.” In the final analysis this action is not necessarily one to annul the partition already made and approved by the probate court, and to reopen the estate proceeding so that a new partition may be made, but for recovery by the plaintiffs of the portion of their alleged inheritance of which, through fraud, they have been deprived. Rodriguez v. Borja. The Bulacan Court of First Instance was entitled to priority in the settlement of the estate in question and the intestate proceedings in the Rizal Court should be discontinued. 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.

2

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

Cuenco v. CA. The court with whom the petition is first filed, must also first take cognizance of the settlement of the estate in order to exercise jurisdiction over it to the exclusion of all other courts. Conversely, such court, may upon learning that a petition for probate of the decedent's last will has been presented in another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and their minor children, and that the allegation of the intestate petition before it stating that the decedent died intestate may be actually false, may decline to take cognizance of the petition and hold the petition before it in abeyance, and instead defer to the second court which has before it the petition for probate of the decedent's alleged last will. De Borja v. Tan. The powers and functions of a special administrator are quite limited. Under Rule 81, section 1, a special administrator is appointed only when there is a delay in granting letters testamentary or of administration occasioned by an appeal from allowance or disallowance of a will or from any other cause, and such special administrator is authorized to collect and take charge of the estate until the questions causing the delay are decided and an executor or administrator thereon appointed || Further, under Rule 87 section 8, a special administrator is also appointed when the regular executor or administrator has a claim against the estate he represents and said special administrator shall have the same power and subject to the same liability as a regular executor or administrator || In other words, a special administrator is appointed only for a limited time and for a specific purpose. Naturally, because of the temporary and special character of his appointment, it was deemed by the law not advisable for any party to appeal from said temporary appointment. On the other hand, 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|| Taking into consideration the circumstances obtaining in this case, that petitioner Francisco though originally designated administrator, is and has for several years been one only due to his physical and mental disability, as a result of which respondent Jose de Borja is now practically the sole administrator there is no question that for all practical and legal purposes the appointment of Jose de Borja as co-administrator is equivalent to and has the same effect as a sole regular or general administrator. In view of the foregoing, the appointment of a co-administrator is appealable. The petition for mandamus is granted and respondent Judge is hereby directed to approve the record on appeal and to give due course to the appeal Macias v. Uy Kim. Any challenge to the validity of a will, any objection to the authentication thereof, and every demand or claim which any heir, delegate or party in interest in a testate or intestate succession may make, must be acted upon and decided within the same special proceedings, not in a separate action, and the same judge having jurisdiction in the administration of the estate shall take cognizance of the question raised, inasmuch as when the day comes he will be called upon to make distribution and adjudication of the property to the interested parties

B. Dissolution of Marriage Bernardo v. CA. While as a general rule, probate court does not have jurisdiction to adjudicate on the title of the properties, this case falls under the exception, which is: 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; 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 Falcatan v. Sanchez. In proceedings for the summary settlement of the estate of a deceased person under section 2, Rule 74 of the Rules of Court, the court has no jurisdiction to pass upon the question of title to real property is true only where the title is disputed by a third person, not by the surviving spouse or heirs of the deceased, as successors of the latter. Ermac v. Medelo. The policy of the law is to terminate proceedings for the settlement of the estate of deceased persons with the least loss of time. This is specially true with small estates for which the rules provide precisely a summary procedure dispensing with the appointment of an administrator together with the other involved and cumbersome steps ordinarily required in the determination of the assets of the deceased and the persons entitled to inhirit therefrom and the payment of his obligations. Definitely, the probate court is not the best forum for the resolution of adverse claims of ownership of any property ostensibly belonging to the decedent’s estate. While there are settled exceptions to this rule as applied to regular administration proceedings, it is not proper to delay the summary settlement of a deceased person just because an heir or a third person claims that certain properties do not belong to the estate but to him. Such claim must be ventilated in an independent action, and the probate court should proceed to the distribution of the estate, if there are no other legal obstacles to it, for after all, such distribution must always be subject to the results of the suit. For the protection of the claimant the appropriate step is to have the proper annotation of lis pendens entered. PCIB v. Escolin. As a rule, upon the death of a spouse, properties continue to be conjugal property in the hands of the surviving spouse. But it is provided in the Civil Code that upon the dissolution of the conjugal partnership, an inventory shall immediately be made and in the event of the death of the wife, the law imposes upon the husband the duty of liquidating the affairs of the partnership without delay || Under Section 2 of Rule 73, “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.” Indeed, it is true that the last sentence of this provision allows or permits the conjugal partnership of spouses who are both deceased to be settled or liquidated in the testate or intestate proceedings of either, but precisely because said sentence allows or permits that the liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it should be made. Calma v. Tañedo. Eulalio (husband) having ceased as legal administrator of the conjugal property had with his wife, no complaint can be brought against him for the recovery of an indebtedness chargeable against said conjugal property, and that the action should be instituted in the testamentary proceedings of the deceased in the manner provided by law, by filing it first with the committee on claims. Ocampo v. Potenciano. The Court of Appeals erred in supposing that the surviving spouse had such authority as de facto administrator of the conjugal estate. As pointed out by appellants, the decisions relied on by that court in support of its view are now obsolete. Those decisions laid down the rule that, upon the dissolution of the marriage by the death of the wife, the husband must liquidate the partnership affairs. But the procedure has been changed by Act No. 3176 (approved on November 24, 1924), now section 2, Rule 75, of the Rules of Court, which provides that when the marriage is dissolved by the death of either husband or wife, the partnership affairs must be liquidated in the testate or intestate proceedings of the deceased spouse

C. Jurisdiction of Probate Court See also Rule 90, Sec. 1. Reyes v. Ysip. The order of the court did not amount to a prohibition to the petitioner to take part in the hearing for the probate of the will and was motivated by a desire to avoid a multiplicity of the issues thereat and the limitation thereof to the execution and the validity of the execution of the will. The court, therefore, did not deprive the petitioner of any right which she is entitled to under the law or rules, nor did it abuse its discretion in refusing the submission of evidence as to filiation in the hearing for the probate. Considerations of convenience and expediency, therefore, support the ruling of the court in refusing to admit evidence of petitioner's filiation and postponing the same at a later stage in the distribution proceedings. Torres v. Javier. Section 642 of the Code of Civil Procedure requires that letters of administration should be granted, first, to the surviving husband or wife; second, to other relatives in the order named; third, in case the surviving wife or next of kin or person selected by them be unsuitable, the administration may be granted to some other person, such as one of the principal creditors; and fourth, if there is no such creditor competent and willing to serve, the administration may go to such person as the court may appoint. Borromeo-Herrera v. Borromeo. The prevailing jurisprudence on waiver of hereditary rights is that “the properties included in an existing inheritance cannot be considered as belonging to third persons with respect to the heirs, who by fiction of law continue the personality of the former. Nor do such properties have the character of future property, because the heirs acquire a right to succession from the moment of the death of the deceased, by principle established in article 657 and applied by article 661 of the Civil Code. According to which the heirs succeed the deceased by the mere fact of death. More or less, time may elapse from the moment of the death of the deceased until the heirs enter into possession of the hereditary property, but the acceptance in any event retroacts to the moment of the death, in accordance with article 989 of the Civil Code. The right is vested, although conditioned upon the adjudication of the corresponding hereditary portion.” → The heirs, therefore, could waive their hereditary rights in 1967 even if the order to partition the estate was issued only in 1969. Morales v. CFI. A probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that the said court could do as regards said

3

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. Heirs of Oscar Reyes v. Reyes. Probate court ruled that Arayat property be included in the inventory, SUBJECT to the outcome in the regular courts of whoever really owns it. SC says probate court was correct in not ruling on the title of the property, since probate court is with limited jurisdiction. Exception to the general rule does not apply in this case. Cunanan v. Amparo. Court has jurisdiction to order the delivery of the possession of the lots to the estate. This power is a mere consequence of the power to approve Soriano's claim; a power which the court undoubtedly had. Valera v. Inserto. As regards the first issue, settled is the rule that a Court of First Instance (now Regional Trial Court), acting as a Probate Court, exercises but limited jurisdiction, and thus has no power to take cognizance of and determine the issue of title to property claimed by a third person adversely to the decedent, unless the claimant and all the Other parties having legal interest in the property consent, expressly or impliedly, to the submission of the question to the Probate Court for adjudgment, or the interests of third persons are not thereby prejudiced. The reason for the exception being that the question of whether or not a particular matter should be resolved by the Court in the exercise of its general jurisdiction or of its limited jurisdiction as a special court is in reality not a jurisdictional but in essence of procedural one, involving a mode of practice which may be waived. The facts obtaining in this case, however, do not call for the application of the exception to the rule. It was at all times clear to the Court as well as to the parties that if cognizance was being taken of the question of title over the fishpond, it was not for the purpose of settling the issue definitely and permanently, and writing "finis" thereto, the question being explicitly left for determination "in an ordinary civil action," but merely to determine whether it should or should not be included in the inventory. This function of resolving whether or not property should be included in the estate inventory is, to be sure, one clearly within the Probate Court's competence, although the Court's determination is only provisional in character, not conclusive, and is subject to the final decision in a separate action that may be instituted by the parties. Dinglasan v. Ang Chia. . SC held that the TC's taking cognizance of the Civil Case is not assuming jurisdiction but merely a recognition and makes of record its existence considering 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 Ortañez-Enderes v. CA. It is admitted that the special proceedings are still pending before the court and the estate had not been partitioned and distributed. Notwithstanding the proceedings being conducted by the intestate court, the petitioners' rights or interests over the estate or over the assailed shareholdings in the name of respondents are still future and unsettled rights which cannot be protected by the writ of injunction. The jurisdiction of the regional trial court as a probate or intestate court relates only to matters having to do with the settlement of the estate and probate of will of deceased persons but does not extend to the determination of questions of ownership that arise during the proceedings. The court in charge of the intestate proceedings cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties.

D. Presumption of death, Sec. 3-4 CC, 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.

CC, 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents.

Rule 74 – Summary Settlement of Estates 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. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed 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, 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 next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. 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 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 (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 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. Sec. 3. Bond to be filed by distributees. - The court, before allowing a partition in accordance with the provisions of the preceding section, may 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. 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 any transfers of real estate that may have been made. Sec. 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.

A. Extra-judicial settlement by agreement between heirs, Secs. 1, 4, 5. 1. Substantive requirements 2. Procedural requirements

4

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

See also CC, 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance. FC, 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years. Emancipation also takes place: (1) By the marriage of the minor; or (2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the

minor at least eighteen years of age. Such emancipation shall be irrevocable. FC, 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life.

3. Two-year lien 4. Annulment 5. Cases

Monserrat v. Ibañez. Where there are no debts, the heirs are NOT bound to submit the property to a judicial administration which is always long and costly or to apply for an appointment of an administration by the court. These proceedings are superfluous and unnecessary Vda. de Rodriguez v. Tan. The Court held that that Rule 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 of partition. Pereira v. CA. 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. Guico v. Bautista. The action for partition was indeed premature. Heirs of a deceased may only be allowed to partition the estate without going through the special proceeding for settlement of estate and the appointment of administrator "if the decedent left no debts and the heirs and legatees are all of age or the minors are represented by their judicial guardians" (Sec. 1, Rule 74). The reason is that were the deceased dies without pending obligations, there is no necessity for the appointment of an administrator to administer the estate for them and to deprive the real owners of their possession to which they are immediately entitled Rebong v. Ibañez. Since the registered or annotated contingent interest of the creditors or other heirs of REBONG's predecessors in interest, established by section 4 of Rule 74 has not yet terminated or ceased, for the period of 2 years from July 9, 1947, have not yet elapsed, Judge IBAÑEZ had no jurisdiction or power to order the cancellation of said lien or annotation as prayed by the petitioner. Neither section 4, Rule 74, of the Rules of Court, nor section 112 of Act No. 496 authorizes interest of substitution of a bond for a lien or registered interest of any description, whether vested, expedient, inchoate or contingent, which have not yet terminated or ceased. McMicking v. Sy Conbieng. 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. Gerona v. de Guzman. The Court held that although, as a general rule, an action for partition among co-heirs does not prescribe, this is true only as long as the defendants do not hold the property in question under an adverse title. The statute of limitations operates as in other cases, from the moment such adverse title is asserted by the possessor of the property Pedrosa v. CA. Section 4, Rule 74 provides for a two year prescriptive period (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 119 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. Petitioner, as the records confirm, did not participate in the extrajudicial partition. Patently then, the two-year prescriptive period is not applicable in her case. The applicable prescriptive period here is four (4) years as provided in Gerona vs. De Guzman-“[The action to annul] a deed of "extrajudicial settlement" upon the ground of fraud...may be filed within four years from the discovery of the fraud. Section 1 of Rule 74 of the Rules of Court is the applicable rule on publication of extrajudicial settlement. It states: the fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof . The provision of Section 4, Rule 74 will also not apply when the deed of extrajudicial partition is sought to be annulled on the ground of fraud. A deed of extrajudicial partition executed without including some of the heirs, who had no knowledge of and consent to the same, is fraudulent and vicious. Pada-Kilario v. CA. The extrajudicial partition is valid, albeit executed in an unregistered private document. No law requires partition among heirs to be in writing and be registered in order to be valid. The requirement in Sec. 1, Rule 74 of the Revised Rules of Court that a partition be put in a public document and registered, has for its purpose the protection of creditors and the heirs themselves against tardy claims. The object of registration is to serve as constructive notice to others. Hence, the intrinsic validity of partition itself, even if not executed with the prescribed formalities, is not undermined when no creditors are involved. Tan v. Benolirao. 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), 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 2 year period. Clearly, 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.

B. Summary settlement of Estate, Secs. 2-5. Sampilo v. CA. Court held that the 2-year prescriptive period is applicable only with regard to persons who took part in the prior settlement and distribution of the estate. 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 due process of law.

Rule 75 – Production, Allowance of Will Necessary Sec. 1. Allowances 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.\ 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 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.

A. Meaning of Probate 1. Due execution and extrinsic validity

See also, CC, 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. CC, 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.

5

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

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 a death shall govern.

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. Sps. Pastor v. CA. When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the statutory usufructuary right of his wife until her death. In re Estate of Johnson. Daughter seeks to annul the decree of probate and put the estate into intestate administration, thus preparing the way for the establishment of the claim of the petitioner as the sole legitimate heir of her father. Court said this can’t be done because she didn’t file within 6 months an application from relief of judgment. Also, the probate of the will does not affect the intrinsic validity of its provisions, the decree of probate being conclusive only as regards the due execution of the will. If, therefore, upon the distribution of this estate, it should appear that any legacy given by the will or other disposition made therein is contrary to the law applicable in such case, the will must necessarily yield upon that point and the law must prevail. Nevertheless, it should not be forgotten that the intrinsic validity of the provisions of this will must be determined by the law of Illinois and not, as the appellant apparently assumes, by the general provisions here applicable in such matters Manahan v. Manahan. Once a will has been authenticated and admitted to probate, questions relative to the validity thereof can no more be raised on appeal. The decree of probate is conclusive with respect to the due execution thereof and it cannot impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceedings Balanay v. Martinez. In view of certain unusual provisions of the will and because of the motion to withdraw the petition for probate, the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. The probate court erred in declaring that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order, it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. Maninang v. CA. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, 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. BUT in CASE AT BAR, we gather from the assailed Order of the trial Court that its conclusion was that respondent Bernardo has been preterited We are of opinion, however, that from the face of the Will, that conclusion is not indubitable

2. Nature of proceedings Fernandez v. Dimagiba. It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. Betts v. CA. Probate proceedings involve public interest, and the application therein of estoppel, when it will block the ascertainment of the truth as to the circumstances surrounding the execution of a testament, would seem inimical to public policy. Over and above the interest of private parties is that of the state to see that testamentary dispositions be carried out if, and only if, executed conformably to law. || One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person

B. Responsible Person, Secs. 2-5 C. Discovery of will during intestate proceedings

Cuenco v. CA, supra. Casiano v. Maloto. The order in Special Proceeding No. 1736 is NOT A BAR to the present petition for the probate of the alleged will of Adriana. CFI and SC said before that it is more appropriate for petitioners to initiate a separate proceeding for the probate of the alleged will.

Rule 76 – Allowance or Disallowance of Will 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 the court for the allowance of his will. Sec. 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.

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. 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 be 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.

If the testator asks for the allowance of his own will, notice shall be sent only to his compulsory heirs. Sec. 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. If 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 testator. In the absence of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to. Sec. 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 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

6

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

(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. Sec. 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. Sec. 8. Proof when witnesses dead or insane or do not reside in the Philippines. - If it 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 admit proof of the handwriting of the testator and of the subscribing witnesses, or of any of them. Sec. 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. Sec. 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. Sec. 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 satisfactory 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 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 witness, and if the court deem it necessary, expert testimony may be resorted to. Sec. 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 in filed, the fact that he 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 may, in his turn, present such additional proof as may be necessary to rebut the evidence for the contestant. Sec. 13. Certificate of allowance attached to proved 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.

A. Who, and when to file Guevara v. Guevara. Succession Doctrine: Probate of a will is a proceeding in rem. It cannot be dispensed with and substituted by another proceeding, judicial or extrajudicial, without offending public policy. It is mandatory as no will shall pass either real or personal property unless proved and allowed in accordance with the Rules. It is imprescriptible, because it is required by public policy and the state could not have intended to defeat the same by applying thereto the statute of limitation of actions || SpecPro Doctrine: It is not without purpose that Rule of Court 77 prescribes that any ‘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’. Duran v. Duran. The Court said that the assignment by one heir of his share in the estate to a co- heir does not need court approval to be effective as between the parties. The assignment is deemed valid and effective against him, so that he is left without that "interest" in the estate required to petite for settlement proceedings.

B. Contents of petition, Sec. 2. Salazar v. CFI. Under the foregoing provisions, a Court of First Instance acquires jurisdiction to probate a will when it is shown by evidence before it: (1) That a person has died leaving a will; (2) in the case of a resident of this country, that he died in the province where the court exercises territorial jurisdiction; (3) in the case of a nonresident, that he has left a estate in the province where the court is situated, and (4) that the testament or last will of the deceased has been delivered to the court and is in the possession thereof. 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 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.

C. Nature of Proceedings, Sec. 3-4. In re estate of Johnson, supra. In re estate of Suntay. 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 and such will shall have the same effect as if originally proved and allowed in such court. HOWEVER, the fact that the foreign court is a probate court must be proved. Also, the law of the foreign country on procedure in the probate or allowance of wills must be proved, as well as the legal requirements for the execution of a valid will therein all of these, the petitioners failed to prove. PROBATE PROCEEDINGS ARE PROCEEDINGS IN REM AND FOR THE VALIDITY OF SUCH PROCEEDINGS, PERSONAL NOTICE OR BY PUBLICATION OR BOTH TO ALL INTERESTED PARTIES MUST BE MADE Abut v. Abut. The jurisdiction of the court became vested upon the filing of the original petition and upon compliance with Sections 3 and 4 of Rule 76. Jurisdiction of the court once acquired continues until the termination of the case, and remains unaffected by subsequent events. Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not jurisdictional requisite. R-Infante de Aranz v. Galing. W/N CA erred in holding that personal notice of probate proceedings to the known legatees and devisees is not a jurisdictional requirement in the probate of a will. YES. Contrary to the holding of the Court of Appeals that the requirement of notice on individual heirs, legatees and devisees is merely a matter of procedural convenience to better satisfy in some instances the requirements of due process, petitioners allege that under Sec. 4 of Rule 76 of the Rules of Court, said requirement of the law is mandatory and its omission constitutes a reversible error for being constitutive of grave abuse of discretion. Basa v. Mercado. Motion to reopen the administration proceedings because there was an alleged failure to comply with the requirements as to the publication of the notice of hearing. They contended that the hearing took place only twenty-one days after the date of first publication instead of three full weeks. The Court held that the first publication of the notice need not be made 21 days before the day appointed for the hearing. Moreover, they questioned whether Ing Katipunan, the newspaper where the notice was published was a newspaper of general circulation as contemplated by the law. The Court held that Ing Katipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made inIng Katipunan precisely because it was a "newspaper of general circulation in the Province of Pampanga."

D. Proof, Secs. 5-12. E. Kinds of Will

7

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

CC, 811. In the probate 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 testator. If the will is contested, at least three of such witnesses shall be required.

In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. Cayetano v. Leonides. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issues. In this case, it was sufficiently established that Adoracion was an American citizen and the law which governs her will is the law of Pennsylvania, USA, which is the national law of the decedent. It is a settled rule that as regards the intrinsic validity of the provisions of the will, the national law of the decedent must apply. || As to the issue of jurisdiction --The settlement of estate of Adoracion Campos was correctly filed with the CFI of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, USA and not a usual resident of Cavite. Fernandez v. Tantoco. In weighing the testimony of the attesting witnesses to a will, the statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than the testimony of a person casually called to participate in the act, supposing of course that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney, being conversant with the requisites of the proper execution of the instrument, is more likely to become fixed on details; and he is more likely than other persons to retain those incidents in his memory. ALSO, in case of opposition to the probate of the will, the proponent is legally bound to introduce all of the subscribing witnesses, if available. Attesting witnesses to a will, therefore, are forced witnesses so far as the proponent is concerned, BUT the proponent is not bound by their testimony to the same extent that a litigant is bound by the testimony of witnesses introduced in ordinary course. Thus, the proponent of a will may still avail himself of other proof to establish the instrument, even contrary to the testimony of some of the subscribing witnesses, or all of them. Vda. de Ramos v. CA. The will and codicil were executed in accordance with the formalities required by law. The documents were prepared by a lawyer, Atty. Alvero. The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the 3 attesting witnesses. The attestation claim far from being deficient, were properly signed by the attesting witnesses. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution. If any or all of the submitting witness testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful ability, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witness and from all the evidence presented that the will was executed and attested in the manner by law. Azaola v. Singson. Article 811 is merely permissive and not mandatory. Since the authenticity of the will was not contested, petitioner was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, Article 811 cannot be interpreted to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. This is the reason why the 2nd paragraph of Article 811 allows the court to resort to expert evidence. The law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

F. Lost will Gan v. Yap. The Court held 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.8 The loss of the holographic will entails the loss of the only medium of proof. Even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11. Rodelas v. Aranza. Whether or not a holographic will which was lost or cannot be found can be proved by photostatic copy. If the holographic will has been lost, and no other copy is available, the will cannot probated because the best and only evidence is the hand writing of thetestator. But if a photostatic copy of a holographic will may be allowed because comparison can be made with the standard writings of testator.

G. Grounds for Disallowance, Secs. 9, 10, 13 CC, 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature

thereto Rule 77 – Allowance of Will Outside of the Philippines

Sec. 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. Sec. 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. Sec. 3. When will allowed, and effect thereof. - If it appears at the hearing that the will should be allowed in the Philippines, the court 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 will shall have the same effect as if originally proved and allowed in such court. Sec. 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.

Vda. de Perez v. Tolete. Per Art. 816 of the Civil Code, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. Corollarily, as borne by jurisprudence, 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. Suntay v. Suntay. Due execution and validity of the lost will was not established Granting that there was a will duly executed placed in the envelope and that it was in existence at the time of, and not revoked before, his death, still the testimony of Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The will and the alleged probate

8

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

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. 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 the will cannot be allowed, filed and recorded by a competent court of this country Ramirez de la Cavada v. Ramirez. With respect to the will now in question a prima facie case for the establishment of the document was made out when it appeared that the instrument itself was properly drawn and attested and that all of the signatures thereto are authentic. These facts raised a presumption of regularity; and upon this facts alone the will should be admitted to probate in the absence of proof showing that some fatal irregularities occurred. And such irregularity must be proved by a preponderance of the evidence before probate can be denied. Ancheta v. Guersey-Dalaygon. Respondent’s knowledge of the terms of Audrey’s will is immaterial in this case since it is not the fraud complained of. Rather, it is petitioner’s failure to introduce in evidence the pertinent law of the State of Maryland that is the fraudulent act, or in this case, omission, alleged to have been committed against respondent, and therefore, the four-year period should be counted from the time of respondent’s discovery thereof. || 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

Rule 78 – Letters Testamentary and Of Administration Sec. 1. Who are incompetent to serve as executors or administrators. - No person is competent to serve as executor or administrator who:

(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. Sec. 2. Executor of executor not to administer estate. - The executor of an executor shall not, as such, administer the estate of the first testator. Sec. 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. Sec. 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. Sec. 5. Where some co-executors 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. 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. A. Qualification, Secs. 1-2.

Lim v. Diaz-Millares. In this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind or hostility to those immediately interested in the estate. The determination of a person's suitability for the office of judicial administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment and said judgment is not to be interfered with on appeal unless the said court is clearly in error. Medina v. CA. An administrator is deemed unsuitable and should be removed where his personal interests conflict with his official duties, by virtue of the equally established principle that an administrator is a quasi trustee. He is disqualified from acquiring properties of the estate. He should be indifferent between the estate and claimants of the property except to preserve it for due administration, and who should be removed when his interest conflicts with such right and duly. Maloles II v. Phillips. Maloles, 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. 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. Rep. v. Marcos. Since Pres. Marcos named the respondents as the executors of the will, the same must be upheld. Also, the Marcoses have been acquitted of the crimes against them, and even if Bongbong should be convicted of the pending appeal of a Tax case against him, such crime does not involve moral turpitude.

B. Procedure, Secs, 2, 4, 5. In re Estate of Margarita David. The Court held that the residuary funds in the hands of the heiresses of this estate should be applied to the payment of the Sideco claim, for it is more advantageous to use that fund to pay the claim in question than selling the real properties of the estate for that purpose. Baluyut v. Paño. 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 || Certiorari lies when a grave abuse of discretion was patently committed by the lower court or if the petitioner's contention is clearly tenable or when the broader interests of justice or public policy justify the nullification of the questioned order

C. Order of Preference, Sec. 6. Capistrano v. Nadurata. The selection of an administrator of the estate of a deceased lies within the discretion of the court (Sec. 642, Subsec. 1, Code of Civil Procedure). The record does not contain anything tending to show an abuse of discretion on the part of the lower court. On the contrary, the act of the lower court is not only indicative of sound discretion, but is right and just; for the evidence shows that Leon Nadurata is not surviving spouse of Petra, who died widow and not twice widow, and that the opponents Pedro and Juan de los Santos are not, as they pretend to be, brother of the aforesaid deceased. Arevalo v. Butamante. Removal from office always involves correction or punishment, but the cancellation of the order of appointment is made by reason of disability. Interest adverse to the intestate or to others who are interested in them is reason enough for the disability of the appointed judicial administrator. || The court has discretion to name the judicial administrator whom he considered more qualified to defend and ensure the interests of the intestate Gabriel v. CA. Under the circumstances obtaining herein, we deem it just, equitable and advisable that there be a co-administration of the estate of the deceased by petitioner Felicitas Jose-Gabriel and private respondent Roberto Dindo Gabriel. As earlier stated, the purpose of having co-administrators is to have the benefit of their judgment and perhaps at all times to have different interests represented, especially considering that in this proceeding they will respectively represent the legitimate and illegitimate groups of heirs to the estate. Thereby, it may reasonably be expected that all interested persons will be satisfied, with the representatives working in harmony under the direction and supervision of the probate court. Silverio v. CA. The Court held that the appointment of Edgardo S. Silverio as administrator is proper. 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. Unsuitableness for appointment as administrator may consist in adverse interest of some kind or hostility to those immediately interested in the estate.

9

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

In re Intestate Estate of Christina Aguinaldo-Suntay. Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an estate. However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each case.Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial court. In the main, the attendant facts and circumstances of this case necessitate, at the least, a joint administration by both respondent and Emilio III of their grandmother’s, Cristina’s, estate. In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here

Rule 79 – Opposing Issuance of Letters Testamentary; Petition and Contest for Letters of Administration Sec. 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 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. 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, 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 on the petition shall render void the issuance of letters of administration. Sec. 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 believed to have an interest in the estate, in the manner provided in Sections 3 and 4 of Rule 76. Sec. 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 persons named in the opposition. Sec. 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. Sec. 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.

A. Contents of Petition, Sec. 2. B. Interested party, Secs 1-2.

Espinosa v. Barrios. The remedy for SALVACION is NOT reopening of the special proceedings since these have already been closed and such remedies have already been clearly lost. Her proper recourse should have been the ordinary appeal and to claim recovery of possession of Lot No. 2850 there. As regards the administratrix FLORA, she is a stranger who does not have a material interest in the properties of the estate. She has, therefore, NO RIGHT to intervene or appeal against any order of the CFI dictated to her, even though the same may be seemingly harmful (to the estate). Trillana v. Crisostomo. Besides, they merely allege in their petition for relief that they are "nephews and nieces and therefore legal heirs of the deceased Damasa Crisostomo," without specifying the degree of relationship they had the latter. They do not pretend that if the will of Oct. 19be disallowed, they will inherit the estate left by the testatrix. They contend that said will should be probated jointly or together with the will of Aug. 16, and the latter be allowed instead of the former. Duran v. Duran, supra. In re Estate of Irene Santos. Adela signed something to the effect that she won’t take part in the SpecPro of her mom Irene’s estate. Then, she alleged that she was defrauded by the lawyer. Court said We see no prejudice to be suffered by the administrator and Rizalina, if they are required to furnish copies of their pleadings to appellee. On the contrary, doing so, will give appellee her day in court and provide protection to the administrator himself. Tayag v. Tayag-Gallor. The Court held that 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 opposition to her petition and motion for hearing on affirmative defenses. 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.

C. Procedure, Secs 3-6 Avelino v. CA. Daughter v other siblings. Daughter wants to be administrator but other siblings want action to be converted to judicial partition . RTC , CA, and SC said conversion is proper. 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.

Rule 80 – Special Administrator Sec. 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. Sec. 2. Powers and duties of special administrator. - Such special administrator shall take possession and charge of goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executor 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. Sec. 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.

A. Necessity for, and qualification of, a special administrator, Sec. 1. See R86, Sec. 8. Vda. de Ramos v. Pecson. The law does not say who shall be appointed as special administrator and the qualifications the appointee must have. Thus, the judge has discretion in the selection of the person to be appointed, and this discretion must be sound, not whimsical or contrary to reason, justice or equity. In the exercise of this discretion, the standard of BENEFICIAL INTEREST has been used. 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. Matias v. Gonzales. In her motion, Basilia prayed for the dismissal of Rodriguez, and the appointment of Ramon Plata, as special administrator of said estate. Aurea had, therefore, no notice that her main opponent, Basilia, and the latter's principal witness, Victorina, would be considered for the management of said. As a consequence, Aurea had no opportunity to object to the appointment of Basilia as special administratrix, and of Victorina, as her assistant and adviser, and the order of Feb. 27, 1956, to this effect, denied due process to Aurea. Inasmuch as the lower court had deemed it best to appoint more than one special administrator, justice and equity demands that both factions be represented in the management of the estate of the deceased.

B. Powers and duties, Sec. 2-4

10

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

De Gala v. Gonzales. Serapia Gonzales was ousted as special administratrix of the estate of Severina; she was replaced by Siniforoso, because the properties are with him and his appointment would simplify the proceedings. Court held that such order by the CFI was okay, coz Section 653 only applies to executors and regular administrators. Appointment and removal of special administrators are purely discretionary on the part of the Court. Liwanag v. CA. The Rules of Court do not expressly prohibit making the special administratrix a defendant in a suit against the estate. Section 7 of Rule 86 of the New Rules of Court provides that a creditor holding a claim against the deceased, secured by a mortgage or other collateral security, may pursue any of these remedies: (1) abandon his security and prosecute his claim and share in the general distribution of the assets of the estate; (2) foreclose his mortgage or realize upon his security by an action in court, making the executor or administrator a party defendant, and if there is a deficiency after the sale of the mortgaged property, he may prove the same in the testate or intestate proceedings; and (3) rely exclusively upon his mortgage and foreclose it any time within the ordinary period of limitations, and if he relies exclusively upon the mortgage, he shall not...share in the distribution of the assets. Anderson v. Perkins. It is in line with this general power of the special administrator to preserve not only the property of the estate but also its value, that section 2, Rule 81, also empowers such administrator to sell "other property as the court ordered sold;" .BUT until the issue of the ownership of the properties sought to be sold is heard and decided, and the conjugal partnership liquidated; or, at least, an agreement be reached with a appellant as to which properties of the conjugal partnership she would not mind being sold to preserve their value the proposed sale is clearly premature. Silverio v. CA, supra. Heirs of Castillo v. Lacuata-Gabriel. The appointment of a SPECIAL administrator lies entirely in the discretion of the court. In the selection of a special administrator, which appointment 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. 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 or agent of the parties suggesting his 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. 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.

Rule 81 – Bonds of Executors and Administrators

Sec. 1. Bond to be given before issuance of letters; Amount; Conditions. - Before an executor or administrator enters upon the execution of his trust, and letters testamentary or of 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) year, and at any other time when required by the court; (d) To perform all orders of the court by him to be performed.

Sec. 2. Bond of executor where directed in will. When further bond required. - If the testator in his will directs that the executor 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 a change in his circumstances, or for other sufficient cause, with the conditions named in the last preceding section. Sec. 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. Sec. 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.

A. Kinds, Secs 1-4 B. Conditions, Sec. 1,2 and 4

Cosme de Mendoza v. Pacheco. The appointment of a SPECIAL administrator lies entirely in the discretion of the court. In the selection of a special administrator, which appointment 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. 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 or agent of the parties suggesting his 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. 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. Ocampo v. Ocampo. A special administrator is an officer of the court who is subject to its supervision and control, expected to work for the best interest of the entire estate, with a view to its smooth administration and speedy settlement. When appointed, he or she is not regarded as an agent or representative of the parties suggesting the appointment. The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass to the hands of a person fully authorized to administer it for the benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of the Rules of Court. || While the RTC considered that respondents were the nearest of kin to their deceased parents in their appointment as joint special administrators, this is not a mandatory requirement for the appointment. It has long been settled that the selection or removal of special administrators is not governed by the rules regarding the selection or removal of regular administrators. The probate court may appoint or remove special administrators based on grounds other than those enumerated in the Rules at its discretion, such that the need to first pass upon and resolve the issues of fitness or unfitness and the application of the order of preference under Section 6 of Rule 78, as would be proper in the case of a regular administrator, do not obtain. As long as the discretion is exercised without grave abuse, and is based on reason, equity, justice, and legal principles, interference by higher courts is unwarranted. The appointment or removal of special administrators, being discretionary, is thus interlocutory and may be assailed through a petition for certiorari under Rule 65 of the Rules of Court. || Pursuant to Section 1 of Rule 81, the bond secures the performance of the duties and obligations of an administrator namely: (1) to administer the estate and pay the debts; (2) to perform all judicial orders; (3) to account within one (1) year and at any other time when required by the probate court; and (4) to make an inventory within three (3) months. More specifically, per Section 4 of the same Rule, the bond is conditioned on the faithful execution of the administration of the decedent’s estate requiring the special administrator to (1) make and return a true inventory of the goods, chattels, rights, credits, and estate of the deceased which come to his possession or knowledge; (2) truly account for such as received by him when required by the court; and (3) deliver the same to the person appointed as executor or regular administrator, or to such other person as may be authorized to receive them. Verily, the administration bond is for the benefit of the creditors and the heirs, as it compels the administrator, whether regular or special, to perform the trust reposed in, and discharge the obligations incumbent upon, him. Its object and purpose is to safeguard the properties of the decedent, and, therefore, the bond should not be considered as part of the necessary expenses chargeable against the estate, not being included among the acts constituting the care, management, and settlement of the estate. Moreover, the ability to post the bond is in the nature of a qualification for the office of administration.

11

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

Rule 82 – Revocation of Administration, Death, Resignation, Removal of Executors/Administrators Sec. 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 within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided. Sec. 2. Court may remove or accept resignation of executor or administrator; Proceedings 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 judgment of the court, or a duty expressly provided by these rules, or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove him, or, in its discretion, may permit him to resign. 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. Sec. 3. Acts before revocation, resignation, or removal to be valid. - The lawful acts 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. Sec. 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 execution 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.

A. Reasons, Sec. 1-2 B. Effects, Sec 3-4 C. Case: Quasha v. LCN Construction. 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. 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.

Rule 83 – Inventory and Appraisal; Provisions for Support of Family Sec. 1. Inventory and appraisal to be returned within three months. - When three (3) months after his appointment every executor or administrator shall return to the court a true inventory and appraisal of all the 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. Sec. 2. Certain articles 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 subsistence 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. 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.

A. Period, Sec. 1. Sebial v. Sebial. The three-month period prescribed in section 1, Rule 83 (formerly Rule 84) of the Rules of Court is not mandatory. After the filing of a petition for the issuance of letters of administration and the publication of the notice of hearing, the proper Court of First Instance acquires jurisdiction over a decedent's estate and retains that jurisdiction until the proceeding is closed. The fact that an inventory was filed after the three-month period would not deprive the probate court of jurisdiction to approve it. However, an administrator's unexplained delay in filing the inventory may be a ground for his removal (Sec. 2, Rule 82, Rules of Court). || The probate court should receive evidence on the discordant contentions of the parties as to the assets of decedent's estate, the valuations thereof and the rights of the transferees of some of the assets. The issue of prescription should also be considered. After receiving evidence, the probate court should decide once and for all whether there are still any assets of the estate that can be partitioned and, if so, to effect the requisite partition and distribution. If the estate has no more assets and if a partition had really been made or the action to recover the lands transferred to third person had prescribed, it should dismiss the intestate proceeding.

B. Contents, Sec. 2-3. FC, 102. Upon dissolution of the absolute community regime, the following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between

husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51. (6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated

shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the best interests of said children.

FC, 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage FC, 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.

12

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties, in accordance with the provisions of paragraph (2) of Article 121.

(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them. (6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family,

belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any. (7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband

and wife, unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Article 51. (9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the

parties, be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.

FC, 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. FC, 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each. FC, 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter. FC, 133. 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. CC, 290. Support is everything that is indispensable for sustenance, dwelling, clothing and medical attendance, according to the 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. CC, 291. The following are obliged to support each other to the whole extent set forth in the preceding article:

(1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and acknowledged natural children and the legitimate or illegitimate descendants of the latter; (4) Parents and natural children by legal fiction and the legitimate and illegitimate descendants of the latter; (5) Parents and illegitimate children who are not natural. Brothers and sisters owe their legitimate and natural brothers and sisters, although they are only of the half-blood, the necessaries for

life, when by a physical or mental defect, or any other cause not imputable to the recipients, the latter cannot secure their subsistence. This assistance includes, in a proper case, expenses necessary for elementary education and for professional or vocational training. CC, 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children, shall be supported from the conjugal partnership property. After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order. CC, 293. In an action for legal separation or annulment of marriage, attorney's fees and expenses for litigation shall be charged to the conjugal partnership property, unless the action fails. CC, 294. The claim for support, when proper and two or more persons are obliged to give it, shall be made in the following order:

(1) From the spouse; (2) From the descendants of the nearest degree; (3) From the ascendants, also of the nearest degree; (4) From the brothers and sisters. Among descendants and ascendants the order in which they are called to the intestate succession of the person who has a right to claim

support shall be observed. CC, 295. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each.

However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them.

When two or more recipients at the same time claim support from one and the same person legally obliged to give it, and the latter should not have sufficient means to satisfy all, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the latter shall be preferred. CC, 296. The amount of support, in the cases referred to in the five numbers of article 291, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. CC, 297. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the needs of the recipient and the resources of the person obliged to furnish the same. CC, 298. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date it is extrajudicially demanded.

Payment shall be made monthly in advance, and when the recipient dies, his heirs shall not be obliged to return what he has received in advance. CC, 299. The person obliged to give support may, at his option, fulfill his obligation either by paying the allowance fixed, or by receiving and maintaining in his house the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. CC, 300. The obligation to furnish support ceases upon the death of the obligor, even if he may be bound to give it in compliance with a final judgment. CC, 301. The right to receive support cannot be renounced; nor can it be transmitted to a third person. Neither can it be compensated with what the recipient owes the obligor.

However, support in arrears may be compensated and renounced, and the right to demand the same may be transmitted by onerous or gratuitous title. CC, 302. Neither the right to receive legal support nor any money or property obtained as such support or any pension or gratuity from the government is subject to attachment or execution. CC, 303. The obligation to give support shall also cease:

13

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

(1) Upon the death of the recipient; (2) When the resources of the obligor have been reduced to the point where he cannot give the support without neglecting his own

needs and those of his family; (3) When the recipient may engage in a trade, profession, or industry, or has obtained work, or has improved his fortune in such a way

that he no longer needs the allowance for his subsistence; (4) When the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance; (5) When the recipient is a descendant, brother or sister of the obligor and the need for support is caused by his or her bad conduct or

by the lack of application to work, so long as this cause subsists. CC, 304. The foregoing provisions shall be applicable to other cases where, in virtue of this Code or of any other law, by will, or by stipulation there is a right to receive support, save what is stipulated, ordered by the testator or provided by law for the special case. Vda. de Paz v. vda. de Madrigal. There is no reason why the reconveyance case cannot be maintained simply because the plaintiffs appeared as claimants/oppositors in the testate proceedings. A court which takes cognizance of testate or intestate proceedings has the power and jurisdiction to determine whether or not the properties included therein or excluded therefrom belong prima facie to the deceased, but such determination is NOT FINAL OR ULTIMATE in nature, and without prejudice to the right of interested parties, in a proper action, to raise the question bearing on the ownership or existence of the right Heirs of Sy Bang v. Sy. The court hearing the petition for guardianship had limited jurisdiction. It had no jurisdiction to enforce payment of the widow’s allowance ordered by this Court. The claim for widow’s allowance was made before the SC in a case that did not arise from the guardianship proceedings. The widow’s allowance is chargeable to Sy Bang’s estate. It must be stressed that the issue of whether the properties in the names of Rosalino, Bartolome, Rolando, and Enrique form part of Sy Bang’s estate remains unsettled since this Petition questioning the trial court’s 3rd Partial Decision has been pending. On the other hand, there has been a categorical pronouncement that petitioners are holding properties belonging to Sy Bang’s estate. That the full extent of Sy Bang’s estate has not yet been determined is no excuse from complying with this Court’s order. Properties of the estate have been identified – i.e., those in the names of petitioners – thus, these properties should be made to answer for the widow’s allowance of Rosita.

Rule 84 – General Powers and Duties of Executors and Administrators

Sec. 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 may 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 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 punish any partner failing to do so for contempt. Sec. 2. Executor or administrator to keep buildings in repair. - An executor or administrator shall maintain in tenantable 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. Sec. 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.

Jocson de Hilado v. Nava. The contract here in question being a mere act of administration, could validly be entered into by the administratrix within her powers of administration, even without the court's previous authority. And the court had no power to annul or invalidate the contract in the intestate proceedings wherein it had no jurisdiction over the person of the lessee. A separate ordinary action is necessary to that effect. Estate of Ruiz v. CA. The right of an executor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can only be exercised “so long as it is necessary for the payment of the debts and expenses of administration,”. As executor, he is a mere trustee of his father’s estate. The funds of the estate in his hands are trust funds and he is held to the duties and responsibilities of a trustee of the highest order. He cannot unilaterally assign to himself and possess all his parents’ properties and the fruits thereof without first submitting an inventory and appraisal of all real and personal properties of the deceased, rendering a true account of his administration, the expenses of administration, the amount of the obligations and estate tax, all of which are subject to a determination by the court as to their veracity, propriety and justness Silverio v. CA. An interlocutory order, as opposed to a final order, was defined in Tan v. Republic: A final order is one that disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing else to be done but to enforce by execution what has been determined by the court, while an interlocutory order is one which does not dispose of the case completely but leaves something to be decided upon. Additionally, it is only after a judgment has been rendered in the case that the ground for the appeal of the interlocutory order may be included in the appeal of the judgment itself. The interlocutory order generally cannot be appealed separately from the judgment. It is only when such interlocutory order was rendered without or in excess of jurisdiction or with grave abuse of discretion that certiorari under Rule 65 may be resorted to.

Rule 85 – Accountability and Compensation of Executors and Administrators Sec. 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. Sec. 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 appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss, if the sale has been 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. Sec. 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. Sec. 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 allowed, the same may be ascertained by the court, whose determination in this respect shall be final. Sec. 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. Sec. 6. When allowed money paid as costs. - 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. 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

14

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

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 exceed 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 or 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 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. Sec. 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. Sec. 9. Examination 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 administrator of being examined on oath of any matter relating to an administration. Sec. 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 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. Sec. 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.

A. Improper Charges Moran Sison v. Teodoro. the expense incurred by an executor or administrator to produce a bond is NOT a proper charge against the estate. Section 680 of the Code of Civil Procedure (similar to section 7, Rule 86) does not authorize the executor or administrator to charge against the estate the money spent for the presentation, filing, and substitution of a bond. The position of an executor or administrator is one of trust and the ability to give a bond is in the nature of a qualification for the office. The execution and approval of the bond constitute a condition precedent to acceptance of the responsibilities of the trust. Therefore, it would be very far-fetched to construe that the giving of a bond is a necessary expense for the care, management, and settlement of the estate, for these are expenses incurred only AFTER the executor or administrator has met the requirements of the law and has entered upon the performance of his duties. De Borja v. de Borja. The administrator is guilty of acts of maladministration because of his highly irregular practices (pretended ignorance of the necessity of a book or ledger or at least a list of chronological and dated entries of money or produce the Intestate acquired and the amount of disbursements made for the same properties; he did not have even a list of the names of the lessees to the properties under his administration, nor even a list of those who owed back rentals) and specifically in mixing the funds of the estate under his administration with his personal funds instead of keeping a current account for the Intestate in his capacity as administrator. Despite these irregular practices for which he was held already liable and made in some instances to reimburse the Intestate for amounts that were not properly accounted for, his claim for compensation as administrator's fees shall be as they are hereby allowed Uy Tioco v. Imperial. The arguments submitted indicate a misconception of the character of the liability for the attorney's fees are claimed are supposed to have been rendered to the executor or administrator to assist him in the execution of his trust. The attorney can therefore not hold the estate directly liable for his fees; such fees are allowed to the executor or administrator and not to the attorney. The liability for the payment rests on the executor or administrator, but if the fees paid are beneficial to the estate and reasonable, he is entitled to the reimbursement from the estate. Such payment should be included in his accounts and the reimbursement therefore settled upon the notice prescribed in section 682 of the Code of Civil Procedure. Rodriguez v. Ynza. Rodriguez was named trustee by reason of his qualifications, not as a lawyer but as administrator. It appears that Rodriguez was involved in 8 cases, not in his private capacity, but as trustee or administrator of the estate of Julia Ynza, deceased and the properties constituting said estate were being claimed by appellant, to the exclusion of the estate of Julia Ynza. It is apparent therefore that as counsel for Rodriguez in said cases, Atty. Tirol had rendered services for the benefit of the estate of Julia Ynza, which obtained a favorable decision in every one of said cases.

B. Accounting Tumang v. Laguio. The duty of an executor or administrator to render an account is not a mere incident of an administration proceeding which can be waived or disregarded. It is a duty that has to be performed and duly acted upon by the court before the administration is finally ordered closed and terminated Punongbayan v. Punongbayan. DANILO’s resort to certiorari under Rule 65 to assail the intestate court’s order of denial of his motion for SOTERO to render accounting is proper since the same order is merely an interlocutory order. The said order did not fully dispose of the issue involving SOTERO’s accountability as an administrator. DANILO’s motion, premised on Section 8, Rule 85 and Sec. 7, Rule 87 of the Rules of Court, sought to determine SOTERO’s accountability as an administrator. But in so ruling, the intestate court denied the motion on the ground of PREMATURITY, without disposing or precluding future probing into SOTERO’s accountability as such administrator. Hence, the order was clear ly interlocutory. Under Rule 85, Sec. 8, the administrator is only liable to render accounting 1 year after receipt of letters of administrator. In the case at bar, SOTERO has only been administrator for one (1) day when DANILO sought to make him accountable under Rule 85, Sec. 8. HOWEVER, even if DANILO’s resort to certiorari was proper, the CA erred in granting the same. The reasons why certiorari should not be granted are set forth below. They are not SpecPro related so I’m not putting them here in the quickie anymore. Quasha v. LCN, supra.

Rule 86 – Claims Against Estate Sec. 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. Sec. 2. Time within which claims shall be filed. - In the notice provided in the preceding section, the court shall state the time for the filing of claims against the estate, which shall not be more than twelve (12) nor 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 time previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month. Sec. 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. Sec. 4. Filing 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. Sec. 5. Claims which must be filed under the notice. - If not filed, barred; exceptions. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, 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

15

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

balance against 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. Sec. 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 form the other debtor. In a joint obligation of the decedent, the claim shall be confined to the portion belonging to him. Sec. 7. Mortgage debt due from estate. - A creditor holding a claim against the deceased secured by mortgage or other collateral 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 of other security alone, and foreclose 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 the 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. Sec. 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 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. Sec. 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 lost 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 affidavit 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. Sec. 10. Answer of executor or administrator; Offsets. - Within fifteen (15) days after 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 substance of the matters which are relied upon to support 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 has 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. Sec. 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, legatee, 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. Sec. 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. Sec. 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. Sec. 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.

A. Notice and Period, Secs 1-4. Santos v. Manarang. In the present case the time previously limited was 6 months from July 23, 1907. This allowed Santos 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. Santos’ petition was not presented until July 14, 1909. It is commonly termed the statute of nonclaims, and its purpose is to settle the affairs of the estate with 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 claims against the estate in the case at bar were enforceable only when the prescribed legal procedure was followed. DISSENT: the record is entirely lacking in legal evidence to establish the publication which the law requires under that order. The claim was not one that must be submitted to a committee, being recognized as a legal and valid debt by the will and the testator having ordered his executor to pay it. Tan Sen Guan v. Go Siu San. The record shows that the application of the plaintiff was presented fourteen months after the expiration of the period fixed for the filing of claims. And while it was presented before the final settlement of the estate of Antonio Tampoco, yet, it having been proved that the committee had published in the newspaper La Nacion the notice required by law, there was no possible ground for granting said application. Even considering this application under section 113 of the Code of Civil Procedure, we believe that the lapse of fourteen months is an unsurmountable barrier opposing the granting of said application. Heirs of Pizarro Sr. v. Consolacion. Luis tan filed a verified petition for the issuance of letters of administration in favor of a certain Alfonso Atilano. Petitioners filed an opposition. Respondent court set the petition for hearing. Said order and the petition were duly published in the Mindanao Times. Parties entered into a compromise. After the judicial administrator had qualified and his inventory of the assets of the late Dominga Garcia was approved, respondent court issued an order requiring the filing of creditors' claim against the said estate within the period of six (6) months from the date of the first publication. The Court held that this order is null and void for violating Section 2, Rule 86 of the RoC. The range of the period specified in the rule is intended to give the probate court the discretion to fix the period for the filing of claims. The probate court is permitted by the rule to set the period provided it is not less than six (6) months nor more than twelve (12) months from the date of the first publication of the notice thereof. Such period once fixed by the court is mandatory. In this case the trial court set the period for the filing of the claims within six (6) months from the date of the first publication of the notice. It was obviously short of the minimum limit of six (6) months provided for by the law. Petitioner correctly observed that the trial court thereby shortened the period set by the law. Barredo v. CA. The probate court previously fixed the period for filing claims at six (6) months reckoned from the date of first publication, and the said notice to creditors was first published on 23 August 1945. The present claim was filed on 22 October 1947. There is no doubt, therefore, that the claim was filed outside of the period previously fixed. But a tardy claim may be allowed, at the discretion of the court, upon showing of cause for failure to present said claim on time. Villanueva v. PNB. While it is quite true that the Courts can extend the period within which to present claims against the estate, even after the period limited in the “Notice to Creditors” has elapsed, such extension should be granted ONLY under special circumstances. IN THIS CASE, no justifiable reason was given for the extension. AND in any case, there was no period to extend since the same had already elapsed! The records also reveal, contrary to PNB’s pretensions, that PNB had knowledge of the administration proceedings long before 1953. Thus, their failure to admit their claim on time is of their own making and shall not be countenanced. Having reached the above conclusions, it is no longer necessary to

16

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

determine the question as to whether or not the Moratorium Law had suspended the prescriptive period for filing of the claim under consideration. The claim must be barred

B. Nature of Claims, Secs 5-8 Aguas v. Llemos. Under Rule 87, section 5, the actions that are abated by death are: (1) claims for funeral expenses and those for the last sickness of the decedent; (2) judgments for money; and (3) "all claims for money against the decedent, arising from contract express or implied". None of these includes that of the plaintiffs; for it is not enough that the claim against the deceased party be for money, but it must arise from "contract express or implied". Upon the other hand, Rule 88, section 1, enumerates actions that survive against a decedent's executors or administrators, and they are: (1) actions to recover real and personal property from the estate; (2) actions to enforce a lien thereon; and (3) actions to recover damages for an injury to person or property. The present suit is one for damages under the last class, it having been held that "injury to property" is not limited to injuries to specific property, but extends to other wrongs by which personal estate is injured or diminished Vera v. Fernandez. The statute of non-claims in Sec. 5 of Rule 86 does NOT bar claim of the government for unpaid taxes, if it filed within the prescription period stated in the NIRC. Such stems from the principle that taxes are the lifeblood of the government Gotamco v. Chan Seng. The Court held that in the instant case there was not claim made, filed or presented by anyone. Legally speaking, the allowance of the claim would be like rendering a judgment without the filing of a complaint, or even the making or presentment of a claim. The evidence is conclusive that at the time the alleged claim was allowed, Tan Kim Hong was only twelve years of age, and that all of the other parties were minors. There is no claim or pretense that Tan Kim Hong had a guardian or that anyone had the legal authority to appear for and present his claim or to represent him, or that his claim was ever presented. There is no claim or pretense that any of the parties in interest had any knowledge of the fact that the claim was presented and allowed before they came to Manila from China in September, 1922. As a matter of fact, there is no evidence that the claim in question in any manner, shape or form was ever presented to the commissioners by anyone. Paredes v. Moya. In case of money claims, death of defendant during the pendency of his appeal from the judgment rendered against him, the appeal should not be dismissed; it should continue, but the deceased defendant should be substituted by his legal representative, namely, the executor or administrator of the estate. If the judgment of the lower court is affirmed, the plaintiff must afterwards go to the probate court for an order directing the executor or administrator to satisfy the judgment. The Court of First Instance that originally rendered the judgment has no power to order its execution and a levy on the properties of the deceased because the same are already in custodia legis in the probate court where administration proceedings for the settlement of the estate of the deceased defendant are already pending De Bautista v. de Guzman. De Bautista, et al. lost their right to recover because of negligence and a failure to observe mandatory provisions of the law and the Rules, particularly Rule 86, Sec. 5 which requires that creditors of a decedent must proffer their claim against the estate during the testate or intestate proceedings, or if there is none, should commence the same for that purpose. This rule is MANDATORY. The requirement abovementioned is for the purpose of protecting the estate of the deceased. The executor or administrator is informed of the claims against it, thus enabling him to examine each claim and to determine whether it is a proper one which should be allowed. The failure of de Bautista, et al. to present their claims before the intestate proceedings of the estate of Rosendo de Guzman within the prescribed period constituted a bar to a subsequent claim against the estate or a similar action of the same import PNB v. CA. PNB may no longer pursue by civil action the recovery of the balance of indebtedness after having foreclosed the property securing the same. The case at bar, we must stress, involves a foreclosure of mortgage arising out of a settlement of estate, wherein the administrator mortgaged a property belonging to the estate of the decedent, pursuant to an authority given by the probate court. The Rules of Court on Special Proceedings comes into play decisively. The rule grants to the mortgagee three distinct, independent and mutually exclusive remedies that can be alternatively pursued by the mortgage creditor for the satisfaction of his credit in case the mortgagor dies. Clearly PNB has chosen the mortgage-creditor’s option of extrajudicially foreclosing the mortgaged property of the Chuas. This choice now bars any subsequent deficiency claim against the estate of the deceased, Antonio M. Chua.

C. Procedure, Secs 9-14 Ignacio v. PamBusCo. Money claim of Pambusco against estate of deceased, based on a final judgment awarded to Pambusco against deceased. SC says Pambusco’s claim may properly be admitted by the probate court, because of the circumstance of the case where the administrator of the estate actively participated in collection suit trial, such that the same may be construed as sufficient notice to the estate of the claim. Bachrach Motors v. Icarangal. Plaintiff-appellant is barred from foreclosing the real estate mortgage after it has elected to sue and obtain a personal judgment against the defendant-appellee on the promissory note for the payment of which the mortgage was constituted as a security. In sustaining the rule that prohibits a mortgage-creditor from pursuing both remedies of a personal action for debt or a real action to foreclose the mortgage, the Court held that a rule which would authorize the mortgage-creditor to bring a personal action against the mortgage-debtor and simultaneously or successively another action against the mortgaged property, would result not only in multiplicity of suits so offensive to justice and obnoxious to law and equity, but would also subject the mortgage-debtor to the vexation of being sued in the place of his residence or of the residence of the mortgage-creditor, and then again in the place where the property lies. Soriano v. Parsons. Administrator v Mortgagee, disputing over validity of the foreclosure sale. Administrator says that mortgagee already elected an option under sec. 7 of Rule 86 so he can no longer use foreclosure as remedy. SC says the mortgagee is not barred. Election by the creditor of any of the 3 options is not jurisdictional, and as long as no positive forward step has been taken by him in pursuance of the option already chosen, he is not precluded from dropping the option already chosen and resorting to any of the 2 other options available to him. Manalansan v. Castaneda. Under Sec. 1, Rule 87, it is an action which survives. Being so, the judgment rendered therein may be enforced by a writ of execution. An action to enforce a lien on property may be prosecuted by the interested person against the executor or administrator independently of the testate or intestate proceedings "for the reason that such claims cannot in any just sense be considered claims against the estate, but the right to subject specific property to the claim arises from the contract of the debtor whereby he has during life set aside certain property for its payment, and such property does not, except in so far as its value may exceed the debt, belong to the estate. Since the mortgaged property in question does not belong to the estate of the late Salvador Danan, the probate court has no jurisdiction over the property in question, and that the respondent Judge had abused his discretion in delegating the execution of the judgment to the probate court. MOREOVER, Sec. 7, Rule 86 DOES NOT confer jurisdiction upon the probate court, of limited jurisdiction, to enforce a mortgage lien. Nor can it be relied upon as a ground to delegate the execution of the judgment of foreclosure to the probate court. Section 7 of Rule 86 merely reserves a right to the executor or administrator of an estate to redeem a mortgaged or pledged property of a decedent which the mortgage or pledgee has opted to foreclose, instead of filing a money claim with the probate court. De los Reyes v. CFI. Under section 424 of the Code of Civil Procedure, an attachment may be obtained at or after the commencement of the plaintiff's "action." The word "action," as used in this provision, includes in our opinion a proceeding for the foreclose of a mortgage. This is of course directed primarily to the property covered by the mortgage, but under section 260 of the Code of Civil Procedure, the mortgage creditor is entitled to judgment for any excess remaining due upon the mortgage debt after the mortgaged property shall have been sold; and this judgment for the balance due is entered upon motion in the foreclosure proceeding itself. This fact, taken in connection with the statement of the affidavit to the effect that the mortgaged property was insufficient in value to cover the indebtedness due to the plaintiff, made a case where it was proper to grant an attachment upon the facts stated.

Rule 87 – Actions By and Against Executors and Administrators Sec. 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 actions 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. Sec. 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 the deceased, actions for causes which survive. Sec. 3. Heir may not sue until have share 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 until the time allowed for paying debts has expired. chan robles virtual law library

17

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

Sec. 4. Executor or administrator may compound with debtor. - With 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. Sec. 5. Mortgage due estate may be foreclosed. - A mortgage belonging to the estate of a deceased person, as mortgagee or assignee of the right of a mortgagee, may be foreclosed by the executor or administrator. 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 to real or personal estate, or the last will and testament 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. Sec. 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, accounts, or other papers belonging to such estate as came to his possession in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear to render such account, the court may punish him for contempt as having disobeyed a lawful order of the court. Sec. 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. Sec. 9. Property fraudulently conveyed by deceased may be recovered; When executor or administrator must bring action. - When there is 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 a 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, nor 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. Sec. 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 creditors 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 has been made by the deceased in his lifetime in favor of the executor or administrator, the action which a creditor may bring shall be in the name of all the creditors, and permission of the court and filing of bond as above prescribed, are not necessary.

Romualdez v. Tiglao. The original judgment which was rendered on May 31, 1960, has become stale because of its non-execution after the lapse of five years. (Sec. 6, Rule 39 of the Rules of Court.) Accordingly, it cannot be presented against the Estate of Felisa Tiglao unless it is first revived by action. This is precisely why the appellees have instituted the second suit whose object is not to make the Estate of Felisa Tiglao pay the sums of money adjudged in the first judgment but merely to keep alive said judgment so that the sums therein awarded can be presented as claims against the estate in Special Proc. No. Q-10731 of the Court of First Instance of Rizal. Pascual v. Pascual. Although the general rule is that actions for the recovery or protection of the property or rights of the deceased for causes which survive may be prosecuted or defended by his executor or administrator, the case at bar falls under the exceptions because the executor or administrator is unwilling or fails or refuses to act, in which event to heirs may act in his place. Here, the fictitious sale is alleged to have been made to the defendants, one of them, Miguel S. Pascual, being the executor appointed by the probate court. Such executor naturally would not bring an action against himself for recovery of the fishpond. His refusal to act may, therefore, be implied. Velasquez v. George. It is within the jurisdiction of the trial court and the heirs are the proper parties. What the complaint sought to annul were documents of title which vested ownership over the three parcels of land in question to defendant-mortgagee Villanueva, who is neither an officer, a stockholder nor a director of the corporation, but a third party. Clearly, the lower court had jurisdiction over the controversy. The fact that the plaintiffs-appellants subsequently questioned the legality of the constitution of the board of directors of the corporation did not divest the court of its jurisdiction. The case should fall under the exception, rather than the general rule that pending proceedings for the settlement of the estate, the heirs have no right to commence an action arising out of the rights belonging to the deceased." The case at bar falls under such an exception. Valera v. Inserto. This function of resolving whether or not property should be included in the estate inventory is, to be sure, one clearly within the Probate Court's competence, although the Court's determination is only provisional in character, not conclusive, and is subject to the final decision in a separate action that may be instituted by the parties. Resulting from the exercise of primary jurisdiction over the question of ownership involving estate property claimed by the estate, the decision of the court where the separate action is filed must be deemed superior to otherwise contrary orders issued by the Probate Court in the exercise of what may be, regarded as merely secondary, or provisional, jurisdiction over the same question. Rioferio v. CA. The rules 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. 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.

Rule 88 – Payments of the Debts of the Estate Sec. 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 debts, the executor or administrator shall pay the same within the time limited for that purpose. Sec. 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 debts, the expenses of administration, or the family expenses, they shall be paid according to the provisions of the will; but if the provisions 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. Sec. 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 that purpose, or its sale would redound to the detriment of the participants of the estate, the whole of the real estate not disposed 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. Sec. 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 absolute, or, if the estate is insolvent, sufficient to pay a portion equal to the dividend of the other creditors. Sec. 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

18

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

present their claims, it may be allowed by the court if not disputed by the executor or administrator, and, if disputed, it may be proved and allowed or disallowed by the court as the facts may warrant. If the contingent claim is allowed, the creditor shall receive payment to the same extent as the other creditors if the estate retained by the executor or administrator is sufficient. But if the claim is not so presented, after having become absolute, within said two (2) years, and allowed, the assets retained in the hands of the executor or administrator, not exhausted in the payment of claims, shall be distributed by the order of the court to the persons entitled to the same; but the assets so distributed may still be applied to the payment of the claim when established, and the creditor may maintain an action against the distributees to recover the debt, and such distributees and their estates shall be liable for the debt in proportion to the estate they have respectively received from the property of the deceased. Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession. - Where devisees, legatees, 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. Sec. 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. Sec. 8. Dividends to be paid in proportion to claims. - If there are no assets sufficient to pay the credits of any one class of creditors after paying the credits entitled to preference over it, each creditor within such class shall be paid a dividend in proportion to his claim. No creditor of any one class shall receive any payment until those of the preceding class are paid. Sec. 9. Estate of insolvent nonresident, how disposed of. - In case administration is taken in the Philippines of the estate of a person who was at the time of his death an inhabitant of another country, and who died insolvent, his 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. Sec. 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 deceased person there found is not equally apportioned to the creditors residing in the Philippines and the other creditors, according to their respective claims. Sec. 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. Sec. 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 distribution 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. Sec. 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 distribution of assets. Sec. 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 administrator 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. Sec. 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 nor so that the whole period allowed to the original executor or administrator shall exceed two (2) years. Sec. 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 Sec. 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. Sec. 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 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 encumbrances 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. Sec. 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. Sec. 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 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. Sec. 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 the same manner as for the payment of debts or legacies in the Philippines.

19

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

Sec. 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 circumstances and under the same regulations as prescribed in this rule for the sale, mortgage, or other encumbrance of other real estate. 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 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 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, 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.

Sec. 8. When a court may authorize conveyance or 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 the court shall execute the deed. The deed executed by such executor, administrator, or clerk of court shall be as effectual 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. Sec. 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 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.

De la Cruz v. de la Cruz. The averment as to the value of the personal estate of a deceased person, in a probate proceeding, is an essential and necessary requisite to a petition for the sale of real estate and that a Court of First Instance acquires no jurisdiction to order such sale if that averment does not appear in the petition; that such an order is void and that a sale of real estate by virtue of such an order is null and void. Godoy v. Orellano. A sale by an administrator of property of the deceased, which is not authorized by the probate court is null and void and title does not pass to the purchaser. Manotok Realty v. CA. There is nothing in the records that will show that Don Vicente Legarda was the administrator of the paraphernal properties of Dona Clara Tambunting during the lifetime of the latter. Thus, it cannot be said that the sale which was entered into by the private respondent and Don Vicente Legarda had its inception before the death of Dona Clara Tambunting and was entered into by the former for and on behalf of the latter, but was only consummated after her death. Rafols v. Barba. It is true that when an application is made by an administrator to sell real property of the estate for the payment of debts, expenses and other obligations of the estate, an application must be filed with the probate court which may grant the same on written notice to the heirs, devices and legatees (Section 2, Rule 89). It is also the rule that a sale of property of the estate without such notice to the heirs, devices and legatees is void. Equally unassailable is the statutory pronouncement that an action declaring the inexistence of a void contract does not prescribe. (Art. 1410, New Civil Code). But Rafols, et al. cannot rely on these established legal rules because none applies in the case at bar. Rafols, et al. FAILED to present any conclusive proof that no notice was indeed served or given to them. In the absence of a positive showing that the requirements for securing the authority to sell had not been complied with, it is appropriate to apply the presumptions that the law had been obeyed; that official duty has been regularly performed; and that private transactions had been fair and regular. (Sec. 5, pars. m. p and ff. Rule 131) When, by the order of the court, a property of the estate is sold under this provision, the purchaser in good faith may rest on he presumption of the legality of the court's order. (presumption of regularity) WT Construction v. Cañete. 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 Pahamotang v. PNB. Nowhere in the evidence was there any indication that the children as heirs were properly notified in compliance with Rule 89, hence the encumbrances are void.

Rule 90 – Distribution and Partition of Estate Sec. 1. When order for distribution of residue 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 person 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 to 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. Sec. 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. Sec. 3. By whom expenses of partition paid. - If at the time of the distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying for the sum assessed. Sec. 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.

20

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

See also Rule 109. Dael v. IAC. The lower court did not err in allowing the withdrawal of funds for distribution to the heirs as advance inheritance. The respondent court correctly held than "if oppositors would stand to share more in the inheritance than what was fixed for them in the appealed judgment, the estate has sufficient assets to ensure an equitable distribution of the inheritance in accordance with law and final judgment in the proceedings." Also, it does not appear that there are unpaid obligations, as contemplated in Rule 90, for which provisions should have been made or a bond required. It is clear that the provisions of the Rules of Court, as well as the jurisprudence thereon, were followed in this particular incident. Camia de Reyes v. Reyes de Ilano. Reyes de Ilano filed her opposition saying that the expenses in the report are unnecessary and inaccurate. SC said Reyes de Ilano can indeed impugn the report of the committee on claims and appraisals because the same is not conclusive and the courts are not bound by it. But the expenses therein (except for the copies of the assessed value of properties) are necessary because Camia de Reyes is a widow of a decedent of good standing. The court also clarified that the properties in question constitute conjugal property of the husband with his first wife because they were acquired during the marriage. The ultimate effect was that there was no error in the court’s act of approving the counterproject of partition proposed by the oppositor Garcia v. Orozco. After the death of one of the spouses, in case it is necessary to sell any portion of the community property in order to pay outstanding obligations of the conjugal partnership, such sale must be made in the manner and with the formalities established by the Rules of Court for the sale of the property of deceased persons (e.g. written notice to heirs, etc). Any sale, transfer, alienation or disposition of said property effected without d formalities shall be null and void, except as regards the portion that belongs to the vendor as determined in the l iquidation and partition. Pending the liquidation, the disposition must be considered as to the only to the contingent share or interest of the vendor in the particular property involved, but not to the corpus of the property. Such disposition cannot include the half that may be adjudicated to the heirs of the deceased spouse.This rule applies, not only to sale, but also to mortgages. The alienation, mortgage or disposal of the conjugal property without the required formality, is not, however, null ab initio, for the law recognizes their validity, so long as they do not exceed the portion which, after liquidation and partition, should pertain to the surviving spouse who made the contract. Of course, before liquidation and partition have been completed, such portion cannot be determined. Sanchez v. CA. Although denominated a compromise agreement, the document in this case is essentially a deed of partition, pursuant to Art. 1082 CC which provides that every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. For a partition to be valid, Section 1, Rule 74 RoC, requires the concurrence of the following conditions: (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 and liquidators are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives; and (4) the partition was made by means of a public instrument or affidavit duly filed with the Register of Deeds. All the foregoing requisites are present in this case. Therefore the compromise agreement/partition in this case is valid. Under Section 1, Rule 90 RoC, an order for the distribution of the estate may be made when the "debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any," had been paid. This order for the distribution of the estate's residue must contain the names and shares of the persons entitled thereto. A perusal of the whole record reveals that all the foregoing requirements already concurred in this case. De Leon v. CA. This is not an order for collation but merely an order including the subject properties in the inventory of the estate of the deceased. As such, it is only an interlocutory order.

III. Escheat Rule 91.

Sec. 1. When and by whom petition filed. - When a person dies intestate, seized of real or personal 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. Sec. 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 deem best. Sec. 3. Hearing and judgment. - Upon the 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 deceased in the Philippines, after the payment of just debts and charges, shall escheat; and shall, pursuant to law, assign the personal 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. Such 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 only the income from the property shall be used. Sec. 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 said time shall be forever barred. Sec. 5. Other actions for escheat. - Until otherwise provided by law, actions for 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.

Mun. Council of San Pedro v. Castillo. Petitioner can either obstruct the expropriation proceedings nor prevent the court from naming commissioners on appraisal pursuant to the provisions of section 243 of the Code of Civil Procedure. The present case, the Colegio de San Jose and Carlos Young, the defendants, expressly admitted in their answers the right of the Government of the Philippines to expropriate the portion of land described in the complaint and in the plan attached thereto, for which reason the respondent judge was perfectly authorized to proceed with the appointment of commissioners. While it is true that the petitioner, as intervenor in said case, claimed to the holder of rights adverse to those of the Colegio de San Jose and Carlos Young, all the right invoked by it consists in that of an alleged beneficiary In re Estate of Lao Sayco, Municipality of Mambajao wants to revert to itself the property of Rafanan. Court said the reversion is not proper because the municipality failed to observe the requirements laid down by Sec. 750 of the Code of Civil Procedure

IV. Guardianship A. Of incompetents who are not minors

Rule 92 – Venue Sec. 1. Where to institute proceedings. - Guardianship of the person or estate of a minor or incompetent may be instituted in the Court of First Instance of the province, or in the justice of the peace court of the municipality, or in the municipal court of the chartered city where the minor or incompetent person resides, and if he resides in a foreign country, in the Court of First Instance of the province wherein his property or part thereof is situated; provided, however, that where the value of the property of such minor or incompetent exceeds the jurisdiction of the justice of the peace or municipal court, the proceedings shall be instituted in the Court of First Instance.

In the City of Manila, the proceedings shall be instituted in the Juvenile and Domestic Relations Court. Sec. 2. Meaning of word "incompetent." - Under this rule, the word "incompetent" includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation.

21

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

Sec. 3. Transfer of venue. - The court taking cognizance of a guardianship proceeding, may transfer the same to the court of another province or municipality wherein the ward has acquired real property, if he has transferred thereto his bona-fide residence, and the latter court shall have full jurisdiction to continue the proceedings, without requiring payment of additional court fees.

Parco v. CA. Jurisdiction is vested in the court and not in any particular branch/judge. Also, the various branches of the CFI are coordinate and co-equal courts, one branch stands on the same level as the other. TRUE, it is recognized that 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. || The jurisdiction of the court in guardianship proceedings vis-à-vis Rule 96, Sec. 6 is to cite persons suspected of having embezzled, concealed or conveyed the property belonging to the ward for the purpose of obtaining information which may be used in an action later to be instituted by the guardian to protect the right of the ward. The guardianship court exercising special and limited jurisdiction cannot actually order the delivery of the property of the ward found to be embezzled, concealed or conveyed. Only in extreme cases, where property clearly belongs to the ward or where his title thereto has been already judicially decided, may the court direct its delivery to the guardian. In effect, there can only be delivery or return of the embezzled, concealed or conveyed property of the ward, where the right or title of said ward is clear and undisputable. HOWEVER, where title to any property said to be embezzled, concealed or conveyed is in dispute, the determination of said title or right whether in favor of the person said to have embezzled, concealed or conveyed the property must be determined in a separate ordinary action and not in guardianship proceedings. Paciente v. Dacuycuy. While it is true that in previous cases we ruled that where title to any property said to be embezzled, concealed or conveyed is in question, the determination of said title or right whether in favor of the ward or in favor of the person said to have embezzled, concealed or conveyed the property must be determined in a separate ordinary action and not in guardianship proceedings, we also emphasized that if the right or title of the ward to the property is clear and indisputable the court may issue an order directing its delivery or return. Garcia vda. de Chua v. CA.

1) W/N the petition filed by Vallejo was only for guardianship and not for letters of administration NO. The title alone of the original petition clearly shows that the petition is one which includes the issuance of letters of administration.

2) W/N the original petition contains the jurisdictional facts required in a petition for the issuance of letters of administration. YES. Even though the original petition failed to indicate the residence of the deceased at the time of death, such omission was cured by the amended petitions

3) W/N petitioner has legal standing to file the M2D NO. She failed to prove her status as the surviving wife of the decedent since she couldn’t produce their marriage contract || Only an interested person may oppose the petition for issuance of letters of administration. 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; his interest is material and direct, and not one that is only indirect or contingent

4) Deprivation of due process? NO, since she wasn’t an interesteted, party, then she is not entitled to notice of the proceedings of the trial court

5) What was the proper remedy for petitioner? an ordinary appeal, not a special civil action for certiorari; which can be availed of if a party has no plain, speedy and adequate remedy in the ordinary course of law. Except for her bare allegation that an ordinary appeal would be inadequate, nothing on record would indicate that extraordinary remedy of certiorari or prohibition is warranted.

6) W/N the ruling of the CA treating the Special Proceeding No. 331 as one for both guardianship and settlement of estate is in contravention of Gomez vs. Imperial: “The distribution of the residue of the estate of the deceased is a function pertaining property not to the guardianship proceedings, but to another proceeding which the heirs are at liberty to initiate.” NO.

Rule 93 – Appointment of Guardians Sec. 1. Who may petition for appointment of guardian for resident. - Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. An officer of the Federal Administration of the United States in the Philippines may also file a petition in favor of a ward thereof, and the Director of Health, in favor of an insane person who should be hospitalized, or in favor of an isolated leper. Sec. 2. Contents of petition. - A petition for the appointment of a general guardian must show, so far as known to the petitioner:

(a) The jurisdictional facts; (b) The minority or incompetency rendering the appointment necessary or convenient; (c) The names, ages, and residences of the relatives of the minor or incompetent, and of the persons having him in their care; (d) The probable value and character of his estate; (e) The name of the person for whom letters of guardianship are prayed. The petition shall be verified; but no defect in the petition or verification shall render void the issuance of letters of guardianship.

Sec. 3. Court to set time for hearing; Notice thereof. - When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age or the incompetent himself, and may direct other general or special notice thereof to be given. Sec. 4. Opposition to petition. - Any interested person may, by filing a written opposition, contest the petition on the ground of majority of the alleged minor, competency of the alleged incompetent, or the unsuitability of the person for whom letters are prayed, and may pray that the petition be dismissed, or that letters of guardianship issue to himself, or to any suitable person named in the opposition. Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition the alleged incompetent must be present if able to attend, and it must be shown that the required notice has been given. Thereupon the court shall hear the evidence of the parties in support of their respective allegations, and, if the person in question is a minor, or incompetent it shall appoint a suitable guardian of his person or estate, or both, with the powers and duties hereinafter specified. Sec. 6. When and how guardian for nonresident appointed; Notice. - When a person liable to be put under guardianship resides without the Philippines but has estate therein, any relative or friend of such person, or any one interested in his estate, in expectancy or otherwise, may petition a court having jurisdiction for the appointment of a guardian for the estate, and if, after notice given to such person and in such manner as the court deems proper, by publication or otherwise, and hearing, the court is satisfied that such nonresident is a minor or incompetent rendering a guardian necessary or convenient, it may appoint a guardian for such estate. Sec. 7. Parents as guardians. - When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child's property, with the duties and obligations of guardians under these rules, and shall file the petition required by section 2 thereof. For good reasons the court may, however, appoint another suitable person. Sec. 8. Service of judgment. - Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated. FC, 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires. FC, 223. The parents or, in their absence or incapacity, the individual, entity or institution exercising parental authority, may petition the proper court of the place where the child resides, for an order providing for disciplinary measures over the child. The child shall be entitled to the assistance of counsel, either of his choice or appointed by the court, and a summary hearing shall be conducted wherein the petitioner and the child shall be heard.

However, if in the same proceeding the court finds the petitioner at fault, irrespective of the merits of the petition, or when the circumstances so warrant, the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. FC, 224. The measures referred to in the preceding article may include the commitment of the child for not more than thirty days in entities or institutions engaged in child care or in children's homes duly accredited by the proper government agency.

22

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

The parent exercising parental authority shall not interfere with the care of the child whenever committed but shall provide for his support. Upon proper petition or at its own instance, the court may terminate the commitment of the child whenever just and proper. (391a) FC, 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary.

Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians.

A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated.

The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved.

The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. FC, 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise.

The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. FC, 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus give in whole or in part shall not be charged to the child's legitime. Yangco v. CFI. The decree declaring the petitioner a spendthrift is void for lack of jurisdiction. The Court held that the Rules require personal notice to the alleged spendthrift when he is a resident of the Philippine Islands. It provides that notice is “to be given to the supposed insane or incompetent person of the time and place of hearing the petition, not less than five days before the time so appointed; and such person, if able to attend, must be produced on the hearing.” Therefore, the notice to the mother- in- law and brother- in – law of the alleged spendthrift was of no legal value.

Guerrero v. Teran. There is nothing in the law which requires the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here. Nery v. Lorenzo. "When a petition for the appointment of a general guardian is filed, the court shall fix a time and place for hearing the same, and shall cause reasonable notice thereof to be given to the persons mentioned in the petition residing in the province, including the minor if above 14 years of age or the incompetent himself, and may direct other general or special notice thereof to be given." (Sec. 3, Rule 93) THIS IS JURISDICTIONAL! Service of the notice upon the minor if above 14 years of age or upon the incompetent, is jurisdictional. Without such notice, the court acquires no jurisdiction to appoint a guardian." Zafra-Sarte v. CA. It is to be admitted that the excerpt resulted from the realization of this Court that there was the fear, not without basis, that the property of the person adjudged incompetent could be frittered away during the pendency of such appeal or converted to the use of designing persons. The above consideration does not detract from the general principle announced that such appointment of a guardian should be considered good until reversed or set aside on appeal. No such weighty and persuasive reason that would call for a different ruling may be discussed. The above statement from the opinion of Justice Moreland is thus impressed with a force sufficient to give more than legal color to what was ordered by the Court of Juvenile and Domestic Relations of Manila. For it to yield deference to such a pronouncement by this Court cannot certainly earn the stigma of a grave abuse of discretion.

Rule 94 – Bond of Guardians Sec. 1. Bond to be given before issuance of letters; Amount; Conditions. - Before a guardian appointed enters upon the execution of his trust, or letters of guardianship 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 the estate, real and personal, of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him;

(b) To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward;

(c) To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto;

(d) To perform all orders of the court by him to be performed. Sec. 2. When new bond may be required and old sureties discharged. - Whenever it is deemed necessary, the court may require a new bond to be given by the guardian, and may discharge the sureties on the old bond from further liability, after due notice to interested persons, when no injury can result therefrom to those interested in the estate. Sec. 3. Bonds to be filed; Actions thereon. - Every bond given by a guardian shall be filed in the office of the clerk of the court, and, in case of the breach of a condition thereof, may be prosecuted in the same proceeding or in a separate action for the use and benefit of the ward or of any other person legally interested in the estate.

Rule 95 – Selling and Encumbering Property of Ward Sec. 1. Petition of guardian for leave to sell or encumber estate. - When the income of an estate under guardianship is insufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, or when it appears that it is for the benefit of the ward that his real estate or some part thereof be sold, or mortgaged or otherwise encumbered, and the proceeds thereof put out at interest, or invested in some productive security, or in the improvement or security of other real estate of the ward, the guardian may present a verified petition to the court by which he was appointed setting forth such facts, and praying that an order issue authorizing the sale or encumbrance. Sec. 2. Order to show cause thereupon. - If it seems probable that such sale or encumbrance is necessary, or would be beneficial to the ward, the court shall make an order directing the next of kin of the ward, and all persons interested in the estate, to appear at a reasonable time and place therein specified to show cause why the prayer of the petition should not be granted. Sec. 3. Hearing on return of order; Costs. - At the time and place designated in the order to show cause, the court shall hear the proofs and allegations of the petitioner and next of kin, and other persons interested, together with their witnesses, and grant or refuse the prayer of the petition as the best interests of the ward require. The court shall make such order as to costs of the hearing as may be just. Sec. 4. Contents of order for sale or encumbrance, and how long effective; Bond. - If, after full examination, it appears that it is necessary, or would be beneficial to the ward, to sell or encumber the estate, or some portion of it, the court shall order such sale or encumbrance and that the proceeds thereof be expended for the maintenance of the ward and his family, or the education of the ward, if a minor, or for the putting of the same out at interest, or the investment of the same as the circumstances may require. The order shall specify the causes why the sale or encumbrance is necessary or beneficial, and may direct that estate ordered sold be disposed of at either public or private sale, subject to such conditions as to the time and manner of payment, and security where a part of the payment is deferred, as in the discretion of the court are deemed most beneficial to the ward. The original bond of the guardian shall stand as security for the proper appropriation of the proceeds of the sale, but the judge may, if deemed expedient, require an additional bond as a condition for the granting of the order of sale. No order of sale granted in pursuance of this section shall continue in force more than one (1) year after granting the same, without a sale being had.

23

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

Sec. 5. Court may order investment of proceeds and direct management of estate. - The court may authorize and require the guardian to invest the proceeds of sales or encumbrances, and any other of his ward's money in his hands, in real estate or otherwise, as shall be for the best interest of all concerned, and may make such other orders for the management, investment, and disposition of the estate and effects, as circumstances may require.

Pardo de Tavera v. El Hogar. It is not necessary for a grant of authority to the guardian to sell the estate of the ward to state that the income “is insufficient to maintain the ward and his family or to maintain or educate the ward when a minor.” It is enough, as the other alternative of the law provides, that “it appears to the satisfaction of the court that it is for the benefit of the ward that his real estate or some part thereof should be sold, and the proceeds thereof put out at interest, or invested in some productive security.”

Rule 96 – General Powers and Duties of Guardians Sec. 1. To what guardianship shall extend. - A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship. Sec. 2. Guardian to pay debts of ward. - Every guardian must pay the ward's just debts out of his personal estate and the income of his real estate, if sufficient; if not, then out of his real estate upon obtaining an order for the sale or encumbrance thereof. Sec. 3. Guardian to settle accounts, collect debts, and appear in actions for ward . - A guardian must settle all accounts of his ward, and demand, sue for, and receive all debts due him, or may, with the approval of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of the estate and effects; and he shall appear for and represent his ward in all actions and special proceedings, unless another person be appointed for that purpose. Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. - A guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereon, so far as may be necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell or encumber the real estate, upon being authorized by order so to do, and apply so much of the proceeds as may be necessary to such maintenance. Sec. 5. Guardian may be authorized to join in partition proceedings after hearing. - The court may authorize the guardian to join in an assent to a partition of real or personal estate held by the ward jointly or in common with others, but such authority shall only be granted after hearing, upon such notice to relatives of the ward as the court may direct, and a careful investigation as to the necessity and propriety of the proposed action. Sec. 6. Proceedings when person suspected of embezzling or concealing property of ward. - Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any money, goods, or interest, or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to appear for examination touching such money, goods, interest, or instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance. Sec. 7. Inventories and accounts of guardians, and appraisement of estates. - A guardian must render to the court an inventory of the estate of his ward within three (3) months after his appointment, and annually after such appointment an inventory and account, the rendition of any of which may be compelled upon the application of an interested person. Such inventories and accounts shall be sworn to by the guardian. All the estate of the ward described in the first inventory shall be appraised. In the appraisement the court may request the assistance of one or more of the inheritance tax appraisers. And whenever any property of the ward not included in an inventory already rendered is discovered, or succeeded to, or acquired by the ward, like proceedings shall be had for securing an inventory and appraisement thereof within three (3) months after such discovery, succession, or acquisition. Sec. 8. When guardian's accounts presented for settlement. - Expenses and compensation allowed. Upon the expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. In the settlement of the account, the guardian, other than a parent, shall be allowed the amount of his reasonable expenses incurred in the execution of his trust and also such compensation for his services as the court deems just, not exceeding fifteen per centum of the net income of the ward. CC, 736. Guardians and trustees cannot donate the property entrusted to them.

Rule 97 – Termination of Guardianship Sec. 1. Petition that competency of ward be adjudged, and proceedings thereupon. - A person who has been declared incompetent for any reason, or his guardian, relative, or friend, may petition the court to have his present competency judicially determined. The petition shall be verified by oath, and shall state that such person is then competent. Upon receiving the petition, the court shall fix a time for hearing the questions raised thereby, and cause reasonable notice thereof to be given to the guardian of the person, so declared incompetent, and to the ward. On the trial, the guardian or relatives of the ward, and, in the discretion of the court, any other person, may contest the right to the relief demanded, and witnesses may be called and examined by the parties or by the court on its own motion. If it be found that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease. Sec. 2. When guardian removed or allowed to resign; New appointment. - When a guardian becomes insane or otherwise incapable of discharging his trust or unsuitable therefor, or has wasted or mismanaged the estate, of failed for thirty (30) days after it is due to render an account or make a return, the court may, upon reasonable notice to the guardian, remove him, and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. A guardian may resign when it appears proper to allow the same; and upon his resignation or removal the court may appoint another in his place. Sec. 3. Other termination of guardianship. - The marriage or voluntary emancipation of a minor ward terminates the guardianship of the person of the ward, and shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. The guardian of any person may be discharged by the court when it appears, upon the application of the ward or otherwise, that the guardianship is no longer necessary. Sec. 4. Record to be kept by the justice of the peace or municipal judge. - When a justice of the peace or municipal court takes cognizance of the proceedings in pursuance of the provisions of these rules, the record of the proceedings shall be kept as in the court of first instance. Sec. 5. Service of judgment. - Final orders or judgments under this rule shall be served upon the civil registrar of the municipality or city where the minor or incompetent person resides or where his property or part thereof is situated. c See FC, 134-236. RA 6809. Crisostomo v. Endencia. In order that a court taking cognizance of the guardianship of an incompetent may issue a valid order restoring him to capacity it is necessary, under this section (1) that a verified petition be presented by the incompetent, his guardian, or any relative of such person within the third degree, or any friend of his; (2) that said petition should allege that the incompetent has recovered his mental faculties or his legal capacity, as the case may be; and (3) that upon receiving the petition the court should set the same for hearing and notify the guardian and the incompetent thereof. The requisites of section 562 have at least been substantially complied with and that the notice and the hearing were unnecessary and superfluous. Vda. de. Bengson v. PNB. The grounds for which a guardian may be removed are found in Section 2, Rule 98 of the Rules. Since the Rules enumerate the grounds for removal of a guardian, a guardian cannot be legally removed from office except for the causes therein mentioned. In re Guardianship of Inchausti. The notification of the ward required in the RULES is not intended as a personal service of process in the sense necessary to give the court jurisdiction over the ward. It is, therefore, of no moment that the person to be notified was living in a foreign country and thus beyond the territorial jurisdiction of the Manila court. Nor is the manner in which the court procured service of the notice of any importance. It is sufficient that the notice was given

B. Of minors Guardianship of Minors, A.M. 03-02-05 SC

24

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

V. Trusteeship Rule 98

Sec. 1. Where trustee appointed. - A trustee necessary to carry into effect the provisions of a will or written instrument shall be appointed by the Court of First Instance in which the will was allowed if it be a will allowed in the Philippines, otherwise by the Court of First Instance of the province in which the property, or some portion thereof, affected by the trust is situated. Sec. 2. Appointment and powers of trustee under will; Executor of former trustee need not administer trust. - If a testator has omitted in his will to appoint a trustee in the Philippines, and if such appointment is necessary to carry into effect the provisions of the will, the proper Court of First Instance may, after notice to all persons interested, appoint a trustee who shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. No person succeeding to a trust as executor or administrator of a former trustee shall be required to accept such trust. Sec. 3. Appointment and powers of new trustee under written instrument. - When a trustee under a written instrument declines, resigns, dies, or is removed before the objects of the trust are accomplished, and no adequate provision is made in such instrument for supplying the vacancy, the proper Court of First Instance may, after due notice to all persons interested, appoint a new trustee to act alone or jointly with the others, as the case may be. Such new trustee shall have and exercise the same powers, rights, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested, in the trustee in whose place he is substituted; and the court may order such conveyance to be made by the former trustee or his representatives, or by the other remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either alone or jointly with the others. Sec. 4. Proceedings where trustee appointed abroad. - When land in the Philippines is held in trust for persons resident here by a trustee who derives his authority from without the Philippines, such trustee shall, on petition filed in the Court of First Instance of province where the land is situated, and after due notice to all persons interested, be ordered to apply to the court for appointment as trustee; and upon his neglect or refusal to comply with such order, the court shall declare such trust vacant, and shall appoint a new trustee in whom the trust estate shall vest in like manner as if he had been originally appointed by such court. Sec. 5. Trustee must file bond. - Before entering on the duties of his trust, a trustee shall file with the clerk of the court having jurisdiction of the trust a bond in the amount fixed by the judge of said court, payable to the Government of the Philippines and sufficient and available for the protection of any party in interest, and a trustee who neglects to file such bond shall be considered to have declined or resigned the trust; but the court may until further order exempt a trustee under a will from giving a bond when the testator has directed or requested such exemption, and may so exempt any trustee when all persons beneficially interested in the trust, being of full age, request the exemption. Such exemption may be cancelled by the court at any time and the trustee required to forthwith file a bond. Sec. 6. Conditions included in bond. - The following conditions shall be deemed to be a part of the bond whether written therein or not:

(a) That the trustee will make and return to the court, at such time as it may order, a true inventory of all the real and personal estate belonging to him as trustee, which at the time of the making of such inventory shall have come to his possession or knowledge;

(b) That he will manage and dispose of all such estate, and faithfully discharge his trust in relation thereto, according to law and the will of the testator or the provisions of the instrument or order under which he is appointed;

(c) That he will render upon oath at least once a year until his trust is fulfilled, unless he is excused therefrom in any year by the court, a true account of the property in his hands and of the management and disposition thereof, and will render such other accounts as the court may order;

(d) That at the expiration of his trust he will settle his accounts in court and pay over and deliver all the estate remaining in his hands, or due from him on such settlement, to the person or persons entitled thereto.

But when the trustee is appointed as a successor to a prior trustee, the court may dispense with the making and return of an inventory, if one has already been filed, and in such case the condition of the bond shall be deemed to be altered accordingly. Sec. 7. Appraisal; Compensation of trustee. - When an inventory is required to be returned by a trustee, the estate and effects belonging to the trust shall be appraised and the court may order one or more inheritance tax appraisers to assist in the appraisement. The compensation of the trustee shall be fixed by the court, if it be not determined in the instrument creating the trust. Sec. 8. Removal or resignation of trustee. - The proper Court of First Instance may, upon petition of the parties beneficially interested and after due notice to the trustee and hearing, remove a trustee if such removal appears essential in the interests of the petitioners. The court may also, after due notice to all persons interested, remove a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. A trustee, whether appointed by the court or under a written instrument, may resign his trust if it appears to the court proper to allow such resignation. Sec. 9. Proceedings for sale or encumbrance of trust estate. - When the sale or encumbrance of any real or personal estate held in trust is necessary or expedient, the court having jurisdiction of the trust may, on petition and after due notice and hearing, order such sale or encumbrance to be made, and the reinvestment and application of the proceeds thereof in such manner as will best effect the objects of the trust. The petition, notice, hearing, order of sale or encumbrance, and record of proceedings, shall conform as nearly as may be to the provisions concerning the sale or encumbrance by guardians of the property of minors or other wards

CC, 1443. No express trusts concerning an immovable or any interest therein may be proved by parol evidence. CC, 1444. No particular words are required for the creation of an express trust, it being sufficient that a trust is clearly intended. CC, 1445. No trust shall fail because the trustee appointed declines the designation, unless the contrary should appear in the instrument constituting the trust. CC, 1446. Acceptance by the beneficiary is necessary. Nevertheless, if the trust imposes no onerous condition upon the beneficiary, his acceptance shall be presumed, if there is no proof to the contrary. De Leon v. Molo-Peckson. A declaration of trust has been defined as an act by which a person acknowledges that the property, title to which he holds, is held by him for the use of another. This is precisely the nature of the will of the donor: to convey the titles of the lands to appellants with the duty to hold them in trust for the appellees. Appellants complied with this duty by executing the document under consideration. The document in question clearly and unequivocally declares the existence of the trust even if the same was executed subsequent to the death of the trustor, Juana, for it has been held that the right creating or declaring a trust need not be contemporaneous or inter-parties. It was even held that an express trust maybe declared by a writing made after the legal estate has been vested in the trustee. It is true that the alleged declaration of trust was revoked, and having been revoked it cannot be accepted, but the attempted revocation did not have any legal effect. The rule is that in the absence of any reservation of the power to revoke a voluntary trust is irrevocable without the consent of the beneficiary. Heirs of Yap v. CA. A trust may either be express or implied. Express trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words evincing an intention to create a trust. Implied trusts are those which, without being express, are deducible from the nature of the transaction as matters of intent or, independently of the particular intention of the parties, as being superinduced on the transaction by operation of law basically by reason of equity. These species of implied trust are ordinarily subdivided into resulting and constructive trusts. A resulting trust is one that arises by implication of law and presumed always to have been contemplated by the parties, the intention as to which can be found in the nature of their transaction although not expressed in a deed or instrument of conveyance. Resulting trusts are based on the equitable doctrine that it is the more valuable consideration that the legal title that determines the equitable interest in property. Upon the other hand, a constructive trust is a trust not created by any word or phrase, either expressly or impliedly, evincing a direct intention to create a trust, but one that arises in order to satisfy the demands of justice. It does not come about by agreement or intention but in main by operation of law construed against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold.

VI. Adoption and Custody of Minors A. Adoption – see separate document for rules/laws

1. Rule on Adoption – AM No. 02-6-02 2. RA 8552. 3. RA 8043.

B. Custody

25

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

AM 03-04-04 SC – see separate document Perez v. CA. Since the Code does not qualify the word “separation” to mean “legal separation” decreed by a court, couples who are separated in fact, such as petitioner and private respondent, are covered within its terms. || a child under seven years of age shall not be separated from his mother unless the court finds compelling reasons to order otherwise. The use of the word “shall” in Article 213 of the Family Code and Rule 99, Section 6 of the Revised Rules of Court connotes a mandatory character. Only the most compelling of reasons shall justify the court’s awarding the custody of such a child to someone other than his mother, such as her unfitness to exercise sole parental authority. (Examples: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity and being sick with a communicable diseases) In the case at bench, financial capacity is not a determinative factor inasmuch as both parties have demonstrated that they have ample means. Rep. v. Hernandez. Turning now to the present petition, while it is true that there is no express prohibition against the joinder of a petition for adoption and for change of name, we do not believe that there is any relation between these two petitions, nor are they of the same nature or character, much less do they present any common question of fact or law, which conjointly would warrant their joinder. In short, these petitions do not rightly meet the underlying test of conceptual unity demanded to sanction their joinder under our Rules. Sy v. CA. In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents || Sec. 6, Rule 99 expressly acknowledges and authorizes that the matter of care and custody of the children may be raised and adjudicated as an incident to any proceeding, such as a case for habeas corpus

VII. Hospitalization of Insane Persons Rule 101.

Sec. 1. Venue; Petition for commitment. - A petition for the commitment of a person to a hospital or other place for the insane may be filed with the Court of First Instance of the province where the person alleged to be insane is found. The petition shall be filed by the Director of Health in the all cases where, in his opinion, such commitment is for the public welfare, or for the welfare of said person who, in his judgment, is insane, and such person or the one having charged of him is opposed to his being taken to a hospital or other place for the insane. Sec. 2. Order for hearing. - If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date for the hearing thereof, and copy of such order shall be served on the person alleged to be insane, and to the one having charge of him, or on such of his relatives residing in the province or city as the judge may deem proper. The court shall furthermore order the sheriff to produce the alleged insane person, if possible, on the date of the hearing. Sec. 3. Hearing and judgment. - Upon satisfactory proof, in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, and that his relatives are unable for any reason to take proper custody and care of him, the court shall order his commitment to such hospital or other place for the insane as may be recommended by the Director of Health. The court shall make proper provisions for the custody of property or money belonging to the insane until a guardian be properly appointed. Sec. 4. Discharge of insane. - When, in the opinion of the Director of Health, the person ordered to be committed to a hospital or other place for the insane is temporarily or permanently cured, or may be released without danger he may file the proper petition with the Court of First Instance which ordered the commitment. Sec. 5. Assistance of fiscal in the proceeding. - It shall be the duty of the provincial fiscal or in the City of Manila the fiscal of the city, to prepare the petition for the Director of Health and represent him in court in all proceedings arising under the provisions of this rule.

China Ah Foo v. Concepcion. Considering Art. 8 as in force and construing this article and Sec.1048, we think that the Attorney-General was right in expressing the opinion that the Director of Health was without power to release, without proper judicial authority, any person confined by order of the court in an asylum pursuant to the provisions of Art. 8. We think also that the converse proposition is equally tenable, and is that any person confined by order of the court in an asylum in accordance with Art. 8 cannot be discharged from custody in an insane asylum until the views of the Director of Health have been ascertained as to whether or not the person is temporarily or permanently cured or may be released without danger. In other words, the powers of the courts and the Director of Health are complementary each with the other. As a practical observation, it may further be said that it is well to adopt all reasonable precautions to ascertain if a person confined in an asylum as insane should be permitted to leave the asylum, and this can best be accomplished through the joint efforts of the courts and the Director of Health in proper cases.

VIII. Habeas Corpus Rule 102.

Sec. 1. To what habeas corpus extends. - Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Sec. 2. Who may grant the writ. - The writ of habeas corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before the Court of First Instance, or any judge thereof for the hearing and decision on the merits. It may also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district. Sec. 3. Requisites of application therefor. - Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth:

(a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty; (b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may

be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (c) The place where he is so imprisoned or restrained, if known; (d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the

imprisonment or restraint is without any legal authority, such fact shall appear. Sec. 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. Sec. 5. When the writ must be granted and issued. - A court or judge authorized to grant the writ must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any officer or person to serve it. Sec. 6. To whom writ directed, and what to require. - In case of imprisonment or restraint by an officer, the writ shall be directed to him, and shall command him to have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to an officer, and shall command him to take and have the body of the person restrained of his liberty before the court or judge designated in the writ at the time and place therein specified, and to summon the person by whom he is restrained then and there to appear before said court or judge to show the cause of the imprisonment or restraint. Sec. 7. How prisoner designated and writ served. - The person to be produced should be designated in the writ by his name, if known, but if his name is not known he may be otherwise described or identified. The writ may be served in any province by the sheriff or other proper officer, or by a person deputed by the court or judge. Service of the writ shall be made by leaving the original with the person to whom it is directed and preserving a copy on which to make return of service. If that person cannot be found, or has not the prisoner in his custody, then the service shall be made on any other person having or exercising such custody.

26

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

Sec. 8. How writ executed and returned. - The officer to whom the writ is directed shall convey the person so imprisoned or restrained, and named in the writ, before the judge allowing the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ, unless, from sickness or infirmity of the person directed to be produced, such person cannot, without danger, be brought before the court or judge; and the officer shall make due return of the writ, together with the day and the cause of the caption and restraint of such person according to the command thereof. Sec. 9. Defect of form. - No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appears therefrom in whose custody or under whose restraint the party imprisoned or restrained is held and the court or judge before whom he is to be brought. Sec. 10. Contents of return. - When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably:

(a) Whether he has or has not the party in his custody or power, or under restraint; (b) If he has the party in his custody or power, or under restraint, the authority and the true and whole cause thereof, set forth at large, with a

copy of the writ, order, execution, or other process, if any, upon which the party is held; (c) If the party is in his custody or power or is restrained by him, and is not produced, particularly the nature and gravity of the sickness or

infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; (d) If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, particularly to

whom, at what time, for what cause, and by what authority such transfer was made. Sec. 11. Return to be signed and sworn to. - The return or statement shall be signed by the person who makes it; and shall also be sworn to by him if the prisoner is not produced, and in all other cases unless the return is made and signed by a sworn public officer in his official capacity. Sec. 12. Hearing on return; Adjournments. - When the writ is returned before one judge, at a time when the court is in session, he may forthwith adjourn the case into the court, there to be heard and determined. The court or judge before whom the writ is returned or adjourned must immediately proceed to hear and examine the return, and such other matters as are properly submitted for consideration, unless for good cause shown the hearing is adjourned, in which event the court or judge shall make such order for the safekeeping of the person imprisoned or restrained as the nature of the case requires. If the person imprisoned or restrained is not produced because of his alleged sickness or infirmity, the court or judge must be satisfied that it is so grave that such person cannot be produced without danger, before proceeding to hear and dispose of the matter. On the hearing the court or judge shall disregard matters of form and technicalities in respect to any warrant or order of commitment of a court or officer authorized to commit by law. Sec. 13. When the return evidence, and when only a plea. - If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts. Sec. 14. When person lawfully imprisoned recommitted, and when let to bail. - If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. If he be admitted to bail, he shall forthwith file a bond in such sum as the court or judge deems reasonable, considering the circumstances of the prisoner and the nature of the offense charged, conditioned for his appearance before the court where the offense is properly cognizable to abide its order or judgment; and the court or judge shall certify the proceedings, together with the bond, forthwith to the proper court. If such bond is not so filed, the prisoner shall be recommitted to confinement. Sec. 15. When prisoner discharged if no appeal. - When the court or judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released. chan robles virtual law library Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. - A clerk of a court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, and may also be punished by the court or judge as for contempt. Sec. 17. Person discharged not to be again imprisoned. - A person who is set at liberty upon a writ of habeas corpus shall not be again imprisoned for the same offense unless by the lawful order or process of a court having jurisdiction of the cause or offense; and a person who knowingly, contrary to the provisions of this rule, recommits or imprisons, or causes to be committed or imprisoned, for the same offense, or pretended offense, any person so set at liberty, or knowingly aids or assists therein, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action, notwithstanding any colorable pretense or variation in the warrant of commitment, and may also be punished by the court or judge granting writ as for contempt. Sec. 18. When prisoner may be removed from one custody to another. - A person committed to prison, or in custody of an officer, for any criminal matter, shall not be removed therefrom into the custody of another officer unless by legal process, or the prisoner be delivered to an inferior officer to carry to jail, or, by order of the proper court or judge, be removed from one place to another within the Philippines for trial, or in case of fire, epidemic, insurrection, or other necessity or public calamity; and a person who, after such commitment, makes, signs, or countersigns any order for such removal contrary to this section, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action. Sec. 19. Record of writ, fees and costs. - The proceedings upon a writ of habeas corpus shall be recorded by the clerk of the court, and upon the final disposition of such proceedings the court or judge shall make such order as to costs as the case requires. The fees of officers and witnesses shall be included in the costs taxed, but no officer or person shall have the right to demand payment in advance of any fees to which he is entitled by virtue of the proceedings. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic of the Philippines, and paid out of its Treasury; when a person in custody by virtue or under color of proceedings in a civil case is discharged, the costs shall be taxed against him, or against the person who signed the application for the writ, or both, as the court shall direct .

Moncupa v. Enrile. Even though the petitioner concedes that his temporary release is an improvement upon his actual detention, restrictions that were imposed by respondents, constitutes an involuntary and illegal restraint on his freedom . Villavicencio v. Lukban. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. || The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. || A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. In re Ashaf v. Kunting. In accordance with the last sentence of Section 4 of Rule 102, the writ cannot be issued and Kunting cannot be discharged since he has been charged with a criminal offense. Bernarte v. Court of Appeals holds that "once the person detained is duly charged in court, he may no longer question his detention by a petition for the issuance of a writ of habeas corpus." Burgos v. Macapagal-Arroyo. The CA shall rule on the merits of the habeas corpus petition in light of the evidence previously submitted to it, the proceedings already conducted, and the subsequent developments in this case (particularly the CHR report) as proven by evidence properly adduced before it. The Court of Appeals and the parties may require Prosecutor Emmanuel Velasco, Jeffrey Cabintoy, Edmund Dag-uman, Melissa Concepcion Reyes, Emerito Lipio and Marlon Manuel to testify in this case.

27

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

IX. Change of Name and Cancellation or Correction of Entries in the Civil Registry Rule 103.

Sec. 1. Venue. - A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court.chanrobles virtua law library Sec. 2. Contents of petition. - A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought; (c) The name asked for.

Sec. 3. Order for hearing. - If the petition filed 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, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice. Sec. 4. Hearing. - Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. Sec. 5. 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 allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition. Sec. 6. Service of judgment. - Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register.

Rule 108. Sec. 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located. Sec. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization (k) election, loss or recovery of citizenship (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. Sec. 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. Sec. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. Sec. 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. Sec. 6. Expediting proceedings. - The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. Sec. 7. Order. - After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

Laws – see separate document

1. CC, 376. 2. RA 9048. 3. IRR of 9048.

Cases: Haw Liong v. Republic. The State has an interest in the names borne by individuals for purposes of identification and that a change of name is a privilege and not a matter of right. Thus, before a person can be authorized to change the name given him either in his certificate of birth or civil registry, he must show proper or reasonable cause or any compelling reason which may justify such change. Otherwise, the request should be denied || The following may be considered, among others, as proper or reasonable causes that may warrant the grant of a petitioner for change of name: (1)when the name is ridiculous, tainted with dishonor, or is extremely difficult to write or pronounce; (2) when the request for change is a consequence of a change of status, e.g. when a natural child is acknowledged or legitimated; and (3) when the change is necessary to avoid confusion Llaneta v. Agraba. The principle upon which the lower court relied upon remains valid but only to the extent that the proposed change of name would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or to the community in general. In the case at bar, however, the Serafin's mother, Victoria, and his 2 remaining brothers, Nehemias and Ruben, have come forward in earnest support of the petition. Adequate publication of the proceeding has not elicited the slightest opposition from the relatives and friends of the late Serafin. Clearances from various Government agencies show that Teresita has a spotless record. And the State, which has an interest in the name borne by every citizen within its realm for purposes of identification, interposed no opposition at the trial after a searching cross-examination, of Teresita and her witnesses. Whether the late Serafin, who died some five years before Teresita was born, would have consented or objected to her use of his surname is open to speculation. One thing, however, is beyond cavil: those living who possess the right of action to prevent the surname Ferrer from being smeared are proud to share it with her. Secan Kok v. Republic. The rules are very explicit. Section 2 of Rule 103 of the Revised Rules of Court provides that a petition for a change of name shall be signed and verified by the person desiring his name to be changed, or some other person in his behalf. There is need therefore for a separate petition to be filed by the wife Lucia O. Tee, who is already of age, in her own behalf and in behalf of her minor children. || Then again, to confer jurisdiction on the court, since petitions for change of name are proceedings in rem, strict compliance with the requirements is essential, namely, that such verified petition should be published for three (3) successive weeks in some newspapers of general circulation in the province; and that both the title or caption of the petition and its body shall recite (1) the name or names or aliases of the applicant; (2) the cause for which the change of name is sought; and (3) the name or names or aliases of the applicant; (2) the cause for which the change of name is sought; and (3) the new name asked for. The reason for these requirements is that a change of name is a matter of public interest. The petitioner might be in, the rogues' gallery or hiding to avoid service of sentence or compliance with a judgment in a criminal case, or could have escaped from prison; or if an alien, he might have given cause for deportation or might be one against whom an order of deportation was issued or that the new name the petitioner desires to adopt may be similar to that of a respectable person and the latter might have evidence that petitioner is of unsavory reputation that might impair his own good name. Being a privilege and not a right, a change of name lies within the discretion of the court give or withhold. Failure to comply with these jurisdictional requirements, renders the proceedings a nullity. Villegas v. Fernando. So, long as a decree of registration has not been issued, registration proceedings are still pending for the purposes of the pre-Commonwealth Act 3110, and, when lost or destroyed, must be reconstituted in conformity with said act. Republic v. Cagandahan. Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed || Nature has instead taken its due course in respondent's development to reveal more fully his male characteristics. In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one's sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH.

28

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

Braza v. Civil Registrar. In a special proceeding for correction of entry under Rule 108, the trial court has no jurisdiction to nullify marriages and rule on legitimacy and filiation. || Rule 108 vis a vis Article 412, CC charts the procedure by which an entry in the civil registry may be cancelled or corrected. The proceeding contemplated therein may generally be used only to correct clerical, spelling, typographical and other innocuous errors in the civil registry. || A clerical error is one which is visible to the eyes or obvious to the understanding; an error made by a clerk or a transcriber; a mistake in copying or writing, or a harmless change such as a correction of name that is clearly misspelled or of a misstatement of the occupation of the parent. || Substantial or contentious alterations may be allowed only in adversarial proceedings, in which all interested parties are impleaded and due process is properly observed Corpuz v. Sto. Tomas. The alien spouse can claim no right under the 2nd par. of Art. 26 of the FC as the substantive right it establishes is in favor of the Filipino spouse || Rule 108 sets in detail the jurisdictional and procedural requirements that must be complied with before a judgment, authorizing the cancellation or correction, may be annotated in the civil registry. It also requires, among others, that the verified petition must be filed with the RTC of the province where the corresponding civil registry is located; that the civil registrar and all persons who have or claim any interest must be made parties to the proceedings; and that the time and place for hearing must be published in a newspaper of general circulation. As these basic jurisdictional requirements have not been met in the present case, we cannot consider the petition Gerbert filed with the RTC as one filed under Rule 108. This ruling should not be construed as requiring 2 separate proceedings for the registration of a foreign divorce decree in the civil registry – one for recognition of the foreign decree and another specifically for cancellation of the entry under Rule 108. The recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special proceedings is precisely to establish the status or right of a party or a particular fact. Moreover, Rule 108 can serve as the appropriate adversarial proceeding by which the applicability of the foreign judgment can be measured and tested in terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake of law or fact

X. Voluntary Dissolution of Corporations – see separate document Corporation Code, 117-122. FRIA, RA 10142. AM No. 00-8-10-SC AM No. 04-9-07-SC Note: Petition for Rehabilitation is also a special proceeding, and under the FRIA, may be converted to a liquidation proceeding – dissolution of corporation (please note pertinent sections of the FRIA)

XI. Recognition of Minor Natural Children FC, 163 - FC, 182. See separate document RA 9255. See separate document IRR of RA 9255. See separate document Taneo v. CA.

Facts: As a result of a judgment against them, two of petitioners’ properties were levied to satisfy the judgment amount. Subject properties were auctioned and subsequently conveyed to private respondent. One of the properties was the family home of the petitioners. Held: Since money judgment/debt was rendered/incurred before the house was erected and instrument constituting it as family home was registered, the family home is not exempted from execution or forced sale. Besides, house should be constructed on land not belonging to another.

Uyguangco v. CA. since he seeks to prove his filiation under the second paragraph of Article 172 of the Family Code, his action is now barred because of his alleged father's death in 1975. The second paragraph of this Article 175 reads as follows: “The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.”

XII. Constitution of a Family Home FC, 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. CC, 152 -162.

**Please note other Special Proceedings under the Family Code (See The Family Courts Act, and other related laws under Persons and Family Relations) XIII. Absentees

Rule 107. Sec. 1. Appointment of representative. - When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the Court of First Instance of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionally in all that may be necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court. Sec. 2. Declaration of absence; who may petition. - After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or of five (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the following:

(a) The spouse present; (b) The heirs instituted in a will, who may present an authentic copy of the same; (c) The relatives who would succeed by the law of intestacy; and (d) Those who have over the property of the absentee some right subordinated to the condition of his death.

Sec. 3. Contents of petition. - The petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or an administrator, must show the following:

(a) The jurisdictional facts; (b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be presented, and of the relatives who would succeed by

the law of intestacy; (c) The names and residences of creditors and others who may have any adverse interest over the property of the absentee; (d) The probable value, location and character of the property belonging to the absentee.

Sec. 4. Time of hearing; notice and publication thereof. - When a petition for the appointment of a representative, or for the declaration of absence and the appointment of a trustee or administrator, is filed, the court shall fix a date and place for the hearing thereof where all concerned may appear to contest the petition.

Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best. Sec. 5. Opposition. - Anyone appearing to contest the petition shall state in writing his grounds therefor, and served a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing. Sec. 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4 of this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the representative, trustee or administrator for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, trustee or administrator, regulating them by the rules concerning guardians.

In case of declaration of absence, the same shall not take effect until six (6) months after its publication in a newspaper of general circulation designated by the court and in the Official Gazette. Sec. 7. Who may be appointed. - In the appointment of a representative, the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court.

29

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

In case of declaration of absence, the trustee or administrator of the absentee's property shall be appointed in accordance with the preceding paragraph. Sec. 8. Termination of administration. - The trusteeship or administration of the property of the absentee shall cease upon order of the court in any of the following cases:

(a) When the absentee appears personally or by means of an agent; (b) When the death of the absentee is proved and his testate or intestate heirs appear; (c) When a third person appears, showing by a proper document that he has acquired the absentee's property by purchase or other title. In these cases the trustee or administrator shall cease in the performance of his office, and the property shall be placed at the disposal of those who

may have a right thereto. CC, 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.

This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. CC, 382. The appointment referred to in the preceding article having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians. CC, 383. In the appointment of a representative, the spouse present shall be preferred when there is no legal separation.

If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. CC, 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. CC, 385. The following may ask for the declaration of absence:

(1) The spouse present; (2) The heirs instituted in a will, who may present an authentic copy of the same; (3) The relatives who may succeed by the law of intestacy; (4) Those who may have over the property of the absentee some right subordinated to the condition of his death.

CC, 386. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. FC, 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. FC, 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. FC, 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse

contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession.

Jones v. Hortiguela. On this point (recording of marriage), the court a quo very correctly stated as follows: Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be fined not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such certificate to the municipal secretary annuls the marriage. || Madridejo vs. De Leon:"The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in articulo mortis failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not being one said requisites." Tol-Noquera v. Villamor. DAYA’s disqualification as an heir does not inhibit her from petitioning for a declaration of absence or to be appointed as an administratrix of the absentee's estate. Per the Civil Code, when a person disappears from his domicile his whereabouts being unknown, and without leaving an agent to administer his property the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary (Art. 381). The spouse present shall be preferred as such representative when there is no legal separation. But if the absentee left no spouse, ANY competent person may be appointed by the court. (Art. 383). PERIODS: After 2 years without any news about the absentee or since the receipt of the last news, and 5 years in case the absentee has

left a person in charge of the administration of his property, his absence may be declared. (Art. 384). The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation (Art. 386).

The following may ask for the declaration of absence: (1) The spouse present; (2) The heirs instituted in a will, who may present an authentic copy of the same; (3) The relatives who may succeed by the law of intestacy; (4) Those who may have over the property of the absentee some right subordinated to the condition of his death (Art. 385).

RULE: It is NOT necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for administration. The question of whether the administrator may inherit the property to be administered is not controlling.

What is material is whether DAYA is one of those allowed by law to seek the declaration of absence of REMEGIO and whether she is competent to be appointed as administratrix of his estate sadly, the trial court did not even bother to look into these issues!

XIV. Other Writs (see separate document for full text of AMs)

A. Writ of Amparo, AM 07-9-12-SC Tapuz v. del Rosario. The writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. || The Rule on the Writ of Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands - requires that every petition for the issuance of the Pwrit must be supported by justifying allegations of fact, to wit:

(a) The personal circumstances of the petitioner; (b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or

uncertain, the respondent may be described by an assumed appellation;

30

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for. Issues relating to the right to life or to liberty can hardly be discerned except to the extent that the occurrence of past violence has been

alleged. The right to security, on the other hand, is alleged only to the extent of the threats and harassments implied from the presence of "armed men bare to the waist" and the alleged pointing and firing of weapons. Notably, none of the supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or is continuing.

Roxas v. Macapagal-Arroyo. It must be stated at the outset that the use by the petitioner of the doctrine of command responsibility as the justification in impleading the public respondents in her amparo petition, is legally inaccurate, if not incorrect. The doctrine of command responsibility is a rule of substantive law that establishes liability and, by this account, cannot be a proper legal basis to implead a party-respondent in an amparo petition. || The writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate remedial measures and directives that may be crafted by the court, in order to address specific violations or threats of violation of the constitutional rights to life, liberty or security. While the principal objective of its proceedings is the initial determination of whether an enforced disappearance, extralegal killing or threats thereof had transpired—the writ does not, by so doing, fix liability for such disappearance, killing or threats, whether that may be criminal, civil or administrative under the applicable substantive law. Rubrico v. Macapagal-Arroyo. it would be inappropriate to apply to these proceedings the doctrine of command responsibility, as the CA seemed to have done, as a form of criminal complicity through omission, for individual respondents’ criminal liability, if there be any, is beyond the reach of amparo. || The writ of amparo was conceived to provide expeditious and effective procedural relief against violations or threats of violation of the basic rights to life, liberty, and security of persons; the corresponding amparo suit, however, “is not an action to determine criminal guilt requiring proof beyond reasonable doubt x x x or administrative liability requiring substantial evidence that will require full and exhaustive proceedings.” Salcedo v. Bollozos. The present case involves concerns that are purely property and commercial in nature – concerns that we have previously ruled are not covered by the Writ of Amparo Razon v. Tagitis. Yano v. Sanchez. Sections 17 and 18 of the Amparo Rule lay down the requisite standard of proof necessary to prove either party’s claim. The requisite standard of proof – substantial evidence - speaks of the clear intent of the Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in resolving amparo petitions. To the appellate court, the evidence adduced in the present case failed to measure up to that standard– substantial evidence which a reasonable mind might accept as adequate to support a conclusion. Since respondents did not avail of any remedy against the adverse judgment, the appellate court’s decision is, insofar as it concerns them, now beyond the ambit of review. || Section 14 of the Amparo Rule provides for interim or provisional reliefs that the courts may grant in order to, inter alia, protect the witnesses and the rights of the parties, and preserve all relevant evidence such as Temporary Protection Order, Inspection Order and Production Order. These provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition.

B. Writ of Habeas Data, AM No. 08-1-16-SC Castillo v. Cruz. From the above-quoted provisions, the coverage of the writs is limited to the protection of rights to life, liberty and security. And the writs cover not only actual but also threats of unlawful acts or omissions. || To thus be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, liberty and security is violated or threatened with an unlawful act or omission. Evidently, the present controversy arose out of a property dispute between the Provincial Government and respondents. Absent any considerable nexus between the acts complained of and its effect on respondents’ right to life, liberty and security, the Court will not delve on the propriety of petitioners’ entry into the property Roxas v. Macapagal-Arroyo, supra. Meralco v. Lim. The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right to life, liberty and security against abuse in this age of information technology. || It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules || The writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under the context of the due process clause of the Constitution.

C. Writ of Kalikasan, Rule of Procedure for Environmental Cases, AM No 09-6-8-SC. Oposa v. Factoran. Such a right ,as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. Needless to say, every generation has a responsibility tothe next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come Hernandez v. Placer Dome.

XV. Alternative Dispute Resolution, AM No. 07-11-08-SC XVI. Appeals

Rule 109. Sec. 1. Orders or judgments from which appeals may be taken. - An interested person may appeal in special proceedings from an order or judgment rendered by a Court of First Instance or a Juvenile and Domestic Relations Court, where such order or judgment: (a) Allows or disallows a will; (b) Determines who are the lawful heirs of a deceased person, or the distributive share of the estate to which such person is entitled; (c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset

to a claim against it; (d) Settles the account of an executor, administrator, trustee or guardian; (e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final

determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and

(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for a new trial or for reconsideration.

Sec. 2. Advance distribution in special proceedings. - Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules.

Dais v. Garduño. An interlocutory order is one which does not of itself definitely settle or conclude any of the rights of the parties to the action. Applying this test it is clear that the orders here in question were not of that kind; if carried out they would operate to divest the estate of important property rights and amount to a final determination of these rights. || The court below may possibly have been misled by the provision in section 123 of the Code

31

Special Proceedings Finals reviewer Prof. C. de la Cerna 2nd Semester A.Y. 2011-2012

Janz Hanna Ria N. Serrano Special thanks to Amin, Cha, Krizel and Vien for the case digests/doctrines

of Civil Procedure, that no ruling, order or judgment shall "be the subject of appeal to the Supreme Court until final judgment is rendered for one party or the other." This provision applies to ordinary civil action, but that it cannot be accepted literally in regard to probate proceedings, is best shown by the extensive provisions for special appeals contained in sections 773 to 783 of the same Code." Testate Estate of Biascan v. Biascan. An appeal is allowed in these aforesaid cases as these orders, decrees or judgments issued by a court in a special proceeding constitute a final determination of the rights of the parties so appealing. In contrast, interlocutory orders are not appealable as these are merely incidental to judicial proceedings. In these cases, the court issuing such orders retains control over the same and may thus modify, rescind, or revoke the same on sufficient grounds at any time before the final judgment. || It is thus clear that the Order dated April 2, 1981 may be the proper subject of an appeal in a special proceeding. In special proceedings, such as the instant proceeding for settlement of estate, the period of appeal from any decision or final order rendered therein is thirty (30) days, a notice of appeal and a record on appeal being required. The appeal period may only be interrupted by the filing of a motion for new trial or reconsideration. Once the appeal period expires without an appeal or a motion for reconsideration or new trial being perfected, the decision or order becomes final. || It is well-settled that judgment or orders become final and executory by operation of law and not by judicial declaration. Thus, finality of a judgment becomes a fact upon the lapse of the reglementary period of appeal if no appeal is perfected or motion for reconsideration or new trial is filed. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law. Miranda v. CA. The Court holds that respondent appellate court misread and misapplied this Court's 1968 judgment in Dy Chun vs. Mendoza and erred in holding that respondent Judge Tantuico could change, alter and amend his predecessor's decision on the merits for recovery of properties with accounting as if it were a mere interlocutory order or process, when all this Court held (applying Fuentebella, supra) was that the decision was "not appealable" until after the accounting also ordered was rendered and approved so as to complete the relief granted whereafter respondents' "premature appeal" could then be given due course from both aspects of the decision for recovery of properties and accounting of the fruits. Dael v. IAC. It is true that "partial distribution of the decedent's estate pending the final termination of the testate or intestate proceedings should as much as possible be discouraged by the courts and, unless in extreme cases, such form of advances of inheritance should not be countenanced. The reason for this strict rule is obvious courts should guard with utmost zeal and jealousy the estate of the decedent to the end that the creditors thereof be adequately protected and all the rightful heirs assured of their shares in the inheritance." || Nevertheless, after duly considering the foregoing rules, We sustain the validity of the questioned order. The respondent court correctly held than "(i)f oppositors would stand to share more in the inheritance than what was fixed for them in the appealed judgment, We believe the estate has sufficient assets to ensure an equitable distribution of the inheritance in accordance with law and final judgment in the proceedings." Republic v. Nishina. Republic v. Marcos, supra.